July 29, 1990

Mr. Galen Buterbaugh, Regional Director
United States Department of the Interior
Fish and Wildlife Service
P.O. Box 25486
Denver Federal Center
Denver, CO 80225

OFFICIAL OPINION NO. 90-29

SB 84: Easements on state property to be reviewed by the Attorney General

Dear Mr. Buterbaugh:

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

FACTS:

In 1990, the South Dakota Legislature enacted Senate Bill 84, an Act that affects the recording of easements acquired by state and federal agencies. The United States Fish and Wildlife Service (Service) has acquired easements to protect wetlands in South Dakota since 1958. The easements are acquired from willing sellers and recorded in the appropriate county records as constructive notice to the public and future owners. The United States Fish and Wildlife Service acquires approximately 150 easements each year in South Dakota.

You have enclosed blank copies of the easement documents currently used by the Service in South Dakota, and have asked the following questions:

QUESTIONS:

1. Does the Attorney General concur that the easement documents are "in accord with any applicable provisions of State or Federal law, including any improper curtailment of any private person's right" as described in Senate Bill 84?

2. If the Attorney General concurs that the easement documents are in accord with State and Federal law, would he grant blanket approval to record all easements which use these form provisions, including those affecting more than 40 acres?

3. If the Attorney General does not concur in the legality of the enclosed easement documents, would he provide a legal analysis of the problems foreseen, including suggestions for appropriate remedy?

IN RE QUESTION NO. 1 and QUESTION NO. 3:

Senate Bill 84, entitled "An Act to Permit the Review of the Imposition of Certain Easements," has been codified in SDCL ch. 43-13. In its entirety, the Act provides:

Any county register of deeds receiving for recordation any easement in favor of any state or federal entity affecting more than forty acres of real property, except right-of-way easements for highway purposes, shall first transmit a copy of the document to the county commissioners of the county in which the property is located and the attorney general. If no action has been taken by the attorney general pursuant to section 43-13-15 within sixty days of the transmission, the register of deeds shall file the easement. SDCL 43-13-14.

At the request of any county commission, and at the county's expense, the attorney general shall review any transfer or imposition of deed restriction subject to 43-13-14. With the concurrence of the affected county, and at the county's expense, the attorney general may oppose any transfer or imposition of deed restriction subject to 43-13-14 which the attorney general deems is not in accord with any applicable provision of state or federal law including any improper curtailment of any private person's right. SDCL 43-13-15.

You have included with your request copies of easement documents currently used by the Service, and have requested an opinion whether the documents are in accord with provisions of state or federal law. The documents, however, are merely blank copies of the easement documents used by the Service, and do not refer to any easement transfer in particular.

Since the documents are incomplete, an opinion regarding their legality is not appropriate at this time. Such an opinion would be based on purely hypothetical facts, as any number of potential problems could be presented by completed easement documents, including, but not limited to: improper signatures of the parties; improper acknowledgement by a notary; or improper legal description of the land involved in the conveyance. Furthermore, an opinion rendered at this time would fail to take into consideration future changes in state or federal law. Therefore, because easement documents must be reviewed in their entirety, I reserve comment on the legality of the documents submitted by the Service.

IN RE QUESTION NO. 2:

Pursuant to SDCL 43-13-15, the Attorney General reviews easement documents only at the request of a county commission, and at the county's expense. If the Attorney General deems the documents are not in accord with state or federal law, the Attorney General may oppose any transfer or imposition of deed restriction, but only with the concurrence of the affected county. Id. In light of this statute, as well as the legal discussion presented by Question No. 1 and Question No. 3, it would not be appropriate to grant blanket pre-approval of the use of the documents submitted by the Service.

Respectfully submitted,

ROGER A. TELLINGHUISEN
ATTORNEY GENERAL

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