September 6, 1979
Mr. Clint Roberts, Secretary
Department of Agriculture
Anderson Building
Pierre, South Dakota 57501
Official Opinion No. 79-33
May the South Dakota Department of Agriculture prescribe a minimum distance between apiaries of less than three miles?
Dear Secretary Roberts:
You have requested an official opinion from this office based upon the following factual situation:
FACTS:
The Department of Agriculture presently defines a beekeeper's “own property” in SDCL 38-18-3.1 as including any property leased by the beekeeper, as well as property to which the beekeeper holds fee title. This interpretation allows beekeepers to effectively circumvent the law requiring that three miles exist between apiaries.
Based upon the above factual situation, you have asked the following questions:
QUESTIONS:
1. Is the Department correct in its interpretation of “own property” as used in SDCL 38-18-3.1, such that land owned in fee title and leased by a beekeeper is entitled to an exemption from the three mile limitation on locations?
2. Is the attached “Bee Location Permission Form” sufficient to be accepted by the Department as evidence of a written lease?
3. Is the primary concern of the Secretary of the Department of Agriculture under SDCL 38-18 to keep bee locations three miles apart even when no noted disease has been detected in an area?
IN RE QUESTION NO. 1:
SDCL 38-18-3.1 reads as follows:
No apiary shall be located within three miles of any other apiary; provided, however, that any beekeeper may locate an apiary anywhere on his own property. Provided further that the secretary may issue permits to beekeepers to allow the placement of apiaries closer than three miles from each other.
The secretary shall promulgate rules under chapter 1-26, setting forth the standards which shall be followed for the issuance of these permits. The rules may provide for permanent or temporary permits and may also provide for an emergency revocation of all permits in an area to prevent the spread of bee diseases.
When promulgating such rules the secretary's primary consideration shall be to control bee diseases.
ARSD 12:41:03:04 states:
The secretary may issue permanent permits for all apiaries which are located three miles or more any other beekeeper's approved permanent locations. The secretary may issue permanent permits to beekeepers to allow placement of apiaries closer than three miles of each other upon consideration of factors such as density of bees, locations and landowners' needs as they relate to disease control.
Nowhere in the administrative rules of the Department of Agriculture do I see any rule which takes the position as stated in your first question. This being so, it appears that the Department could change its “interpretation” or could promulgate a new rule which would exempt only land owned in fee by a beekeeper.
In view of the present requirements of ARSD 12:41:03:04, the secretary may issue permits for apiaries to be closer than three miles without consideration of the question of “ownership” of the land by a beekeeper.
In any event, this matter appears to be largely within the regulatory authority of the Department, and as is true with all regulatory matters, there is the continued flexibility to amend and change these rules by complying with SDCL 1-26.
With respect to the specific question you raise on the proper interpretation of “owned property” in SDCL 38-18-3.1, it would be my view that that term does not include property “leased.” A lessee of property does, of course, have an interest in the leased premises, but within the context of SDCL 38-18- 3.1, it would appear that to interpret “owned property” to include leased property would be to essentially create an exception beyond the exception created by the statute. Further, such considerations as flexibility would not be hampered in view of the authority given to the Department to issue permits within three miles, subject to rules promulgated by the secretary under SDCL 1-26.
IN RE QUESTION NO. 2:
In view of the answer to Question No. 1, I do not believe any further response to Question No. 2 is necessary.
IN RE QUESTION NO. 3:
It is very difficult to respond to your third question in a legal sense since the question concerns legislative intent and policy more than anything else. SDCL 38-18-3.1 does specifically state that the secretary's prime consideration in promulgating rules to provide for minimum distances between apiaries shall be to control bee diseases. Implicit in this argument, in my opinion, is the position that the minimum distances rules and standards are intended to protect the bee industry from the spread of diseases through hives located in close proximity to each other. SDCL 38-18-3.1, however, does recognize that the secretary may authorize a closer placement of apiaries than the three-mile basic requirement. How these rules are specifically developed, I would believe to be a matter properly within the expertise of persons more familiar with the bee industry than I. It is my opinion, however, that the primary concern of the secretary under these statutes is to control and prevent the spread of bee diseases, not that a magical three-mile placement provision be imposed in all circumstances.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
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