May 4, 1976
Mr. Ron Campbell
Hand County State's Attorney
Miller, South Dakota 57362
OFFICIAL OPINION NO. 76-47
County Commissioners are not a "public agency" within the scope of Public Law 87-383.
Dear Mr. Campbell:
You requested an opinion from this office based upon the following facts:
The "X" estate attempted to sell certain real estate. It received a bid in the amount of $27,520 for said real estate. This bid was rejected and the land was readvertised with the United States Department of Interior, Fish & Wildlife Service, the only bidder, submitting a bid in the amount of $57,600. An order confirming the sale was entered by the Circuit Court of that judicial district.
The attorney for the estate then proceeded to secure approval of said sale from the Board of County Commissioners of "Y" County. On December 4, 1975, certain residents of "Y" County appeared before the Commissioners and expressed their opposition to the Commissioners’ approval of the aforementioned purchase by the U.S. Fish & Wildlife Service. On December 19, 1975, a representative from the U.S. Fish & Wildlife Service and the attorney for the estate explained to the board their position on the sale of the real estate. At this time several residents of "Y" County again expressed their opposition to the Commissioners' approval of this sale. In addition, several signed petitions expressing the same opposition were presented.
On December 19, 1975, the Board of County Commissioners of "Y" County unanimously voted to not approve the sale of said real estate to the Department of Interior, U.S. Fish & Wildlife Service and justified their disapproval on the fact that said sale would not be in the best interest of "Y" County as there would be a reduction in taxes received from said land.
The attorney for the estate has now appealed the Board of Commissioners’ decision to the Circuit Court pursuant to SDCL 7-8-27 to 7-8-31.
Based on the above facts, you ask:
1. Does a County in this State have authority to approve or disapprove a sale of real estate to the Department of Interior, U.S. Fish & Wildlife Service under any authority emitting from the State of South Dakota?
2. Does a County in this State have authority to approve or disapprove a sale of real estate to the Department of Interior, U.S. Fish & Wildlife Serivce, by virtue of Public Law 87-383 (75 Stat. 813)?
3. If a County does have authority to approve or disapprove sale as set forth above, is their authority absolutely discretionary or would there be certain procedures they must follow prior to exercising this authority?
Public Law 87-383 provides:
Be it enacted by the Senate and House of Representatives of the United States of America and Congress assembled, that in order to promote the conservation of migratory waterfowl and to offset or prevent the serious loss of important wetlands and other waterfowl habitat essential to the preservation of such waterfowl, there is hereby authorized to be appropriated for the seven-year period beginning with fiscal year 1962, not exceeding $105,000,000.
Sec. 2. Funds appropriated each fiscal year pursuant to this Act shall be accounted for, added to, and used for purposes of the migratory bird conservation fund established pursuant to section 4 of the Migratory Bird Hunting Stamp Act of March 16, 1934, as amended (48 Stat. 451; 16 U.S.C. 718d).
Sec. 3. Funds appropriated pursuant to this Act shall be treated as an advance, without interest, to the migratory bird conservation fund. Such apportioned funds, beginning with fiscal year 1969, shall be repaid to the Treasury out of the migratory bird conservation fund, and such repayment shall be made in annual amounts comprising 75 per centum of the moneys accruing annually to such fund: Provided, That in the event the full amount authorized by section 1 of this Act is appropriated prior to the end of the aforesaid seven-year period, the repayment of such funds pursuant to this section shall begin with the next full fiscal year: Provided further: That no land shall be acquired with moneys from the migratory bird conservation fund unless the acquisition thereof has been approved by the Governor of the State or appropriate State agency.
A central question involved in the issues you raised is whether or not county commissioners of the several counties of South Dakota are "an appropriate state agency" within the purview of Public Law 87-383. If the county commissioners are such an appropriate state agency, then the consent of the commissioners or of the Governor would be necessary before lands could be acquired with monies from the bird conservation fund.
It is my opinion that county commissioners are not "an appropriate State agency" within the purview of Public Law 87-383. As I read Public Law 87-383 it is referring to an agency of state government as opposed to local political subdivisions of government and that the reference to "an appropriate State agency" is a reference to an agency other than the governor of the state who would have approval powers throughout the entire state, and not just on a local level.
It is also my opinion, however, that there is nothing to prevent the Governor of South Dakota from consulting with the county commissioners in regard to this sort of question, and that the Governor could make his approval contingent on the approval of the county commissioners. This, however, is a discretionary alternative which rests with the Governor, and cannot be forced upon the Governor if he does not desire to do so.
The answer to your first and second question, therefore, is NO. In my opinion, counties are not "appropriate State agencies" within the purview of Public Law 87-383 and there is no authority emanating from the State of South Dakota to the counties which would authorize them to exercise such approval power under Public Law 87-383.
In view of the answer to your first two questions, it is not necessary to more specifically consider question No.3.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:mhb
