If a campground owner in South Dakota already holds a state campground license from the Department of Health, does the operator also need a separate county temporary campground permit during events like the Black Hills Motorcycle Classic?
Plain-English summary
Meade County, home of the Black Hills Motorcycle Classic, was the catalyst for this opinion. With large crowds and a long-standing campground industry serving the rally, several Meade County campgrounds already held state campground licenses from the South Dakota Department of Health under SDCL ch. 34-18. In 1991, the South Dakota Legislature enacted SDCL 7-18-21, giving counties authority to require their own temporary campground permits for operations tied to fairs, carnivals, or similar gatherings.
The Meade County requester asked AG Mark Barnett the obvious follow-up: did a state-licensed campground still need a separate county permit?
Barnett said yes. The opinion walked through three doctrinal points. First, a county in South Dakota has no inherent licensing authority; it acts only on powers expressly granted by statute. SDCL 7-18-21 supplied that express authority for temporary campgrounds. Second, the statute's opening clause, "[t]he provisions of chapter 34-18 notwithstanding," meant that the state's licensing role under chapter 34-18 was not exclusive. Reading "notwithstanding" in its ordinary sense as "in spite of," the AG concluded the legislature intended dual licensing. Third, persuasive authority from other states confirmed that "dual licensing of an activity in the exercise of the police power" is permissible so long as the county requirements do not conflict with state requirements.
The opinion stopped short of analyzing what a "temporary campground" included on the ground. The statutory definition covered campgrounds operating "at a fixed location for a temporary period of time in connection with a fair, carnival, public exhibition or similar gathering." A campground operating year-round would not fit that definition; one set up specifically for the rally would.
Currency note
This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL 7-18-21 has remained in force in various forms; consult the current statutory text for any present-day operational decisions.
What the opinion meant at the time
For Meade County, the opinion cleared the way to enforce a freshly enacted county ordinance during the 1991 Sturgis rally and future rallies without worrying that state-licensed campgrounds would have a preemption defense. The county could collect its own fees by resolution and set its own permit conditions, so long as they did not conflict with state regulations.
For other South Dakota counties that hosted fairs or large public gatherings, the path was the same: pass a county ordinance under SDCL 7-18-21, set fees by resolution, and require operators to apply through the county treasurer.
For campground operators, the message was less welcome. They could not avoid the county permit by waving their state license. Operating without the county permit during a covered event was unauthorized regardless of the state license status.
Common questions
Q: Did the opinion say what a "temporary" campground is?
A: The opinion paraphrased the statute, which defined temporary as "operating at a fixed location for a temporary period of time in connection with a fair, carnival, public exhibition or similar gathering." A year-round commercial campground does not meet this definition. A site set up only during the Sturgis rally does.
Q: Can a county ordinance impose stricter conditions than the state license?
A: The opinion did not specifically address conflict situations. It said county regulations must not "conflict with the state regulation." Stricter sanitation or capacity rules at the county level are likely allowed if they layer on top of state minimums rather than contradict them. Lower county standards would not displace stricter state standards.
Q: Are the fees set by ordinance or by resolution?
A: SDCL 7-18-21 expressly says the "board of county commissioners may by resolution establish fees." That is a lower formality than ordinance.
Q: Does this opinion apply to private RV parks or KOA-type commercial campgrounds outside event season?
A: No. Those are state-licensed under chapter 34-18 and operate continuously. SDCL 7-18-21's temporary-campground definition is tied to fairs and similar gatherings.
Q: What happens if an operator obtains the state license but not the county permit during a covered event?
A: The opinion did not specify the enforcement mechanism. Counties typically enforce permit ordinances through civil fines, refusal to operate, or in some cases misdemeanor charges. Operators should check the specific county ordinance.
Background and statutory framework
The 1991 enactment of SDCL 7-18-21 reflected a practical problem. The Sturgis Motorcycle Rally drew hundreds of thousands of visitors to a small county every August, and temporary campgrounds proliferated alongside it. The Department of Health, with statewide licensing authority over campgrounds, was not positioned to scrutinize the temporary, event-tied sites with the depth a host county needed. Counties wanted authority to vet sanitation, fire safety, traffic, and other local concerns through their own permit process.
The "notwithstanding" language was the legislature's standard tool to authorize concurrent regulation. Other state statutes use similar phrasing to allow local authority to add to a state baseline rather than displace it.
The opinion's reliance on out-of-state authority (Georgia, Montana, Indiana) for the concurrent-licensing point was unusual but necessary. South Dakota's Supreme Court had not previously addressed dual licensing in the campground context.
Citations and references
Statutes:
- SDCL 7-18-21 (county temporary campground permit authority, 1991)
- SDCL ch. 34-18 (Health Regulation of Lodging and Food Service Establishments and Campgrounds)
- SDCL 34-18-9, 34-18-10, 34-18-11.1 (state campground licensing)
Cases:
- State v. Hansen, 68 N.W.2d 480 (S.D. 1955) (county has only powers expressly conferred or reasonably implied)
- American Rim and Brake, Inc. v. Zoellner, 382 N.W.2d 421 (S.D. 1986) (statutory language given plain, ordinary, popular meaning)
- Williamson v. Schmid, 229 S.E.2d 400 (Ga. 1976) ("notwithstanding" means "in spite of")
- Billings Associated Plumbing v. State Board of Plumbers, 602 P.2d 597 (Mont. 1979) (dual licensing permissible)
- Medias v. City of Indianapolis, 23 N.E.2d 590 (Ind. 1939) (state-and-local dual licensing not obnoxious)
Source
Original opinion text
OFFICIAL OPINION NO. 91-13
County licensing of temporary campgrounds
Dear Mr. Jackley:
You have requested an official opinion from this office with regard to the following factual situation.
FACTS:
Meade County is the site of the Black Hills Motorcycle Classic and a large number of campgrounds exist in the county. Several of the campgrounds are licensed by the South Dakota Department of Health under SDCL ch. 34-18. In 1991, the South Dakota Legislature enacted SDCL 7-18-21, which provides for the licensing of temporary campgrounds by counties.
Based upon the foregoing, you have asked the following question:
QUESTION:
Is a campground required to obtain a county temporary campground permit if the campground has obtained a campground license from the state of South Dakota?
Under the provisions of SDCL ch. 34-18, Health Regulation of Lodging and Food Service Establishments and Campgrounds, every campground owner is required annually to secure a license from the South Dakota Department of Health (Department) prior to maintaining, conducting, or operating a campground in this state. See SDCL 34-18-9, 34-18-10. An annual license fee, in an amount established by the Department, is also required. See SDCL 34-18-10, 34-18-11.1.
The crux of your question is whether a county has the authority to require a campground owner to obtain a temporary campground license from the county, if the owner already possesses a valid license issued by the Department under SDCL ch. 34-18. It is a well-established principle that:
A county in this state is a creature of statute and has no inherent authority. It has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied by those expressly granted.
State v. Hansen, 68 N.W.2d 480, 481 (S.D. 1955). Since a county has no inherent licensing powers, any requirement that a campground operator obtain a temporary license from the county must be expressly authorized. Such authorization was recently granted by the South Dakota legislature, through its enactment of SDCL 7-18-21, effective July 1, 1991. The new law states that:
The provisions of chapter 34-18 notwithstanding, a county may require that the owners or operators of temporary campgrounds secure a permit from the county before operating as a temporary campground within the county. For the purposes of this section, a temporary campground is any campground which operates at a fixed location for a temporary period of time in connection with a fair, carnival, public exhibition or similar gathering. The owner or operator of a temporary campground shall apply to the county treasurer upon forms provided by the county treasurer for a permit required by this section. The board of county commissioners may by resolution establish fees for a temporary campground permit.
When interpreting a statute, one must give the language its plain, ordinary and popular meaning. American Rim and Brake, Inc. v. Zoellner, 382 N.W.2d 421, 424 (S.D. 1986). The ordinary and popular meaning of the word "notwithstanding" is "without obstruction from" or "in spite of." Williamson v. Schmid, 229 S.E.2d 400, 402 (Ga. 1976) (citing Webster's Third New International Dictionary (unabridged) (1971)).
In light of this definition, the phrase "[t]he provision of chapter 34-18 notwithstanding" means that the Department's power to license campgrounds under SDCL ch. 34-18 is not exclusive. See Williamson, 229 S.E.2d at 402. Rather, SDCL 7-18-21 grants to the counties the power to license temporary campgrounds despite the existence of any separate licensing authority already held by the Department under SDCL ch. 34-18. Thus, the county's authority to the extent it is exercised in the licensing of temporary campgrounds within the county, is concurrent with that of the Department. See Billings Associated Plumbing, Heating and Cooling Contractors v. State Board of Plumbers, 602 P.2d 597, 600 (Mont. 1979).
Such dual licensing of an activity in the exercise of the police power of the state and a county is not prohibited, as long as the county regulation does not conflict with the state regulation. Id. at 599. Indeed, there is "nothing inherently obnoxious in the requirement that persons engaging in such business shall have two licenses, one issued by the state and another by a political subdivision or public corporation." Medias v. City of Indianapolis, 23 N.E.2d 590, 594 (Ind. 1939).
A county may, therefore, pass an ordinance providing for the licensing of temporary campgrounds within the county, and establish license fees by resolution. Of course, the language of the particular ordinance should be carefully worded to comply with general principles of licensing law. This ordinance, and the license requirements thereunder, would apply to an operator of a temporary campground within the county, despite the fact the operator may already possess a valid campground license from the Department.
Because my answer to your first question is "yes," it is unnecessary for me to address the remainder of your questions.
Respectfully submitted,
MARK BARNETT
ATTORNEY GENERAL
MB:PC:do