December 14, 1979

Mr. Warren R. Neufeld, Secretary 
Water and Natural Resources 
Joe Foss Building 
Pierre, South Dakota 57501

Official Opinion No. 79-44

Authority for maintenance and repair of state public dams

Dear Mr. Neufeld:

You have requested an official opinion from this office based on the following factual situation:

FACTS: 

On November 8, 1978, then Governor Harvey Wollman signed Executive Order 78-19, which was to transfer the power and duty to maintain and repair state public dams to the Department of Natural Resources Development from the Department of Wildlife, Parks and Forestry.  By the start of the next session of the South Dakota Legislature, William Janklow had become Governor. Governor Janklow did not submit Executive Order 78-19 to the Legislature for approval.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Does SDCL 41-2-19 and 41-2-21 establish full proprietary interest over dam maintenance, repair and   control in the Department of Game, Fish and Parks? 

2.  Was an executive order necessary to transfer such authority from Game, Fish and Parks to the Department of Water and Natural Resources? 

3.  If an executive order was necessary to transfer dam maintenance and repair authority, did Executive Order 78-19 accomplish that end?

SDCL 41-2-19 reads as follows: 

The department of game, fish and parks shall have the power, on behalf and in the name of the state, to acquire public or private property by gift, grant, devise, purchase, lease, or condemnation proceedings, and to manage, control, and improve the same for the purpose of exercising the powers granted in this title.

SDCL 41-2-21 provides: 

The department of game, fish and parks shall have the power to acquire by any means or methods as specified in §  41-2-19, any public or private real property especially desirable for public shooting areas or for the purposes of water conservation or recreation and to develop and improve the same for the purposes herein stated.

IN RE QUESTION NO. 1:

In my opinion the answer to your first question is no. SDCL 41-2-19 provides that the title to the property be taken in the name of the State of South Dakota, not in the name of the Department of Game, Fish and Parks.  This being so, I believe the vesting of proprietary interest is with the State of South Dakota rather than with the Department of Game, Fish and Parks.  The Department of Game, Fish and Parks does, however, under the above-cited statutes have the authority to manage, control and improve the lands purchased thereunder for purposes of exercising the powers of Title 41.

IN RE QUESTION NO. 2:

In my opinion the answer to your second question is that either legislation, or an executive order pursuant to article 4, section 8 of the constitution, which would need to be submitted to the Legislature, would be required to transfer the authority to manage, control and improve the properties purchased pursuant to SDCL 41-2-19, from the Department of Game, Fish and Parks to the Department of Water and Natural Resources.

IN RE QUESTION NO. 3:

As stated in your factual situation, Governor Janklow did not submit Executive Order 78-19 to the Legislature for approval.  This being so, and also in view of the fact that the action proposed by the executive order would have an effect on existing law, I believe it was necessary that the executive order be submitted to the Legislature under article 4, section 8 before the changes proposed by that order would take effect.  Consequently, I conclude that Executive Order 78-19 did not accomplish a transfer of dam maintenance and repair authority to the Department of Natural Resources Development.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:DOC:esp