CERTAIN RANGELAND FIREFIGHTING FUNCTIONS, POWERS AND DUTIES ARE TRANSFERRED TO THE SECRETARY OF AGRICULTURE

EXECUTIVE ORDER 2002-01

    WHEREAS, Article IV, Section 8, of the constitution of the state of South Dakota provides that, "Except as to elected constitutional officers, the Governor may make such changes in the organization of offices, boards, commissions, agencies and instrumentalities, and in allocation of their functions, powers and duties, as he considers necessary for efficient administration. If such changes affect existing law, they shall be set forth in executive orders, which shall be submitted to the Legislature within five legislative days after it convenes, and shall become effective, and shall have the force of law, within ninety days after submission, unless disapproved by a resolution concurred in by a majority of all the members of either house"; and

    WHEREAS, this executive order has been submitted to the 77^th Legislative Assembly on the 5^th legislative day, being the 14^th day of January, 2002;

    IT IS, THEREFORE, BY EXECUTIVE ORDER, directed that the executive branch of state government be reorganized to comply with the following sections of this order.

GENERAL PROVISIONS

    Section 1. This executive order shall be known and may be cited as the "Executive Reorganization Order 2002-01."

    Section 2. It is the intent of this order not to repeal or amend any laws relating to functions performed by an agency, unless the intent is specifically expressed in this order or unless there is an irreconcilable conflict between this order and those laws.

    Section 3. Except when it is inconsistent with the other provisions of this order all rules, regulations and standards of the agencies involved in executive reorganization that are in effect on the effective date of this order, shall continue with full force and effect until they are specifically altered, amended, or revoked in the manner provided by law, unless the statutory authority for such rules is superseded by this order.

    Section 4. In the event that it has been determined that a function of a transferred agency, which has not been eliminated by this order, and its associated records, personnel, equipment facilities, unexpended balances or appropriations, allocations or other funds have not been clearly allocated to an agency, the Governor shall specify by interim procedures the allocation of the function and its associated resources. At the next legislative session following the issuance of such interim procedures, the Governor shall make recommendations concerning the proper allocation of the functions of transferred agencies which are not clearly allocated by this order. Any interim procedures issued in conjunction with this section shall be filed with the secretary of state.

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    Section 5. If any part of this order is ruled to be in conflict with federal requirements which are a prescribed condition to the receipt of federal aid by the state, an agency or a political subdivision, that part of this order has no effect and the Governor may by executive order make necessary changes to this order to receive federal aid, and the changes will remain in effect until the last legislative day of the next legislative session or until the Legislature completes legislation addressed to the same question, whichever comes first.

    Section 6. The effective date of this Executive Reorganization Order #2002-01 shall be ninety days after its submission to the legislature.

    Section 7. Any provisions of law in conflict with this order are superseded.

    Section 8. Whenever a function is transferred by this order, all personnel, records, property, unexpended balances of appropriations, allocations or other funds utilized in performing the function are also transferred by this order.

    Section 9. That § 34-31-1 be amended to read as follows:

     34-31-1.   The boards of county commissioners of the counties of this state may, in their discretion, cooperate with the governing bodies of organized townships or municipal corporations within their respective counties, with organized townships or municipal corporations in adjacent counties, the state forester secretary of agriculture or his designee , nonprofit fire protection corporations or associations, and with the boards of county commissioners, organized townships or municipal corporations within adjacent states when reciprocal agreements between the contracting parties have been provided in the purchase and operation of any fire-fighting equipment or fire protection to safeguard the range, farm, and forest lands within their respective counties and in prevention of fire nuisances thereon.

     Section 10. That § 34-31-2 be amended to read as follows:

     34-31-2.   The boards of county commissioners of the counties of this state may participate in cooperation with the organized townships and municipal corporations within their respective counties, organized townships, and municipal corporations in adjacent counties, or the fire-fighting agencies thereof, and with organized townships, boards of county commissioners or municipal corporations in adjacent states when reciprocal agreements between contracting parties have been provided and with the state forester secretary of agriculture or his designee in the organization and training of rural fire-fighting groups, and in the payment of the operation and maintenance of fire-fighting equipment and in the cost of suppressing fires.

     Section 11. That § 34-31-6 be amended to read as follows:

     34-31-6.   The Division of Forestry secretary of agriculture or his designee shall operate a fire equipment shop to acquire and renovate equipment and distribute federal and state excess vehicles and property to counties and volunteer fire departments for the suppression of rural fires. The vehicles and property may be provided with clear title by the division to counties and volunteer fire departments.

     Section 12. That § 34-31-8 be amended to read as follows:

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     34-31-8.   Notwithstanding the provisions of §   5-23-2, the state forester secretary of agriculture or his designee may purchase used motor vehicles and equipment at auctions of federal and state surplus property, or from public and private utility companies, irrespective of whether or not the sellers of said vehicles are licensed dealers as required by §   5-23-2, for distribution to fire departments for fire suppression.

     Section 13. That § 34-35-12.1 be amended to read as follows:

     34-35-12.1.   Any person who negligently causes a fire to be started or who does not take reasonable precautions to prevent a fire from spreading and permits a fire to spread beyond the person's control is liable for all fire suppression and extinguishment costs that were caused by the fire and that are collectable by the state forester secretary of agriculture or his designee under § §   41-20-4 and 41-20-8. For purposes of this section, the term, person, includes public utilities, railroads, and private utilities.

     Section 14. That § 34-35-16 be amended to read as follows:

     34-35-16.   The starting of an open fire within the Black Hills Forest Fire Protection District by a person or a group of persons is prohibited unless a permit to do so is first obtained from the state forester secretary of agriculture or his designee or from the United States Forest Service supervisor. An open fire as used in this section and §   34-35-17 is any fire to burn slash, brush, grass, stubble, debris, rubbish, or other inflammable material not enclosed in a stove, sparkproof incinerator, or an established fireplace approved or constructed by public agencies in designated recreation areas. A violation of this section is a Class 1 misdemeanor. Any person who violates this section is liable for civil damages for all injuries caused by the fire.

     Section 15. That § 34-35-17 be amended to read as follows:

     34-35-17.   Any United States Forest Service supervisor, or his designee, the state forester secretary of agriculture or his designee shall have authority to issue a permit upon an application to any person to start an open fire within the Black Hills Forest Fire Protection District if in his opinion such fire will not endanger the life or property of another, or deny such permit if in his opinion the climatic conditions or location of the material to be burned is such that the burning would endanger the life or property of others and he may issue a permit subject to such conditions and restrictions as he may consider necessary to prevent the spread of the fire permitted; and he may revoke a permit issued by him upon the change of climatic or other conditions which he considers would make the burning unsafe.

     Section 16. That § 34-35-18 be amended to read as follows:

     34-35-18.   The state forester secretary of agriculture or his designee may set fires in woods or prairie for the purposes of forest and range management provided that he has reasonable forces and equipment available to suppress the spread of the fire.

     Section 17. That § 34-37-19 be amended to read as follows:

     34-37-19.   Any county may, by resolution, regulate or prohibit the use of fireworks outside the boundaries of any municipality in those areas where the fire danger, as determined by use

of the rangeland fire index as established by rule promulgated pursuant to chapter 1-26 by the state forester secretary of agriculture or his designee , has reached the extreme category in that county for two consecutive days during the period from June twentieth through June twenty-seventh.

     Section 18. That § 62-1-5.2 be amended to read as follows:

     62-1-5.2.   Any firefighter who has completed the wildland firefighter training course and is a member of any county, municipal, special purpose district, or township fire department which has on file a cooperative fire suppression agreement with the South Dakota Department of Agriculture, and has been approved by the governing body for assignment to the state, is eligible for workers' compensation benefits from the state if injured during a period of time commencing from the time dispatched by the state forester secretary of agriculture or his designee until the time the firefighter returns to the location from which the firefighter was originally dispatched by the state forester secretary of agriculture or his designee . In the event of injury or death, the firefighter shall, for the purpose of computing compensation, be considered to be earning a wage that would entitle that person to the maximum compensation for death or injury allowable under this title; but in no event may payments to any firefighter exceed the maximum limitations for benefits as set out in this title.

     For purposes of determining compensation any remuneration received by a member who voluntarily serves the department may not be considered.

     No firefighter under this section may be deemed a state employee for any purpose other than eligibility to receive workers' compensation from the state under this section.

    Dated this 14^th day of January, 2002.

William J. Janklow
Governor

ATTEST: (Seal)
Joyce Hazeltine
Secretary of State