March 22, 1983

Honorable Carrol V. 'Red' Allen 
State Senator 
Post Office Box 430 
Lake Andes, South Dakota 57356

Official Opinion No. 83-13

Use of Missouri River boundary or 'take' land in establishing a school district

Dear Senator Allen:

You have requested an official opinion based on the following question:

QUESTION: 

May land taken by the federal government along the banks of the Missouri River be used as a connecting corridor when creating a school district in order to comply with the provisions of SDCL 13-6-5?

The statute provides: 

13-6-5.  All proposed school districts shall consist of adjoining territory and contain sufficient assessed valuation to enable the proposed district to rank above the fifteenth percentile of all existing districts in terms of assessed valuation per resident child of legal school age.  [Emphasis supplied.]

While it is true that land for which title is held by the federal government may be included in a minor boundary change request pursuant to SDCL 13-6-84.1(1), it does not necessarily follow that when the federal land being considered consists of long strips of land along waterways, irrigation projects, and highways, that this land may be used to satisfy the provisions of SDCL 13-6-5.

When reading the statute under discussion together with other provisions of SDCL chapter 13-6 the school district reorganization chapter--it becomes clear that when the Legislature used the words 'adjoining territory' in SDCL 13-6-5, what was intended was that school districts be essentially contiguous areas of geographic demarcation.  For example, SDCL 13-6-9.1 establishes in some  detail what is to occur if any part of the State is not included within the area of a school district or if any part of the State is included in more than one school district.  Clearly, the Legislature intends that for administrative purposes school districts be, inasmuch as possible, contiguous areas of land.

Finally, my conclusion is reinforced through extension of what could occur were the opposite interpretation taken.  For example, since the Missouri River runs through the Mobridge and Yankton School Districts they could be described as 'adjoining' if the federally-owned take land along the River's edge were used as a connecting corridor.  I am convinced that the Legislature could not have intended such a result.  Accordingly, it is my opinion that in the situation you describe federally-owned 'take land' bordering the Missouri River cannot be viewed as a connecting corridor for the purpose of satisfying the provisions of SDCL 13‑6‑5.

Respectfully submitted,

Mark V. Meierhenry
Attorney General