September 19, 1978
Mr. Robert N. Duxbury
Secretary of Agriculture
Anderson Building
Pierre, South Dakota 57501
Official Opinion No. 78-40
Mining inspections
Dear Mr. Duxbury:
You have requested an official opinion from this office based on the following question:
QUESTION:
1. Can the Conservation Commission delegate its statutory authority to perform inspections, including initial-prior to mining, annual-concurrent to mining, and final-post mining, to the United States Forest Service and its personnel?
2. Would any delegation of authority have to be given to a specific person, e.g. John Doe, or could the authority be delegated to a titular individual, e.g., district ranger or forest supervisor?
The Division is required to conduct an inspection before mining occurs:
45-6A-6.2. The applicant for an exploration permit shall submit a plan of reclamation, consistent with the requirements for a surface mining reclamation plan, which shall be approved by the division before an exploration permit is issued. Prior to issuance of an exploration permit, the operator shall issue a bond payable to the state of South Dakota in an amount at least adequate to cover the cost of reclamation. The cost shall be determined in the same manner as for surface mining reclamation bonds.
Other inspections are anticipated by both SDCL 45-6A-7:
Any person desiring to engage in surface mining shall make written application to the commission for a permit. The application shall be upon forms furnished by the division and shall set forth:
. . .
(8) The written consent, duly acknowledged, of the applicant and such other persons, if any, necessary to grant such access to the commission or its agents to the area under application from the date of the application and thereafter for such time as is necessary to assure compliance with all provisions of this chapter or any rule, order or decision promulgated hereunder.
and SDCL 45-6A-23.1:
It shall be deemed a violation of a surface mining or exploration permit's conditions to refuse entry or access to any authorized representative of the division who requests entry for the purpose of inspection under this chapter, and who presents appropriate credentials; nor shall any person obstruct, hamper, or interfere with any such investigation. If requested, the operator of the mining site shall receive a report setting forth the observations made by the person making the inspection which relate to compliance with the statute.
Authority is given for the employment of agents within the Surface Mining Land Reclamation Act at SDCL 45-6A-6:
For purposes of administration of this chapter, the division [of Conservation] may employ such agents and employees, permanent and temporary, as it may require and shall determine their qualifications, duties and compensation. . . .
A more general authority to hire agents/employees is also given to the Division in SDCL 38-7-12, which states:
The division of conservation may employ such agents and employees, permanent and temporary, as it may require and shall determine their qualifications, duties, and compensation. . . .
SDCL 1-24-2 allows the powers of any public agency to be jointly exercised with the United States:
Any power or powers, privileges or authority exercised or capable of exercise by a public agency of this state may be exercised and enjoyed jointly with any other public agency of this State having such power or powers, privilege or authority, and jointly with any public agency of any other state or of the United States to the extent that the laws of such other state or of the United States [sic] permit such joint exercise or enjoyment. Any agency of South Dakota state government when acting jointly with any public agency may exercise and enjoy all of the powers, privileges, and authority conferred by § § 1-24-2 to 1-24-9, inclusive, upon a public agency.
SDCL 1-24-8 authorizes joint agreements in contracts for service by public agencies:
Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which any public agency entering into the contract is authorized by law to perform; provided, however, that such contract shall be authorized by the governing body of each party to the contract. Such contract shall set forth fully the purposes, powers, rights, objectives and responsibilities of the contracting parties.
IN RE QUESTION NO. 1:
In response to your first question, the Conservation Commission may not delegate its statutory authority to the United States Forest Service or any other entity. This does not mean, however, that the Conservation Commission may not cooperate with the United States Forest Service in the conduct of these inspections. The above authority indicates that the Division of Conservation, which is responsible for the administration of the Surface Mining Land Reclamation Act (Chapter 45-6A), together with the powers granted by the Joint Powers Act (Chapter 1-24), may arrange a system whereby through cooperation with the United States Forest Service, the required mining inspections are physically done by the United States Forest Service inspectors. These inspectors would, of course, be required to conduct their inspections according to the State's standards and requirements. There is one caveat to this matter, however, involving coal mines. The recently enacted Surface Mining Control Reclamation Act of 1977 applies to all coal mining affecting commerce in any manner. It supersedes any conflicting or less stringent state statutes or regulations governing the reclamation of coal mines. As of this date, the federal requirements are more stringent than those of the State of South Dakota, and therefore, insofar as coal mining is concerned, the State's standards would be superseded by the new federal requirements.
IN RE QUESTION NO. 2:
In response to your second question, the delegation of authority issue, I would refer you to the above analysis. As stated above, the Conservation Commission is not in a position to delegate its authority. This does not mean, however, that a joint powers agreement cannot be arranged whereby the inspections are to be handled by federal district ranger or forest supervisor. This, however, would involve a joint powers agreement which should run between the Conservation Commission and the federal agency involved.
Respectfully submitted.
William J. Janklow
Attorney General
WJJ:DOC:mam
