February 27, 1975
Representative Walter D. Miller
Assistant Majority Leader
House of Representatives
Capitol Building
Pierre, South Dakota 57501
OFFICIAL OPINION NO. 75-37
Grants to rural water supply systems and small water development projects
Dear Representative Miller:
You have requested an official opinion based on the following factual situation:
SDCL 46-17A-22.1 authorized the board of natural resources development to make grants to rural water supply systems and small water development projects.
46-17A-22.1 The board of natural resources development is hereby authorized to make grants to rural water supply systems organized pursuant to chapter 1O-36A or special purpose governmental entities organized under the laws of the state of South Dakota for small water development projects.
SDCL 46-17A-22.3 requires the board of natural resource development to establish rules and regulations for the selection of grant recipients.
46-17A-22.3 The board of natural resource development shall establish by rules and regulations pursuant to chapter 1-26 criteria for the selection of small water development projects to receive grants pursuant to §§ 46-17A-22.1.
In the past year the Board of Natural Resource Development has authorized $617,000 in grant funds. Inquiry and investigation discloses that no rules required by SDCL 46-17A-22.3 have been promulgated and filed pursuant to SDCL 1-26.
Your questions are:
1. Are the Board of Natural Resource Development authorization and disbursement procedures valid?
2. Are the authorizations and disbursements valid?
3. What relief is available for citizens of the state who were not informed of their eligibility for grants?
SDCL 46-17A-22.3 which provides that the Board of Natural Resources shall establish by rule the criteria for selection of small water development projects to receive grants, was passed in 1974. There being no emergency, the provisions became effective for July 1, 1974.
It is my opinion that boards and agencies should be given a reasonable time to pass rules and regulations implementing new responsibilities and duties placed on them, Brink v. Curless, 209 N.W. 2d 758 (1973). It is also my opinion however, that eight months is not a reasonable time.
The law clearly requires that criteria be set by rule to govern the selection process of the board in selecting projects to receive grants, this opinion does not in any way imply that the Department of Natural Resources has been unfair or unethical in their consideration of grant applications. It merely states the conclusion to be drawn from the facts: The department did not follow the prescribed statutory procedures in obligating funds available for small water supply grants. The answer to your first question must be NO. The law requires that there be rules and regulations which prescribe criteria for the selection of these small water project grants. There being no rules promulgated here, the statutory procedures required are present. Procedures specifically contrary to law can hardly be said to be valid.
The answer to your second question is also NO.
The crux of the analysis of your second question focuses on the issue of whether a disbursement or obligation of public funds is valid if they are not obligated as disbursed pursuant to the precise requirements of law. In the present case the precise requirement of having rules to define the criteria to be void in approving grants under SDCL 46-17A-22.1 was not followed. Funds have been obligated without rules as to criteria being passed.
In the case of Graves v. Johnson, 75 S.D. 261, 63 N.W. 2d, 341, 342 (1954), the South Dakota Supreme Court gave recognition to the principle that the actions of public officers are binding only when those actions are within the scope of their authority. In the present case, it was not within the scope of the authority of the Department of Natural Resources to ignore the requirement of SDCL 46-17A-22.3. That being obvious, the result follows that the actions of the Department of Natural Resources which were outside the scope of their authority are not binding.
The third question you ask is one which I feel involves political matters more than an interpretation of law. For this reason I must respectfully decline to issue an opinion on this question.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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