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Liability

Soil conservation districts are defined as “political subdivisions” and as such are subject to the liability provisions of N.D.C.C. § 32-12.1, “Liability of Political Subdivisions.”  

Governmental bodies are subject to suit for damages by individuals injured by negligent or wrongful acts or omissions of their agents and employees. Chapter 32 limits the
exposure to potential liability. There is a three-year statute of limitations for commencing an action against a political subdivision, its agents and employees. 
N.D.C.C. § 2-12.1-10.  (Supervisors are also included in the definition of the word employee.)

N.D.C.C. § 32-12.1-03.  Liability of political subdivisions — Limitations. 
1.  Each political subdivision shall be liable for money damages for injuries when the injuries are proximately caused by the negligence or wrongful act or omission of any
employee acting within the scope of the employee’s employment or office under circumstances where the employee would be personally liable to a claimant in accordance
with the laws of this state, or injury caused from some condition or use of tangible property, real or personal, under circumstances where the political subdivision, if a private
person, would be liable to the claimant.

2.  The liability of political subdivisions under this chapter is limited to a total of two hundred fifty thousand dollars per person and five hundred thousand dollars
for injury to three or more persons during any single occurrence regardless of the number of political subdivisions, or employees of such political subdivisions,
which are involved in that occurrence.  In no event may a political subdivision be held liable, or be ordered to indemnify an employee held liable, for punitive or
exemplary damages.

3.  A political subdivision is not liable for any claim based upon an act or omission of an employee of a political subdivision, exercising due care, on the execution of a statute or
regulation, whether or not that statute or regulation is valid, or based upon the exercise or performance, exercising due care, or the failure to exercise or perform a discretionary
function or duty on the part of a political subdivision or its employees, whether or not the discretion involved is abused. Specifically a political subdivision or any employee of a
political subdivision is not liable for any claim which results from:

a. The decision to undertake or the refusal to undertake any legislative or quasi-legislative act, including the decision to adopt or the refusal to adopt any statute, charter,
    ordinance, order, regulation, resolution, or resolve.                  

b. The decision to undertake or the refusal to undertake any judicial or quasi-judicial act, including the decision to grant, to grant with conditions, to refuse to grant, or to revoke
    any license, permit, order, or other administrative approval or denial.

c. The decision to perform or the refusal to exercise or perform a discretionary function or duty, whether or not such discretion is abused and whether or not the statute, charter,
    ordinance, order, resolution, regulation, or resolve under which the discretionary function or duty is performed is valid or invalid. 

d. The failure to provide or maintain sufficient personnel, equipment, or other fire protection facilities; or doing any fire extinguishment or fire prevention work, rescue, resuscitation,
    or first aid; or any other official acts within the scope of official duties; provided, however, this subsection does not provide immunity for damages resulting from acts of gross negligence.

The operation and maintenance by a political subdivision or an employee of a political subdivision of a water main system may not be considered a discretionary function or duty.    

This subsection does not limit the liability of  political subdivision or any employee of a political subdivision for a personal injury arising out of the execution of any legislative or
quasi-legislative act, judicial or quasi-judicial act, or discretionary function. 

4.    The sovereign immunity of the state is not waived in any manner by this chapter, and this chapter shall not be construed to abrogate the immunity of the state.  

5.   Nothing contained in this chapter shall be construed to obligate political subdivisions for an  amount which is more than the limitations upon liability imposed by this chapter. 
    Subject to the provisions of this chapter, any payments to persons shall constitute payment in full of any compromised claim or judgment or any final judgment under this chapter.

6.  Notwithstanding the provisions of this chapter, a political subdivision or its insurance carrier is not liable for any claim arising out of the conduct of a ride sharing arrangement, as
    defined in section 8-02-07. 

7.   A political subdivision is not liable for any claim based on an act or omission in the designation, repair, operation, or maintenance of a minimum maintenance road if that
    designation has been made in accordance with sections 24-07-35 through 24-07-37 and if the road has been maintained at a level to serve occasional and intermittent traffic.  

Grounds for Liability  
Subsection (1) of 32-12.4-03, provides two separate and independent grounds upon which a political subdivision can be held liable for injures:  (1) a political subdivision can be liable
for injuries caused by some condition or use of property in the same manner as a private person, and (2) a political subdivision can be liable for injuries caused by the negligence or
wrongful act or omission of an employee acting within the scope of the employee’s employment.  

Joint Liability  
Because chapter 32-12.1 does not immunize employees from their reckless, grossly negligent, willful, or wanton misconduct, a political subdivision and its employee may be jointly l
iable if an employee caused injury while acting within the scope of his employment in a reckless or grossly negligent manner or a willful or wanton manner.  

Respondent Superior Liability for Municipality
Although chapter 32-12.1 immunizes employees from their ordinary negligence while acting within the scope of their employment, it does not negate the liability of political subdivisions
for injuries caused by employees acting within the scope of their employment, whether or not such acts are those of ordinary negligence or reckless or grossly negligent conduct,
or willful or wanton misconduct.  The political subdivision remains liable under the doctrine of respondent superior for all acts of its employees performed within the scope of
employment to the maximum amount specified in subdivision 2 of 32-12.1-03.    

N.D.C.C. 32-12.1-04.  Political subdivision to be named in action — Personal liability of employees — Indemnification of claims and final judgments.

1.      An action for injuries proximately caused by the alleged negligence, wrongful act, or omission of an employee of a political subdivision occurring within the scope of the
employee’s employment or office shall be brought against the political subdivision. If there is any question concerning whether the alleged negligence, wrongful act, or
omission occurred within the scope of employment or office of the employee, the employee may be named as a party to the action and the issue may be tried separately.
A political subdivision must defend the employee until the court determines the employee was acting outside the scope of the employee’s employment or office.  

2.      An employee shall not be personally liable for money damages for injuries when the injuries are proximately caused by the negligence, wrongful act, or omission of the
employee acting within the scope of the employee’s employment or office.  

3.      No employee may be held liable in the employee’s personal capacity for acts of omissions of the employee occurring within the scope of the employee’s employment unless
the acts or omissions constitute reckless or grossly negligent conduct, or willful or wanton misconduct.  An employee may be personally liable for money damages for injuries
when the injuries are proximately caused by the negligence, wrongful act, or omission of the employee acting outside the scope of the employee’s employment or office.
The plaintiff in such an action bears the burden of proof to show by clear and convincing evidence that the employee was either acting outside the scope of the employee’s
employment or office or the employee was acting within the scope of employment in a reckless, grossly negligent, willful, or wanton manner.  Employees may be liable
for punitive or exemplary damages.  The extent to which an employee may be personally liable pursuant to this section and whether the employee was acting within the
scope of employment or office shall be specifically stated in a final judgment.  

4.      A political subdivision shall indemnify and save harmless an employee for any claim, whether groundless or not, and final judgment for any act or omission occurring within the scope
of employment or office of the employee. The indemnification shall be made in the manner provided by this chapter and shall be subject to the limitations herein.  

Liability of Resource Conservation and Development (RC&D) Councils 
The following information addresses the liability exposure of Soil Conservation District representatives who serve on board of directors for local RC&D councils, and whether the
liability limitations provided to them as members of political subdivisions, and the insurance coverage provided to them by the North Dakota Insurance Reserve Fund (NDIRF) will
also cover any liabilities which they may incur in their capacity as board members for RC&D councils.  

RC&D councils cannot acquire insurance from NDIRF due to their non-profit (Internal Revenue Code 501 (c) 3) status. However, the non-profit status of the councils also provides
their officers, directors, and trustees some immunity from civil liability. The immunity for directors, officers, or trustees of nonprofit organizations is governed under N.D.C.C. § 32-03-44,
which provides:   

 Immunity of officers, directors, and trustee of nonprofit organizations.
Any  person who serves as a director, officer, or trustee of a nonprofit organization that is, or would quality as a nonprofit organization that is, described in paragraphs 3, 4, 5, 6, 7, 10,
and 19 of section 501(c) of the Internal Revenue Code of 1954 as amended [26 U.S.C. 501 (c) (3), (4), (5), (6), (7), (10), and (19)] is immune from civil liability for any act of omission
resulting in damage or injury if at the time of the act or omission all of the following are met;  
1. The officer, director, or trustee was acting in good faith and in the scope of that person’s official duties as a director, officer, or trustee of the nonprofit organization. 
2.  The act of omission did not constitute willful misconduct or gross negligence on the part of the officer, director, or trustee. 
3. The officer, director, or trustee did not receive or expect to receive reimbursement for or payment of expenses in excess of two thousand dollars per year for expense actually
     incurred as a result of providing services as a director, officer, or trustee of the nonprofit organization and did not receive or expect to receive compensation or anything in lieu of
     compensation as payment  for services provided as a director, officer, or trustee of the nonprofit organization. 

Thus, a director, officer, or trustee is generally immune from civil liability for any act or omission resulting in damage or injury if such person was acting in good faith within the scope
of official duties, and if such person was not guilty of gross negligence or willful misconduct.    

However, granting civil immunity does not act to protect the director, officer, or trustee from the expenses involved in defending a civil lawsuit or claim. 

N.D.C.C. § 10-24-05 (14) provides for indemnification of nonprofit corporate directors, officers, and trustees if such persons were not guilty of gross negligence or willful misconduct,
and provides:          

14. When any claim is asserted, whether by action in court or otherwise, against any person by reason of his being or having been a director, or officer of a corporation, the court in
the proceeding in which such claim has been asserted, or any court having the requisite jurisdiction of an action instituted by such director or officer on his claim for indemnity, may
assess indemnity against the corporation, its receiver, or trustee, for the amount paid by such director or officer in satisfaction of any judgment on or in compromise of any such claim
(exclusive in either case of any amount paid to the corporation), and any expenses and costs (including attorneys’ fees) actually and necessarily incurred by him in connection therewith
to the extent that the court shall deem reasonable and equitable, provided, nevertheless, that indemnity may be assessed under this section only if the court finds that the person
indemnified was not guilty of gross negligence or willful misconduct in the performance of his duties as such director or officer. The right and  remedy provided by this section shall
be exclusive when any action brought on such claim has resulted in judgment against the person claiming indemnity, or when the person claiming indemnity has paid or agreed to pay
any sum in settlement of any such claim or action, and in such case indemnity shall be awarded only upon order of court pursuant to the provisions of this section. In all other
cases the right and remedy provided by this section shall not be exclusive, but each corporation shall have power to indemnify any director or officer or former director or officer
of such corporation against expense and costs (including attorneys’ fees) actually and necessarily incurred by him in connection with any claim asserted against him, by action in court
or otherwise, by reason of his being or having been such director or officer,  except in relation to matters as to which he shall have been guilty of gross negligence or willful misconduct
in the performance of his duties as such director or officer.

Under  N.D.C.C. § 10-24-05 (14), a nonprofit corporation has the authority to indemnify a director of officer against the costs of litigation or defending against a claim except in
cases when the officer or director has been determined to be guilty of gross negligence or willful misconduct while performing the officer’s or director’s corporate duties. However,
while the nonprofit corporation has the authority to indemnify a director or officer, they may not have the financial resources to do it. Under these circumstances, it would basically
be up to the board members to assess the propriety of attaining additional liability insurance for indemnification of officers and directors against the costs of litigation or defending
against a claim. While they may be immune from civil liability in some circumstances, this does not preclude the initiation of suits against them. 

Insurance Coverage 
32-12.1-05.  Liability insurance policy coverage.  An insurance policy or insurance contract purchased by a political subdivision or state agency or a government self-insurance
pool in which a political subdivision or state agency participates pursuant to this chapter may provide coverage for the types of liabilities established by this chapter and may provide
such additional coverage as the state agency or the governing body of the political subdivision determines to be appropriate. The insurer may not assert the defense of governmental
immunity, but this chapter confers no right upon a claimant to sue an insurer directly. If a dispute exists concerning the amount or nature of the required insurance coverage, the dispute
must be tried separately. The insurance coverage authorized by this chapter may be in addition to any insurance coverage purchased by a political subdivision or state agency pursuant
to any other provision of law and if premium savings will result therefrom, any insurance policies purchased pursuant to this chapter or any other provision of law may be written for a
period which exceeds one year. 

32-12.1-07.  Authorized insurance.   
The insurance authorized by this chapter may be provided by:  
a.    Self-insurance, which may be funded by appropriations to establish or maintain reserves for self-insurance purposes.  (Refer to Mill Levy Authorization section.)  
b.   An insurance company authorized to do business in this state which the commissioner has determined to be responsible and financially sound, considering the extent of the
     coverage required.  
c.  Any combination of the methods of obtaining insurance authorized in subdivisions   a and b.    

Nothing in this chapter shall be construed to prohibit a political subdivision or state agency from uniting with other political subdivisions and state agencies in order to purchase
liability insurance or to self-insure. 

If a political subdivision has no liability insurance coverage, its exposure for liabilities is limited to $250,000 per person and $500,000 for injury to three or more persons during
any single occurrence.  If, however, a political subdivision purchases insurance coverage in excess of those amounts, an injured plaintiff may receive judgment in the amount of
the insurance coverage. Soil conservation districts have five basic alternatives for payment of a judgment: 
1.   Carry a liability insurance policy from a licensed private insurance carrier or the North Dakota Insurance Reserve Fund (NDIRF). NDIRF can be purchased through local
      agents. 
2.   Create their own insurance reserve fund. (See Mill Levy Authorization section - Insurance Reserve Fund) 
3.   Levy five (5) mills per year to pay a judgment if the district does not carry liability insurance or have a reserve fund or the cash reserves. (See Mill Levy Authority section -
     Payment of a Judgment)  
4.   Where a compromise judgment is accepted and the judgment is reduced by at least 25%, the district may levy a tax necessary to pay the reduced judgment in accordance
      with the terms of the compromise agreement. Limitations on taxes levied to pay the reduced judgment shall not be applicable to taxes levied under this section.
       N.D.C.C. § 32-12.1-12.      (See Mill Levy Authority section  - Payment of a Compromised Amount of Judgment) 
5.    Bonds may also be issued to pay a compromised judgment.  Annual installments may be paid over a period not to exceed 25 years and at an annual rate of interest of not
      more than 25  percent.  Bonds are then payable with the levy of a general tax.  N.D.C.C. § 32-12.1-13 and 32-12.1-14.  (See Mill Levy Authority section - Payment
       of a Bond Principal and Interest of a Compromised Amount of a Judgment.)

The $250,000/500,000 liability limitation does not apply to political subdivisions if the judgment is a result of a violation of federal law; i.e., civil rights/discrimination. 
Political subdivisions can purchase up to $1,000,000 of liability insurance from the NDIRF without jeopardizing their statutory liability limitation of $250,000/500,000
under state law.  Purchasing from the NDIRF, a governmental self-insurance fund, does not waive the state’s statutory limit.  NDIRF has tested several cases to
verify this exception.  Purchasing liability insurance in excess of the $250,000/500,000 from a private insurance carrier, not utilizing NDIRF, could result in potential
judgments to the extent of your liability policy coverage.

There are two forms of liability insurance districts have utilized. They are General Liability insurance which covers premises and operations and Public Officials
Errors and Omissions insurance. The State Soil Conservation Committee strongly encourages all soil conservation districts to carry liability insurance for additional protection. 
Carefully study your insurance program to be certain your district has adequate coverage.

N.D.C.C. § 32-12.1-09  Duties of insurance commissioner.  The commissioner shall be responsible for determining the specifications for the liability insurance covering
the areas of risk as specified in this chapter. The commissioner shall require the insurance company to guarantee that its policy provides minimum coverage's pursuant to required
specifications. The commissioner may certify to political subdivisions obtaining liability insurance from an insurance company whether such company is responsible and financially
sound considering the extent of coverage which the insurance company is offering.  

District Cooperative Agreement  
The District Cooperative Agreement is another means by which districts can limit their liability exposure.  (See District Cooperative Agreement.)   

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Legal Counsel

N.D.C.C. 4-22-23  
The Soil Conservation Districts Law of North Dakota includes a provision for the state's attorney of the county to provide legal advice and counsel for the soil conservation
districts. 

Should a state's attorney have a conflict of interest, they may request an adjoining county's state's attorney to assist the district. 

In addition, the board has the power to hire legal counsel. However, it is advisable that the board seek the advice and guidance of the State Soil Conservation Committee
prior to securing the legal services of anyone other than the state's attorney.  

Questions that cannot be answered by the state's attorney should be referred to the State Soil Conservation Committee who, in turn, will ask for rulings from the Attorney
General's office.    

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Special Bulk Mailing Permit
Soil conservation districts may apply for a special non-profit rate through their local post office. This means a substantial reduction in postage costs for district mailings. 

In the past, districts have been ruled as not eligible for the special bulk rates because they were units of state government. However, the US Postal Service has ruled that
soil conservation districts may be certified to mail at the special bulk rates under the non-profit organizations (agricultural) status notwithstanding as governmental status. 
Sections 623.2 and 623.4 of the postal regulations provide the criteria for such authorization.

To apply and qualify for the purchase of a bulk mailing permit, soil conservation districts should contact their local postmaster. Districts may be requested to: 1.  File Postal
Service Form #3624;  2. Provide the state's federal tax free transaction number (45-70-0010K); and  3.  Provide supporting evidence that would show the primary purpose
of your district, such as a copy of the ND Soil Conservation Districts Law (Chapter 4-22, ND Century Code), your district's certificate of organization, annual plan of operations,
newsletter.   Information can be obtained regarding newsletter requirements and other items by calling the Mail Acceptance Specialist in Fargo at (701) 241-6155 or in Bismarck
at (701) 221-6532. 

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“Offical" ND License Plates

As political subdivisions of the State, North Dakota soil conservation districts are eligible to receive "official" license plates for district-owned vehicles.  These "official"
plates are issued at a fee considerably less than the standard motor vehicle registration fee. Application for these plates can be made through the ND Motor Vehicle
Registrar's Office, 608 E. Boulevard Avenue - Department of Transportation, Bismarck, ND 58505-0700. 

Nursery Dealer's License  
The North Dakota Commissioner of Agriculture has determined that soil conservation districts dealing with nursery stock plantings for the prevention of soil and wind
erosion, or other conservation-type plantings, are exempt from a dealer's license and fee. 

It is intended that soil conservation districts in carrying out their soil conservation program shall not enter into the wholesale or retail trade, or in any manner attempt
to compete with the commercial nurserymen by making planting materials available or participating in "landscape-type" plantings. Districts shall obtain all nursery stock from,
or through licensed North Dakota nurseries or dealers. No stock shall be sold or distributed out-of-state.  

ND Auto Accident Reparations Act (No-Fault Insurance)  
 Soil conservation districts are legal subdivisions of the State of North Dakota and as such, are not required to certify on district-owned vehicles under this Act.

Motor Vehicle Act   
Soil conservation districts are exempt from provisions of the Motor Vehicle Act passed by Congress in 1981 pertaining to transporting hazardous cargo. 

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 Education and Information Program and Activities   

The success of the soil and water conservation program within a district depends primarily on the education and information program carried out by the district. The education
program should be planned with the Extension Agent and the District Conservationist.

Keeping the public informed about local conservation problems, opportunities and operations has proven to be the key to the success or failure of conservation district programs. 
An aggressive information program will do the following: 
1. It will get the attention of the general public and create a positive awareness. 
2. It will inform the public about conservation problems, opportunities, programs and    accomplishments.
3. It will motivate individuals and groups to take action and/or give support. 
4. It will identify the conservation district as the source of the information and offer additional assistance when appropriate.

Recognize the conservation problems within the district and plan a program aimed at correcting these problems.  A good educational and
publicity program will include the following items: 
1. Begin with the statement of some of the problems about which you think the district can do something.  Examples are water erosion, wind erosion,
    overgrazing on range land, and water quality. 
2. State what you want the people to do about the problems you have listed. Examples are more conservation tillage, contour or strip cropping, more
    grassed waterways, and appropriate early spring grazing. 
3. Decide which group of people you wish to reach.  (Farmers and ranchers, businessmen, school children, general public).  
4. State the method of communications you expect to use to inform the people.             
5. Appoint one supervisor to take the leadership in each activity planned. They can secure outside help for these activities such as the Extension Agent,
    Vocational Agriculture Instructor, District Conservationist and others.             

An effective informational program will utilize as many different forms and methods of communications as possible.  The following have proven successful:  
1.  Local Newspapers - An excellent method of disseminating conservation news. It is usually printed free of charge and provides a quick way to
      get the information out while it is still "news".  Most newspapers are eager to learn about local people trying something new on their farms for a feature story.   
2.  District Newsletters - This method is excellent for publicizing district programs and recognizing cooperators for doing outstanding conservation work. 
      The newsletter approach gives the district total control of its contents. Many districts get local sponsors to help defray printing and mailing expenses.        
3.  Brochures - This can be one of the most cost efficient methods of promoting the district programs.  Brochures are also effective in spotlighting one
     program that the district would like to introduce to the public. By restricting the brochure to one topic, complete details can be included.    
4.  Displays - These are always attention-getters at fairs, in banks, stores, shopping malls and in school libraries. They are usually a very cost effective method
      of promoting conservation information or programs.
5  .Tours - A very effective way of showing both problem areas as well as accomplishments of the districts.  Some districts sponsor bus tours to other counties
      to stimulate interest and promote good will.
6.  Radio, Television, Video - Very effective methods of reaching the public with conservation information.
7.  Demonstrations - Offer a unique way of “show and tell”.  Districts have demonstrated no-till crop production, for example, on land adjacent to a
     highway, using all weather signs to tell details. This method has been very effective in many districts depending upon traffic flow and adequate parking space
     for interested visitors. Demonstrations on high residue seeding and tillage, spray equipment and calibration, and abandoned well sealing have been very effective.     
8.  Educational meetings - Meetings on residue and moisture management and crop production practices in cooperation with the Extension Service,
     NRCS, FSA and private industry has proven to be very beneficial. Other subject matter areas can also benefit from educational meetings.              
9.  Club or Guild - Formation of tillage or tree clubs or guilds has been effective.             
10. Others - Include magazines, movies, slides and contests.  Remember ... Make information available to all news media. Our program needs the support
       of all the people. Try to keep them all well informed.  Effective informational programs are always planned well in advance. 

To facilitate the educational program, the district should consider the purchase of a camera and other equipment not available in the district. Local pictures of people
and practices are essential in an educational program. Pictures can be used in the local newspapers and in the district newsletter.

School And Youth Educational Activities:  
1. Teacher-In-Service Training Day  - Most school systems have an in-service training day(s) at the beginning of the school year. On these occasions district
representatives may be given an opportunity to briefly tell about your conservation district and, more specifically, what assistance you are able to provide to the
teachers and students. 

          Support Projects WET, WILD, PLT and TREES, sponsored by the North Dakota Water Commission, North Dakota Game and Fish Department,
North Dakota Forest Service, and Foster County SCD, respectively.

2. Teacher Appreciation And Kick-Off Dinners -  Districts may hold a special dinner program for the purpose of expressing the conservation district's
     appreciation for their past support. Usually the principal and science teachers from each school are invited. The district takes this opportunity to explain what
     contests and other activities they will be promoting, as well as showing samples of various printed materials that can be ordered from the district.
     A very important part of this program is to invite the teachers and principals to make comments and suggestions about how the district can improve their
     conservation education programs. Their input can be valuable.

3. Conservation Speech Contest  -The contest theme could rotate between soil, water, forestry, wildlife and other subjects. Conservation districts could
     provide prizes for the winners, which could include trophies, ribbons, and certificates. 

4. Conservation Films & Slides -Provide interested teachers with a current list of films, video, slide or slide/tape sets that are available.

5. Outdoor Classroom / Outdoor Trails -  Provide technical assistance in planning facilities that would enhance the teaching of natural resource units.

6. Conservation Speakers - Assist teachers in locating people capable and willing to speak on conservation subjects in classrooms or other school gatherings.

7. Conservation Booklets - Provide students with conservation comic books. The subject would be coordinated with the planned teaching unit.

8. Conservation Reference Books -  Provide school libraries with conservation reference books that would compliment the units being taught.  

9. Conservation Corners - Set up “Conservation Corners” in school and public libraries where a display of conservation literature can be displayed for students' use. 
     Provide the school with new materials for the display or purchase subscriptions.

10. Arbor Day - Encourage school celebrations to be held each spring.  

11. Conservation Farm Tours -  Assist schools with making the necessary contacts and arrangements for class visits to local farms practicing conservation
      farming methods.

12. Conservation Camps  - Sponsor conservation camps and campers (students and teachers).

13. Soil Judging Contest - Sponsor and assist in 4-H and FFA Soil Judging Contests.

14. Soil Stewardship Week - Provide Soil Stewardship week materials.

15.Conservation Games -Promote the use of Proper Balance Game developed by the Central Stark County and Western Soil Conservation Districts.

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