April 23, 1981

Mr. Thomas E. Graslie 
Harding County State's Attorney 
Box 427 
Buffalo, South Dakota 57720

Official Opinion No. 81-15

The Effect of the 1981 Amendment to SDCL 40-3-14

Dear Mr. Graslie:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

South Dakota law presently provides that pursuant to SDCL 40‑3‑14, the South Dakota Livestock Sanitary Board is authorized to make all such rules, regulations, and orders for the execution of the powers conferred upon it and the performance of its duties so as to effectuate, enforce, and carry out promptly and efficiently the provisions of the statutes relating to its duties, powers, and jurisdiction.  The Board may likewise amend or repeal all such orders, rules and regulations.  The 1981 session of the South Dakota Legislature amended SDCL 40-3-14 to provide that the Board shall exercise its regulatory and quarantine powers in a manner that discriminates against the minimum geographical area reasonably necessary to control or eradicate disease.  Recently the State Veterinarian for the State of Montana informed the South Dakota Livestock Sanitary Board that the Montana Board of Livestock had rescinded its dip requirement for cattle scabies in the South Dakota counties of Harding, Butte, Lawrence and Meade.  This was based on the Montana State Veterinarian's recommendation that scabies has never been diagnosed in these counties and that the east to west dip order imposed by the Sanitary Board has been very effective in preventing the introduction of scabies into these counties.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Will the amendment to SDCL 40-3-14 require that the South Dakota Livestock Sanitary Board Order 80-1 establishing a West River scab control area be removed effective July 1, 1981, on the grounds that it discriminates against a larger geographical area than is reasonably necessary to control or eradicate disease? 

2.  If question #1 is answered in the affirmative, would this preclude the South Dakota Livestock Sanitary Board from imposing a dip order on all livestock entering the counties of Harding, Butte, Lawrence and Meade other than those entering from scabies free areas?

Each of your questions involves the effect of House Bill 1317 effective July 1, 1981.

SDCL 40-3-14, amended effective July 1, 1981, reads as follows: (the overstrike indicates material amended out and understrike indicates the material amended in). 

The livestock sanitary board is hereby authorized to may make all such rules, regulations, and orders for the execution of the powers conferred upon it and the performance of its duties, so as to effectuate, enforce, and carry out promptly and efficiently the provisions of the statutes relating to its  duties, powers, and jurisdiction.  The board may likewise amend or repeal all such orders, rules, and regulations.  However, the board shall exercise its regulatory and quarantine powers in a manner that discriminates against the minimum geographical area reasonably necessary to control or eradicate disease.

SDCL 40-3-9 reads as follows: 

The livestock sanitary board shall be and is hereby vested with the power and charged with the duties of protecting the health of livestock including poultry in South Dakota, of determining and employing the most efficient and practical means for prevention, suppression, control and eradication to dangerous, contagious, infectious, or otherwise transmissible diseases among the domestic animals of the state of South Dakota, and of inspection and regulation of livestock auction sales yards, and of rendering plants.

The pertinent portion of SDCL 40-3-14 as amended effective July 1, 1981, to be interpreted is the final sentence.

It is my opinion the final sentence of SDCL 40-3-14 requires the Livestock Sanitary Board to make two determinations:  (1) to determine the smallest geographical area to be impacted by any exercise of its powers and also (2) to use measures that are reasonable in the exercise of its powers.

IN RE QUESTIONS NO. 1:

The South Dakota Livestock Sanitary Board should consider its Order 80-1 in light of the two tests that I have described above. If the order is reasonable and within the scope of the Board's powers (i.e., to control disease by restricting its spread to other areas of the state), and if it affects or if it impacts the geographical area that is properly determined as being necessary to be impacted, the Order would not need to be rescinded.

IN RE QUESTION NO. 2:

Assuming the Livestock Sanitary Board rescinds its Order 80-1, the rescission would not preclude the Board from imposing a dip order on certain counties.

Respectfully submitted,

Mark V. Meierhenry
Attorney General