Mr. Gregory A. Protsch
Miner County States Attorney 
115 North Main
Howard, South Dakota 57349-0508 

OFFICIAL OPINION NO. 87-20  

Alien Ownership of agricultural land

Dear Mr. Protsch: 

You have asked for an official opinion from this office interpreting South Dakota statutes relating to alien ownership of agricultural land in this State.  

You asked the following question:  

QUESTION:  

Does the requirement in SDCL 43-2A-3, to convey within three years the title to agricultural land acquired by nonresident aliens through devise or descent, apply to any interest exceeding one hundred sixty acres, or to any interest in any amount of agricultural land? 

States have long held the right to restrict land ownership by aliens, that right stemming from state control over the creation and definition of real property rights.  Lehndorff Geneva, Inc. v. Warren, 74 Wis.2d 369, 246 N.W.2d 815 (1976).  Since 1977, a number of states have enacted legislation limiting the right of nonresident aliens and businesses to acquire agricultural land.  States have restricted alien ownership of real property in three areas; the type of property (generally agricultural), limitations on the total amount of land that can be acquired, and limitations on the length of time that property can be held.  A cursory review of the South Dakota statute, SDCL Chapter 43-2A, indicates that South Dakota exercised its right to restrict alien ownership of real property in all three areas. 

Harl, Agricultural Law, Section 123.02(3), describes the acreage and time restrictions as follows:  

Acreage restrictions are a method of allowing limited foreign investment in real estate but are designed to ensure that no single nonresident alien investor could become dominate in land ownership in the area....Restrictions on the length of time the land can be held before requiring divestment do not apply to voluntary acquisition of the land by foreign investors.  Instead, length of time requirements are associated with involuntary acquisition such as by devise or descent, through the collection of debts, or the enforcement of liens and mortgages. 

The following South Dakota statutes apply to your question:  

SDCL 43-2-9 states: 

Any person, whether citizen or alien, may take, hold, and dispose of property, real or personal, within this state, except as provided in §43-2A-2. 

SDCL 29-1-17 states:  

Aliens may take in all cases, by succession, as well as citizens; and no person, capable of succeeding under the provisions of this chapter, is precluded from such succession by reason of the alienage of any relative.  

SDCL 43-2A-2: 

No alien, who is not a resident of this state, of some state or territory of the United States or of the District of Columbia; and no foreign government shall hereafter acquire agricultural lands, or any interest therein, exceeding one hundred sixty acres, except such as may be acquired by devise or inheritance, and such as may be held as security for indebtedness.  The provisions of this section do not apply to citizens, foreign governments or subjects of a  foreign country whose right to hold land are secured by treaty. 

SDCL 43-2A-3:  

All nonresident aliens who may acquire agricultural lands in this state by devise or descent shall have three years from the date of so acquiring such title in which to alienate such agricultural lands.  

The basic rules of statutory construction followed in this State have been summarized in Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180 (S.D. 1986).  Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as from other enactments relating to the same subject.  Simpson v. Tobin, 367 N.W.2d 757 (S.D. 1985).  Words used by the Legislature are presumed to convey their ordinary, popular meaning, unless the context or the Legislature's apparent intention justifies departure therefrom.  State v. Big Head, 363 N.W.2d 556 (S.D. 1985).  Where conflicting statutes appear, it is the responsibility of the courts to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable.  Karlen v. Janklow, 339 N.W.2d 322 (S.D. 1983); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D. 1982).  However, terms of a statute relating to a particular subject will prevail over general terms of another statute.  Clem v. City of Yankton, 83 S.D. 386, 160 N.W.2d 125(1968).  Finally, it must be assumed that the Legislature, in enacting a provision, had in mind previously enacted statutes relating to the same subject.  State v. Feiok, 364 N.W.2d 536 (S.D. 1985). 

IN RE YOUR QUESTION: 

Certainly, it is well established that the particular provisions contained in SDCL 43-2A, concerning the alien ownership of agricultural lands, apply to agricultural lands obtained by devise or descent, SDCL 29-1-17 not withstanding. 

You have therefore asked for an interpretation of the following clause contained in SDCL 43-2A-2: "... shall hereafter acquire agricultural lands, or any interest therein, exceeding one hundred sixty acres...."  This particular clause applies, through SDCL 43‑2A‑3, to aliens who acquire agricultural lands by devise or descent.  You have asked whether the above quoted clause applies to any interest in agricultural land exceeding one hundred sixty acres, or whether it applies to any interest in any amount of agricultural land. 

The plain reading of this sentence indicates that the clause "exceeding one hundred sixty acres" refers to the terms "agricultural lands;" the clause "or any interest therein," as a parenthetical, also refers to "agricultural lands."  That being the case, the requirement to convey title to agricultural lands acquired by nonresident aliens by devise or descent, applies to any amount of interest held by an alien which exceeds one hundred sixty acres of agricultural lands.  For example, a one-half interest in eighty acres of agricultural land would not require an alien to convey the land under SDCL Chapter 43-2A; a one-sixteenth interest in one hundred sixty one acres of agricultural land would require the nonresident alien to divest themselves of their interest in everything exceeding 160 acres within three years.  This interpretation of the statute not only takes into account the specific verbiage used by the Legislature in enacting the statute, but also considers the Legislature's obvious intent that alien ownership of large tracts of agricultural lands be controlled. 

Sincerely,

Roger A. Tellinghuisen
Attorney General