August 22, 1977
Mr. Jack Merwin, Secretary
Department of Game, Fish and Parks
Anderson Building
Pierre, South Dakota 57501
Official Opinion No. 77-72
Determination of tax exempt status of State-owned lands
Dear Secretary Merwin:
You have requested an official opinion from this office based upon the following factual situation:
FACTS:
In October of 1973, the South Dakota Game, Fish and Parks Commission authorized the purchase at public auction of lands, described as H. E. S. #473, Sec. 27, Twp. 3, Rng. 5 and Tr. C of SE 1/4, Sec. 28, Twp. 3, Rng. 5, both located in Custer County. The lands were purchased pursuant to SDCL 41-2-24 as an addition to Custer State Park. The lands in question are contiguous to lands previously part of Custer State Park and are administered by the Custer State Park Division of Department of Game, Fish and Parks. The lands were erroneously entered on the Custer County tax rolls and taxes paid for the first half of 1974. Abatement and refund was requested on July 30, 1975, and again on January 5, 1977. The Custer County State's Attorney has issued an opinion to the Custer County Commissioners that the use of the land in question is the controlling factor in determining its status as taxable or tax exempt. The Custer County State's Attorney noted that the land provides habitat for wildlife and that limited hunting is allowed on the land.
Based on the above facts, you ask the following question:
QUESTION:
Is this property, purchased pursuant to SDCL 41-2-24, subject to taxation?
Section 5, article XI of the South Dakota Constitution provides:
The property of the United States and of the state, . . . both real and personal, shall be exempt from taxation, provided, however, that all state owned lands . . . known as public shooting areas, acquired under the provisions of § 25.0106 SDC 1939 and acts amendatory thereto, may be taxed by the local taxing districts for county, township and school purposes in such manner as the Legislature may provide.
This provision, which has been held to be self-executing and without aid of legislation, exempts all property within its terms from taxation by the State or the political subdivisions of the State. City of Yankton v. Madson, 70 S.D. 627, 20 N.W.2d 371. Local taxing authorities may tax only those State-owned lands which are designated in this provision and then only in such manner as the Legislature may provide.
The subsection of § 25.0106 SDC 1939, which dealt with public shooting areas, are now located at SDCL 41-2-19 and 41-2-21. The manner in which local taxing authorities are authorized to assess and levy taxes upon public shooting areas is prescribed in SDCL 41-4-8. Other State lands are exempt.
SDCL 41-2-21 grants the Game, Fish and Parks Commission the power to acquire and develop property especially desirable for public shooting areas. SDCL 41-2-24 grants the commission the power to acquire and manage land areas suitable for park purposes. The authority to determine whether land should be acquired and developed for public shooting areas or for park purposes lies exclusively with the Commission.
Once the property is placed in a category by the Commission, that condition is controlling. In this case, determinative of the taxing question, the fact that the land also provides habitat for wildlife does not affect the validity of this determination. It should be noted that SDCL 41-17-18 authorizes the Commission to permit limited hunting within the boundaries of Custer State Park. This statutory authorization did not alter the tax exempt status of the park, or does it alter the tax exempt status of property subsequently added to the park.
It is my opinion, therefore, that this property is exempt; the Department of Game, Fish and Parks should receive a refund on the taxes mistakenly paid, subsequent taxes should be abated, and no future taxes should be levied. Should the property be converted by the Commission to a public shooting area, it may then be taxed as provided by law.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:JD:bk
