Can the Mississippi Department of Agriculture accept donated land from a county economic development authority for grading and inspection facilities?

Plain-English summary

The Mississippi Commissioner of Agriculture asked whether the Department of Agriculture and Commerce can accept a donation of land from a county economic development authority for a future facility used for the inspection, grading, classification, refrigeration, processing, and marketing of agricultural products. As an alternative, can the Department instead receive the land in exchange for the mutual benefits a development project would generate?

The AG said yes on both fronts. Section 69-7-115 authorizes the Department, "subject to the approval of the building commission" (now the Department of Finance and Administration), to "acquire by purchase, donation, lease or condemnation" a site for the listed agricultural purposes, in the name of the State of Mississippi. Donation is an enumerated method of acquisition, full stop.

If the parties prefer not to call it a donation but instead want a transfer for "mutual benefits," that fits within the same statute's authorization to acquire by purchase or lease, and what counts as adequate consideration is for the parties to negotiate, subject to judicial review. The AG declined to opine on whether the county economic development authority can lawfully donate, since AG opinions do not address one agency's duties to advise another agency.

What this means for you

For the Department of Agriculture and Commerce

The path is statutory and clear. Section 69-7-115 enumerates four acquisition methods (purchase, donation, lease, condemnation), and donation is one of them. The procedural step you cannot skip is the Department of Finance and Administration's approval. The site must be intended for one of the statutory uses: inspection, grading, standardization, classification, refrigeration, processing, or marketing of agricultural products (food and feed). The site must be accessible to highways and railroads and air terminals as Section 69-7-115 specifies. And expenditures associated with the project (presumably for site improvements and structures) have to be within the legislative appropriation.

For county economic development authorities considering donating land to the State

Whether your authority can donate is a separate question from whether the Department of Agriculture can receive. The AG declined to address the donor side because Mississippi AG opinions are issued to the public official asking the question and don't opine on what other agencies can or cannot do. The donor side will need its own internal analysis based on the authority's enabling legislation, ordinance, or other governing documents, and the consideration math (if any) for the donation.

For real estate counsel structuring the transaction

The "purchase or lease for mutual benefits" alternative is a real option but invites a familiar analytical issue: what is sufficient consideration? The AG cites prior opinions that the answer is for the contracting parties to determine, subject to judicial review. If the Department prefers to characterize the transfer as a purchase or lease rather than a donation (because of the donor's restrictions or for political-optics reasons), the deal documents should make the consideration explicit and defensible.

For state legislators

Section 69-7-115 was originally written to enable a state-funded facility for agricultural product handling, with cost limits and Department of Finance and Administration sign-off as guardrails. The donation route bypasses the cost element of the statute (since the donor is supplying the land), and the result is that the State can pick up assets that would otherwise need to be appropriated. That is generally desirable, and the statute reflects that policy choice.

Common questions

Can the Mississippi Department of Agriculture accept donated land?

Yes. Section 69-7-115 expressly authorizes acquisition by donation, in the name of the State of Mississippi, subject to Department of Finance and Administration approval.

What is the donation for?

Section 69-7-115 ties the acquisition to a "suitable site or sites, accessible to highways and railroads and air terminal facilities," where structures, facilities, and equipment for the inspection, grading, standardization, classification, refrigeration, processing, and marketing of agricultural products (food and feed) will be erected and installed.

What if the parties prefer to structure the transfer as a sale or lease for "mutual benefits" instead of a flat donation?

Section 69-7-115 also authorizes acquisition by purchase or lease. Whether the consideration is sufficient is a question for the parties, subject to judicial review. The AG cited MS AG Op., Mord (Dec. 5, 2022), for the proposition that consideration questions are outside the scope of an AG opinion.

Can the AG opine on whether the county economic development authority can donate?

No. Section 7-5-25 directs the AG to opine on questions raised by the public official making the request, not to advise other agencies on their duties. The Commissioner of Agriculture asked about the Department's authority to receive; the AG limited the opinion to that side of the transaction.

What is the Department of Finance and Administration's role?

DFA (formerly the building commission) must approve the acquisition. That is a statutory check on the Department of Agriculture's land-acquisition authority and applies regardless of which acquisition method is used.

Does this statute apply to other state agencies, or only Agriculture?

Section 69-7-115 is specific to the Department of Agriculture and Commerce. Other state agencies have their own enabling statutes governing land acquisition.

Background and statutory framework

Section 69-7-115 authorizes the Department of Agriculture and Commerce, subject to the building commission's (now DFA's) approval, to acquire suitable sites by "purchase, donation, lease or condemnation" in the name of the State of Mississippi, for sites used to construct facilities and install equipment for the inspection, grading, standardization, classification, refrigeration, processing, and marketing of food and feed products. Sites must be accessible to highways, railroads, and air terminals. Spending must be within legislative appropriations.

Section 7-5-25 limits AG opinions to questions of state law for the official requesting them and prevents the AG from opining on a different agency's duties.

Citations

• Miss. Code Ann. § 69-7-115
• Miss. Code Ann. § 7-5-25
• MS AG Op., Criswell (Aug. 26, 2016)
• MS AG Op., Mord (Dec. 5, 2022)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2024/10/A.Gipson-October-03-2024-Donation-of-Land.pdf

Original opinion text

October 3, 2024
The Honorable Andy Gipson
Commissioner, Department of Agriculture and Commerce
Post Office Box 220
Jackson, Mississippi 39205-0220
Re:

Donation of Land to the Department of Agriculture and Commerce

Dear Commissioner Gipson:
The Office of the Attorney General has received your request for an official opinion.
Questions Presented
1. May the State of Mississippi for the benefit and use of the Mississippi Department of
Agriculture and Commerce ("Department") receive by donation from a county economic
development authority a suitable site for the purposes of future development of facilities
for the inspection, grading, standardization, classification, refrigeration, processing and
marketing of such products?
2. As an alternative to donation, may the Department receive the property in consideration of
the mutual benefits of the proposed development to both parties?
Brief Response
1. Subject to the approval of the Department of Finance and Administration, the Department
may acquire property by donation in the name of the State of Mississippi in accordance
with Mississippi Code Annotated Section 69-7-115.
2. The Department also may acquire property under Section 69-7-115 by purchase, lease, or
condemnation. What suffices for consideration in the instance of a purchase or lease is a
determination to be made by the parties to the conveyance, subject to judicial review.
Applicable Law and Discussion
As an initial matter, Section 7-5-25 authorizes the Attorney General to issue official opinions to
various public officials and agencies "upon any question of law relating to their respective offices."
Official opinions are not issued to advise one public official or agency about another public
official's or agency's duties and responsibilities. MS AG Op., Criswell at 1 (Aug. 26, 2016).
Thus, we offer no opinion as to whether a county economic development authority may donate the
land in question. This opinion is limited to the authority of the Department to receive a donation
of property.
Section 69-7-115 provides:
The Department of Agriculture and Commerce is hereby authorized subject to the
approval of the building commission to acquire by purchase, donation, lease or
condemnation, and for and in the name of the State of Mississippi, a suitable site or
sites, accessible to highways and railroads and air terminal facilities, and to erect
and install thereon such structures, facilities, and equipment as may be necessary
for the inspection, grading, standardization, classification, refrigeration, processing
and marketing of such products (for both food and feed), within the amount
appropriated for such purposes by the Legislature and subject to the approval of the
building commission.
(emphasis added).
In response to your first question, according to the plain language of the statute, the Department is
authorized to receive property by donation "for the inspection, grading, standardization,
classification, refrigeration, processing and marketing of such products." Id. We refer you to the
Department of Finance and Administration (formerly the building commission) for any questions
regarding any specific conveyance.
In response to your second question, the Department also may acquire property under Section 69-7-115 by purchase, lease, or condemnation. What constitutes consideration in the instance of a
purchase or lease is a determination to be made by the parties to the conveyance and is outside the
scope of an official opinion. MS AG Op., Mord at 2 (Dec. 5, 2022) (internal citations omitted).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Beebe Garrard
Beebe Garrard
Special Assistant Attorney General