May 27, 1977
Mr. John Sieh, Chairman
Oahe Conservancy Subdistrict
Board of Directors
Post Office Box 1985
Aberdeen, South Dakota 57501
Official Opinion No. 77-46
Legal authority and duties of the Oahe Task Force
Dear Mr. Sieh:
You have requested an opinion from this office in regard to the following questions:
QUESTIONS:
1. Does the creation of the Task Force by the Legislature in Senate Bill 246, in any way strip the Oahe Conservancy Subdistrict of any powers or responsibilities granted them by State statute?
2. Can the $50,000.00 appropriated by the Legislature be used to hire a lobbyist? If so, whose responsibility is it to make that determination and authorize the spending of those funds for such purpose?
3. Does the Task Force have any authority to intervene in contractual arrangements between the Oahe Conservancy Subdistrict and the U.S. Government?
4. Through the Task Force or any other legislation which passed in the 1977 Legislative Session, did the legislature grant any state agency, the Governor or any other entity of the State of South Dakota the authority to contract with the Bureau of Reclamation for the construction of the Oahe Unit, and for the operation of the Oahe Unit? If so, by what means would revenues be generated or taxed to guarantee repayment and other costs as required by federal reclamation law?
5. It is our understanding that state law concerning the recall of public officials was changed in the last session to include Board members of conservancy subdistricts. Would you please explain the statutes concerning recall and the provisions by which a public official could legally be recalled?
IN RE QUESTION NO. 1:
Senate Bill 246 created the State Oahe Unit Task Force and provided for the membership of the Task Force, a brief description of duties, and an appropriation of money to fund the Task Force. Nowhere in the language of that legislation do I see terminology which “strips” the Oahe Conservancy Subdistrict Board of their powers or responsibilities.
The State Oahe Task Force is a body set up to continuously monitor and examine the Oahe Unit as outlined in the construction schedule of the Bureau of Reclamation, to report annually to the South Dakota Legislature on the progress of the Oahe project, and, where appropriate, to pursue or assist in the pursuit of modification and improvement in the project in certain specified areas. (Section 3 of Senate Bill 246.)
The language in section 3 of Senate Bill 246 recognizes the State Oahe Task Force has authority not only to monitor the progress of the Oahe project, and to make reports to the Legislature on that progress, but also to pursue or assist in the pursuit of modifications and improvements in the plans for the project. This, for example, means that the Task Force would be authorized to go to Washington, D.C. and pursue or assist in the pursuit of certain modifications and improvements in the project, and in doing so, to speak in behalf of the State of South Dakota in conformity with the public policy of South Dakota as expressed in section 1 of Senate Bill 246.
The Oahe Task Force is not in a position, in my opinion, to charge existing contracts on Oahe or to sign new contracts with the federal government, which would affect the Oahe project. The contracting authority of the Subdistrict Board has not bee changed by Senate Bill 246. If further implementation is needed for the modifications and improvements in the project which the Task Force “pursues,” the changes will need to be effected by the political process through such things as possibly changing existing law or persuasion of the Oahe Conservancy Subdistrict to take a particular course of action. The Task Force does, however, have the clear authority to pursue modifications and improvements in the specified areas of the Oahe project as noted in section 3 of Senate Bill 246.
In summary, the answer to your first question is generally no. The creation of the Oahe Task Force does not “strip” away the powers of the Oahe Conservancy Subdistrict. The creation of the Task Force, however, obviously does add an additional public body with independent authority to seek and pursue such things as modifications and improvements to the Oahe Unit. This authority to seek improvements and modifications arises from the language of section 3 of Senate Bill 246 and is there limited to only certain specific areas.
Thus, although Senate Bill 246 does not “strip” the Oahe Conservancy Subdistrict Board of their powers, its provisions not only state what the public policy of South Dakota is with respect to financing the Oahe project, but also establishes a blue ribbon Task Force to monitor the progress of the project, report to the Legislature on this progress, and to pursue or assist in the pursuit of modifications and improvements to the plans for the project, all in accordance and in conformity with the public policy of the State of South Dakota as expressed in Senate Bill 246. This means, in my opinion, that the Oahe Conservancy Subdistrict Board is not in a position to speak officially for South Dakota on the issue of continued funding for the Oahe project. The policy voice for the State is the Task Force, and it has its mandate to pursue funding pursuant to Senate Bill 246.
IN RE QUESTION NO. 2:
The answer to your second question concerning use of the $50,000.00 appropriated by the Legislature is no. There is no authority in my judgment, to use the funds appropriated by Senate Bill 246 for the purpose of hiring a lobbyist to promote or to oppose the Oahe project.
IN RE QUESTION NO. 3:
In response to your third question, it is apparent that the answer would depend on what meaning is attributed to the term “intervene.” If the term is construed to ask a question as to the Task Force's authority to sign contracts which would change or modify existing contracts on Oahe, then the answer to the question is no. If, however, the term “intervene” is viewed as asking the question as to whether or not the Task Force can “intervene” by doing such things as going to Washington, D.C. and attempting to pursue funding or get changes and improvements made in the project, the answer then is yes. The discussion above in regard to question number 1 should provide some additional clarification in regard to my views on this issue.
IN RE QUESTION NO. 4:
In regard to your fourth question, it appears to me that further discussion of this matter is not necessary in view of the above analysis relating to the previous questions.
IN RE QUESTION NO. 5:
With respect to your last question concerning recall of public officers, I am not aware of any such legislation that was passed by the 1977 Legislative Session. I do know there were proposals introduced in this area (House Bill 840), but they were never passed.
You may also have possibly been thinking of House Bill 806, which concerned removal of officers of local government for certain causes. The statute amended there was SCL 3-17-6, and in its amended form now provides for removal of any officer of any local unit of government for the enumerated causes. The previous language had restricted the scope of that statute to only certain specific local officials.
As far as general recall of public officers is concerned, there is no such general recall provision. There are specified sections on recall in the municipal law (SDCL 9-13-30), however, no similar statute of general applicability exists as to public officials generally.
Because of the scope of the Oahe project, I feel compelled to make a few comments in addition to those previously made.
The Oahe Master Contract has been recognized by our State Supreme Court as being a “valid obligation of the Oahe Conservancy Subdistrict,” In re Oahe Conservancy Subdistrict, 185 N.W.2d 682 (1971). This contract contract continues to be a valid obligation, requiring repayments through various taxation and user fee assessments, even if the project is not completed. Thus, the contractual obligations imposed by the Master Contract are not illusory and will not fade away merely because the project is not funded any further. Section 42 of the Master Contract provides:
The expenditures of any money or the performance of any work by the United States herein provided for, which may require appropriation of money by congress or the allotment of funds, shall be contingent on such appropriations or allotments being made. The failure of congress to appropriate funds, or the failure of any allotment of funds, shall not, however, relieve C-D District from any obligations under this contract, nor give C-District the right to terminate this contract as to any of its executory features. No liability shall accrue against the United States in case of such funds not being appropriated or allotted.
This continuing obligation raises questions in my mind as to the authority and propriety of any action calling for a withdrawal of federal funds from the project. Any governmental agency taking such action to unilaterally impair the obligations of the Oahe Master Contract could be action “ultra vires” and in excess of legal authority. The Master Contract can only be changed by mutual agreement of the parties, and not unilateral action.
The Master Contract was approved and ratified by the people and as such cannot be changed by unilateral action or conduct. This approval was manifested by an affirmative vote at an election by the people in the subdistrict.
Any public official who acts in an “ultra vires” manner could have reason to be concerned about possible personal liability which he might have as a result of such action. I do not believe that any present state or local agency has the unilateral authority to seek to undermine the funding of Oahe and thus place certain landowners in the position of having huge obligations to pay, but no water for irrigation.
Further, I feel it is proper that I caution all elected officials of their immense duty to represent and serve all spectrums of the electorate within their respective jurisdictions. On an issue as highly controversial and emotional as the Oahe project, it is easy for individuals to become polarized and cemented to specific positions; however, every elected official has an absolute duty to represent the interests of persons who voted against him as well as those of persons who voted for him. In carrying out these duties, it is necessary, at times, to put personal feelings aside and make decisions based upon the input and point of view of all of the electorate. This duty includes the elected officials of the current Oahe board as well as the elected state officers appointed to the Task Force. It is only through such action that the true “public policy” of the Oahe Subdistrict electorate and the whole state electorate can adequately be served.
Respectfully submitted,
William J. Janklow
Attorney General
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