Lawyers: County burn ban doesn’t affect city

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The burn ban imposed by the Davison County Commission is not in effect in Mitchell, Ethan or Mount Vernon, according to both the Mitchell and Davison County attorneys.

As such, the Mitchell High School burning of the “M” after homecoming coronation Sept. 24 and a fireworks show after the homecoming football game Sept. 28 are still possible.

Davison County State’s Attorney Pat Smith said a city burn ordinance takes priority over county actions in such cases. Smith told Mayor Ken Tracy and other city officials that during a meeting Tuesday morning and re-iterated it Wednesday morning.

“That was my un-researched opinion and it remains so,” he said.

City Attorney Carl Koch said the county cannot impose any rules on the city, including a burn ban.

“It seems to me what Pat Smith said makes sense,” Koch said.

By state statute, cities hold the authority to control many issues under their police powers, Koch said, and burning ordinances are part of that.

But while Smith said Mitchell’s laws on public burning would take precedence, Koch said they are not even needed in this case. He said state statute is clear: Counties cannot make decisions that impact the cities or towns within their boundaries.

The upshot is that the open burning ban enacted by Davison County this summer is not in effect in Mitchell.

On Tuesday, the Davison County Commission declined to waive its burn ban for the “M” burning or for other special cases, but later in the day the Mitchell City Council approved a fireworks permit for the post-game show.

The two decisions seemed in conflict, but now it appears the county does not have the authority to ban the fiery celebration.

Superintendent Joe Graves said he will discuss holding the events with Athletic Director Geoff Gross before making a decision.

The county burn ban was imposed on July 17, but the commissioners quickly worried that it might not have enough legal authority. The commission passed a burn ordinance in August and it is now in effect, with proscribed penalties. The ban that was started in July is still the rule for unincorporated areas of the county.

Smith said that is only in effect outside the city limits of Mitchell and other unincorporated areas of the county.

“That is what I believe to be the case,” he said.

The city’s police powers allow it to set its own burn policies, Smith said.

Davison County Commission Chairman John Claggett said the commissioners weren’t sure what authority they had.

“We didn’t do the research on that,” Claggett said. “If the way the law reads is that we don’t have any governance in there, that’s fine.”

He said the ultimate decision should be left with the Mitchell Fire Division. If it advises the county to lift the ban, Claggett said the commissioners would be “more than tickled pink” to do so.

Mitchell Assistant Fire Chief Paul Morris felt the biggest concern was in the rural areas of the county. Morris advises the commission on when to impose and when to lift the ban, he and Claggett both said.

“That’s the true spirit of any county’s burn ban; it’s where we have heavy, dead vegetation,” Morris said.

Lightning strikes and careless actions including discarded cigarettes are the primary causes of wildfires, he said, and rural areas are more likely to erupt in flames because of such an incident.

“We’ve just got a lot more combustible items in the country than we do in Cadwell Park, for example,” Morris said.

He said few calls come in from Mitchell residents complaining that their neighbors are violating the city burning ordinance.

“Typically, we have not had any problems,” Morris said. “We will get calls from people complaining about smoke.”

Another question is why the city’s fireworks permit has a statement on the bottom saying the permit is not valid if a county burn ban is in place. The permit requested for Sept. 28 is for a show sponsored by The Daily Republic.

Morris said it’s the council’s call if it wants to remove that wording from the permit.

“It does lead to some confusion,” he said.

Finance Officer Marilyn Wilson said she’s unsure who designed the form, and isn’t even sure who handles the form when it is submitted for review by the City Council’s Public Health and Safety Committee.

Wilson said she thought it went to Morris; he said he thought it went to Wilson. Somehow, it ends up before the committee to decide on before reporting to the full council.

Koch said the city could still decide not to allow fireworks displays if a county burn ban is in place. Or, it could remove that wording from the permit, he said.

Wilson said perhaps that statement should be taken off the permit form.

“It’s something we need to discuss,” she said.

South Dakota codified law allows counties to impose restrictions on fireworks during two separate times of the year, but not inside city or town limits.

According to SDCL 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 South Dakota grassland fire danger index published by the National Weather Service, has reached the extreme category in that county during the period from June twentieth to July second, inclusive, and during the period from December twenty-eighth to January first, inclusive. During any such period, the county’s action is suspended if the grassland fire danger index falls below the very high category and again becomes effective if the grassland fire danger index reaches the extreme category.”

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