Who could sign a 1995 South Carolina agreement with the Navy over the H. L. Hunley?

Official title

Evaluating who may bind the State in negotiations with the Navy.

Requester

The Honorable Glenn F. McConnell, Senator, District No. 41

Plain-English summary

In this 1995 informal letter, the South Carolina Attorney General's office examined who could act for the state in negotiations with the Navy over the H. L. Hunley. It identified the Hunley Commission as the essential negotiating party because a legislative resolution assigned it work concerning the vessel's salvage and preservation. The Attorney General or a designee could sign while acting with and at the direction of the commission.

The letter treated participation by other state bodies differently. It said the Budget and Control Board would be an appropriate and prudent signatory given its property responsibilities, even though it might not be the vessel's custodian. It said the South Carolina Institute for Archaeology and Anthropology should sign because of its statutory custodial role. A footnote identified the Department of Archives and History as another appropriate signatory. The letter suggested that the General Assembly consider ratifying any agreement when it returned, out of caution and in light of the legislature's continuing interest.

Currency note

This opinion was issued in 1995. 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 Attorney General alone sign the Hunley agreement for South Carolina? A: The letter described the Attorney General as able to sign in conjunction with, and at the direction of, the Hunley Commission. It called the commission an essential party to any agreement.

Q: Did the Budget and Control Board have to own or hold the Hunley to sign? A: No such finding was made. The letter said the board might not be the actual custodian but that its statutory property responsibilities made its signature prudent.

Q: Why was the archaeology institute included?
A: The letter cited the South Carolina Underwater Antiquities Act's designation of the institute as custodian of submerged archaeological historic property and artifacts, and said it should be a signatory.

Q: Was legislative ratification stated as mandatory? A: No. The letter suggested ratification out of caution, consistent with the legislature's stated wish to remain involved in preserving the vessel.

Background and statutory framework

The inquiry assumed the vessel lay embedded in state-controlled submerged land. The letter cited the state's ownership rule for submerged archaeological historic property, the commission's legislative resolution, and provisions assigning custodial and property responsibilities among state agencies. These sources informed its recommendations about who would negotiate and sign in 1995.

Citations and references

• S.C. Code Ann. Section 54-7-630 and Section 54-7-640
• S.844 of 1995, Concurrent Resolution

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-20-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995oct20mcconnell.pdf

Original opinion text

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The State of South Carolina

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OFFICEOFTHEATrORNEYGENERAL

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CHARLES MOLONY CONDON
ATTORNEY GENERAL

October 20, 1995

The Honorable Glenn F. McConnell
Senator, District No. 41
311 Gressette Building
Columbia, South Carolina 29202

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Dear Senator McConnell:

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You have asked us to provide the Hunley Commission with an opinion evaluating who may bind the State in negotiations with the Navy. You have further indicated that

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Re: Informal Opinion

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[w]e believe that the Hunley Commission would be an
appropriate party to an agreement with the Navy, but would such an agreement need the signature of another entity and would the Budget and Control Board need to approve the document? Apparently, the vessel is located upon and embedded in lands of the State of South Carolina within the three-mile limit of the South Carolina coast. S.C. Code Ann. Section 54-7-630 provides in pertinent part that: (A)

[a]ll submerged archaeological historic property and
artifacts and all submerged paleontological property
located on or recovered from submerged lands over
which the State has sovereign control, are declared to be the property of the State.

Title to the seabed out to the three-mile limit is confined by the Submerged Lands Act,
. 43 U.S.C. Section 1301 et seq. ~ ~' Section 54-7-630(47) ["territorial waters" to

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The Honorable Glenn F. McConnell
Page 2
October 20, 1995
include navigable waters of the State three miles from the coastline and "such other waters" as defined in the Federal Abandoned Shipwreck Act of 1987.] Clearly, the Hunley Commission would be the primary signatory to any agreement. S.844 of 1995, a Concurrent Resolution, expresses the sense of this General Assembly that such Commission is acting on behalf of the General Assembly in matters involving the Hunley. Three members of the Commission are appointed by the Speaker of the House, three by the President Pro Tern of the Senate and three by the Governor. The Concurrent Resolution authorizes the Commission to
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... make a study of the law regarding the rights to the salvage of the "Hunley," a Confederate submarine, and any claim that a person or entity may assert with regard to ownership or control of the vessel. The committee is authorized to direct the Attorney General on behalf of South Carolina to take appropriate steps to protect and enforce the rights of the State of South Carolina to the salvage of the Hunley and to defend the State against claims regarding this vessel and to make recommendations regarding the appropriate method of preservation of this historic vessel. "·

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The General Assembly clearly intended for the Commission to "take ~ropriate steps" regarding the rights of the State concerning the Hunley and to "make recommendations" regarding preservation. Thus, based upon the General Assembly's intent, the Hunley Commission would take the lead and be the primary party in the negotiation of any agreement. In my judgment, therefore, the Hunley Commission would be an essential party to any agreement. Likewise, the Attorney General, or his designee, would be an appropriate party. ~ S.844 empowers the Commission to "direct the Attorney General" concerning the State's rights as to this vessel. As the State's chief legal officer, see S.C. Code Ann. Sec. 1-710 et seq., the Attorney General is acting in conjunction with and at the direction of the Commission, and thus could sign the agreement, pursuant to this authority as well as his common law powers on behalf of the people of South Carolina. ~ State v. Broad River Power Company, 157 S.C. l, 68, 153 S.E. 537 (1929); Cooley v. South Carolina Tax Comm., 204 S.C. 10, 28 S.E.2d 445 (1943); State ex rel. Wolfe v. Sanders, 118 S.C. 498, 110 S.E. 808 (1921). You have asked specifically whether the Budget and Control Board would be an appropriate party to any agreement with the Navy and I concur that the Board would be

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The Honorable Glenn F. McConnell
Page 3
October 20, 1995

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appropriate as a party thereto. As you suggest, the Board is the agency generally responsible for the management and control of real and personal property belonging to or in the custody of the State of South Carolina where no state agency or board otherwise has such responsibilities by law. ~, ~ Section 3-9-10 (Board through Director of General Services to control surplus personal property vis a vis the United States government); Section 1-11-70 (vacant lands of the State "subject to the directions of the State Budget and Control Board) [Hunley apparently embedded in State's lands]; Section l 0-1-140 (Director of General Services given general oversight authority with respect to personal property of State); R 19-410 et seq. (Division of General Services of Budget and Control Board designated the State Agency for Surplus Property whose mission is to dispose of surplus property). Moreover, the Board is given a direct role in the South Carolina Underwater Antiquities Act of 1991. Section 54-7-640(C) provides that
[t]he custodian of any other things of value not provided for in this section is the State Budget and Control Board which may promulgate regulations as necessary for this purpose.

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Accordingly, while the Board may not be the actual custodian here, considering this regarding underwater antiquities, as well as the other authority of the

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authorities referenced, it would certainly be prudent for the Board to be a signatory to any agreement. Likewise, the South Carolina Institute for Archaeology and Anthropology, is made custodian of "submerged archaeological historic property and 51 II artifacts" under this same Act, see, Section 54-7-640(A), and thus should be a signatory. 1

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Finally, out of an abundance of caution, the General Assembly may wish to consider ratifying any agreement, when it returns next session. This would be consistent with the Legislature's instructions in S.844 that the Hunley Commission is "to make recommendations regarding the appropriate method of preservation of this historic vessel." It is evident that this language indicates the Legislature's desire to remain closely involved with the salvage of the Hunley and thus it would be wise to obtain the Legislature's approval of any agreement consistent with such intent.

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As I understand it, the South Carolina Department of Archives and History is designated as the State Historic Preservation Officer (SHPO). This agency would be an appropriate signatory of any agreement.
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The Honorable Glenn F. McConnell
Page 4
October 20, 1995
This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With kind regards, I am Very truly yours,

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Robert D. Cook
Assistant Deputy Attorney General

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