On April 28, 2008 the South Dakota Attorney General issued an opinion determining that it is appropriate for a state agency to sell land to a city or local economic development organization so that the land may be leased to a private company for economic development. In interpreting two statutory provisions (S.D. C.L. 5-9-34 and 5-9-35) which provide, in part, that such land be used for a “public purpose,” the Attorney General relied on the U.S. Supreme Court’s interpretation of “public use” and “public purpose” in Kelo v. City of New London, 545 U.S. 469 (2005) as well as on interpretations by the South Dakota Supreme Court to reason that there are distinctions between the phrases “public use” and “public purpose.”  Citing to a string of cases where the South Dakota Supreme Court has explicitly found that economic development is a public purpose, the Attorney General opined that since the applicable statute uses the phrase “public purpose,” the legislature’s use of this judicially defined term suggests that the broader interpretation applies to the statute and there therefore, economic development is included as one of its valid purposes.  The Attorney General further reasoned that if the Legislature wanted to, they could have used more limiting language by restricting the power of the Commission to circumstances where there was a valid “public use.”   Lastly, the Attorney General commented that since under these statutes, the Legislature allowed organizations other than strictly public or governmental bodies to purchase public lands, had the Legislature sought to restrict the statute to “public use,”  it probably would have restricted the purchasers to public or governmental organizations.

 

Op. S.D. Att’y. Gen. 08-02 (4/28/2008).

 

The opinion can be accessed at: http://www.state.sd.us/attorney/applications/documents/oneDocument.asp?DocumentID=1556