Could South Carolina’s Mitigation Trust Fund give money or land to a local nonprofit land trust?

Plain-English summary

The Department of Natural Resources asked whether funds or property purchased through South Carolina’s Mitigation Trust Fund could be given to a local nonprofit land trust. The Attorney General concluded in 2008 that the fund’s trustees lacked authority for that transfer.

The opinion first distinguished the fund’s board of trustees from DNR itself: the statute placed control of the fund with the trustees. It then found no general power to make unreimbursed grants of funds or property. The legislature had expressly authorized a specific disbursement to the South Carolina Center for Birds of Prey, which the AG read as further evidence that other grants needed express statutory authorization.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the Mitigation Trust Fund trustees grant land to a local land trust? A: The AG said no under the 2008 statute. It found no authority for a general transfer of fund property to a nonprofit land trust.

Q: Did DNR itself control those grant decisions?
A: The opinion said the statute gave administration of fund assets to the fund’s board of trustees, which consisted of the DNR board members, rather than to DNR as an agency.

Q: Did the statute permit any named nonprofit disbursement? A: Yes. It specifically authorized a disbursement to the South Carolina Center for Birds of Prey, but the AG did not extend that authorization to other organizations.

Background and statutory framework

The director asked about grants of cash or interests in land purchased with mitigation funds. The AG read the fund statute’s spending and administration provisions, recognized one express named exception, and concluded that broader nonprofit grants required legislative authority.

Citations and references

Statutes: The opinion analyzed S.C. Code Ann. § 50-1-310.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-13-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/frampton-j-e-os-8623-8-13-08-state-mitigation-trust.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY GENERAL

August 13, 2008

John E. Frampton, Director
South Carolina Department of Natural Resources
Post Office Box 167
Columbia, South Carolina 29202
Dear Mr. Frampton:
Based upon your recent letter to Attorney General Henry McMaster, we understand that the South Carolina Department of Natural Resources (the “DNR”) desires an opinion of this Office regarding whether “the DNR is authorized to grant funds or title to or an interest in real property purchased with funds, from the State Mitigation Trust Fund (the Fund) to a local non-profit land trust?” Law/Analysis As you indicated in your letter, section 50-1-310 of the South Carolina Code (2008) governs the Fund. This provision states as follows: (A) The Mitigation Trust Fund of South Carolina is created for the purposes of receiving gifts, grants, contributions, and other proceeds for mitigation projects in the State. The Board of Trustees for the Mitigation Trust Fund is the Chairman and the members of the South Carolina Department of Natural Resources Board with full authority over the administration of the funds deposited in the fund. The State Treasurer is the custodian of the fund and shall invest its assets in an interest-bearing account pursuant to South Carolina law. (B) The Mitigation Trust Fund may receive appropriations of state general funds, federal funds, donations, gifts, bond-issue receipts, securities, and other monetary instruments of value. Reimbursement for monies expended from this fund must be deposited in this fund. REMBERT C. DENNIS BUILDING ● POST OFFICE BOX 11549 ● COLUMBIA, SC 29211-1549 ● TELEPHONE 803-734-3970 ● FACSIMILE 803-253-6283

Mr. Frampton
Page 2
August 13, 2008

Funds received through sale, exchange, or otherwise, of products of the property including, but not limited to, timber and utility easement rights, accrue to the Mitigation Trust Fund. Funds recovered for losses or damages to natural resources must be deposited to the Mitigation Trust Fund to be used first for restoration in the areas affected and then as provided in subsection (C) of this section. (C) The income received and accruing from the fund must be spent only for the acquisition, restoration, enhancement, or management of property for mitigation for adverse impacts to natural resources. (D) The Trustees of the Mitigation Trust Fund are authorized to disburse funds to the South Carolina Center for Birds of Prey to fund construction of the Avian Conservation Center in Charleston County. (E) The proceeds from this fund may be carried forward from year to year and do not revert to the general fund of the State. S.C. Code Ann. § 50-1-310. Interestingly, in our research, we discovered section 50-3-180 of the South Carolina Code (2008) to be almost identical to the above provision. The only difference between the two is that section 50-3-180 does not contain the provision presented as subsection (D) in section 50-1-310. According to your letter, the Legislature added this provision in 2004, but apparently its was added in the form of a new statute, as the legislative history of section 50-1-310 indicates this statute was adopted in 2004. Regardless, it appears that section 50-1-310 controls because it is the latest expression of the Legislature’s intent. See Williams v. Town of Hilton Head Island, S.C., 311 S.C. 417, 429 S.E.2d 802 (1993) (stating “the Last Legislative Expression Rule requires that in instances where it is not possible to harmonize two sections of a statute, the later legislation supersedes the earlier enactment.”). Thus, in order to answer your question, we must determine whether section 501-310 allows the DNR to grant funds or title to interest in real property purchased from the Fund to other entities. Initially, we must clarify that section 50-1-310 does not give authority to the DNR. This provision states that the Board of Trustees for the Mitigation Trust Fund (the “Board”) has “full authority over the administration of the funds deposited in the fund.” The Board is comprised of the members of the DNR’s Board, but the authority given under these provisions is to the Board, not to the DNR or its Board. Nonetheless, we will address your question based on the authority of the Board to grant funds or property to local land trusts. To do this we look to the authority given to the

Mr. Frampton
Page 3
August 13, 2008

Board pursuant to section 50-1-310. In interpreting section 50-1-310, we keep in mind the rules of statutory interpretation. “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Sonoco Prod. Co. v. South Carolina Dep’t of Revenue, 662 S.E.2d 599, 602 (2008). “The court should give words their plain and ordinary meaning, without resort to subtle or forced construction to limit or expand the statute’s operation.” Id. Furthermore, because the Board is a creature of statute, it has “only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged.” S.C. Coastal Conservation League v. South Carolina Dep’t of Health and Envtl. Control, 363 S.C. 67, 610 S.E.2d 482 (2005). The only references in section 50-1-310 touching on the Board’s ability to expend money from the Fund are found in subsections (B) and (D). Subsection (B) indicates that some expenditures may be made from the Fund as it calls for the reimbursement of monies expended from the Fund. Id. § 50-1-310(B). However, we believe this provision assumes that expenditures from the Fund will be reimbursed. Because disbursements to a non-profit land trust would not be a reimbursed expenditure, we do not believe this provision allows for such disbursements. Furthermore, in subsection (D), the Legislature specifically gives the Board the authority to disburse funds to the South Carolina Center for Birds of Prey. Id. § 50-1-310(D). However, we find no provision generally giving the Board the authority to grant funds or property to any type of organization, public or private. In addition, “[t]he canon of construction ‘expressio unius est exclusio alterius’ or ‘inclusio unius est exclusio alterius’ holds that ‘to express or include one thing implies the exclusion of another, or of the alternative.’” Hodges v. Rainey, 341 S.C. 79, 86, 533 S.E.2d 578, 582 (2000) (quoting Black’s Law Dictionary 602 (7th ed. 1999)). As you point out, in 2004, the Legislature specifically gave the Board the authority to disburse funds to the South Carolina Center for Birds of Prey. This act of the Legislature indicates that the Legislature, through the enactment of the other provisions of section 50-3-180, which are now contained in section 50-1-310, did not give the Board the general authority to disburse funds without reimbursement. Moreover, by allowing disbursements to the South Carolina Center for Birds of Prey, this addition indicates that the Legislature intended to allow only this type of expenditure. Accordingly, we are of the belief that section 50-1-310 did not give the Board the authority to grant funds or property to a local non-profit land trust. Conclusion Based on our analysis above, we do not believe the Board has authority to make grants of funds or property from the Fund, other than as specifically provided in section 50-1-310(D), allowing the Board to disburse funds to the South Carolina Center for Birds of Prey. Such authority to make grants to other non-profit entities would require express statutory authorization, which the

Mr. Frampton
Page 4
August 13, 2008

Board does not possess. Accordingly, we do not believe the Board can disburse funds or property to a local non-profit land trust.

Very truly yours,
Henry McMaster
Attorney General

By:

REVIEWED AND APPROVED BY:

_______
Robert D. Cook
Assistant Deputy Attorney General

Cydney M. Milling
Assistant Attorney General