October 19, 1978
Mr. Albert L. Griffiths, Director
Department of Agriculture
Division of Conservation
Anderson Building
Pierre, South Dakota 57501
Official Opinion No. 78-45
Federal-state cooperation in regulation of surface mining
Dear Mr. Griffiths:
You have requested an opinion from this office in regard to the following factual situation:
FACTS:
The Conservation Commission, under SDCL 45-6A-6.2 and 45-6A-8, requires operators of exploration and mining ventures to post a bond prior to issuance of exploration or mining permits. These bonds may be released only after cessation of activities and proof of reclamation has been provided. The United States Forest Service has the opinion of requiring a bond under the same circumstances, but it is not mandatory. As part of a proposed agreement between the state and the Forest Service, a method of mutual bonding must be reached.
Based on the above facts, you ask the following questions:
QUESTIONS:
1. Can the State of South Dakota enter into an agreement with the United States Forest Service, in which it is agreed that the United States Forest Service will not require a bond in lieu of one held by the state, and the state agrees to not release the bond until such time as the United States Forest Service deems the area under bond has been satisfactorily reclaimed?
2. What are the limits of the state's ultimate liability under the conditions of a mutual bonding agreement between the state and the United States Forest Service?
3. In the event of forfeiture of bond, would the state and the Forest Service both be protected under the current procedures used by the Division of Conservation if an agreement of understanding is reached?
IN RE QUESTION NO. 1:
The Division of Conservation does have the authority to enter into an agreement with the United State Forest Service whereby the Forest Service does not require a bond from a surface miner in lieu of one held by the state covering the same mining activities. South Dakota requires a bond to be filed with the Conservation Division before a surface mining permit is issued:
SDCL 45-6A-8. The application shall be accompanied by an initial fee of fifty dollars. Prior to issuance of the permit the commission shall cause an inspection to be made of the proposed surface mining site, and based upon such inspection and the report required to be filed by § 45-6A-17, the commission shall set the level of the bond or security to meet the requirements of this chapter, which bond or security shall be filed or deposited with the division before issuance of the surface mining
permit. . . .
This bond is to ensure that the surface miner reclaims the land mined:
SDCL 45-6A-11. Any bond herein provided to be filed with the division shall be in such form as the commission prescribes, payable to the state, conditioned that the operator shall faithfully perform all duties and requirements of this chapter and the rules of the commission made in accordance with this chapter. Such bond shall be signed by the operator as principal and by surety certified under chapter 58-21.
SDCL 45-6A-12. The penalty of such bond shall be in an amount sufficient to cover the cost of reclamation as determined by the commission.
The Forest Service also regulates mining occurring in national forests. These regulations were promulgated under authority of the Organic Administration Act of 1897. The regulations apply to national forest lands subject to location and entry under the Mining Laws of 1872 which controls the mining and prospecting of metallic and related nonmetallic minerals subject to those laws. These regulations have no effect on minerals regulated under the mineral leasing laws. These regulations are included in 36 C.F.R. 252, and generally include the following:
Anyone mining in the national forest must notify the local forest service office of his intention to mine; a proposed plan of operations must be submitted; and, a bond must be filed to cover the expected cost of rehabilitating the area. The purpose of this bond is to assure compliance with the reclamation provisions of the regulations. If the miner fails to do the reclamation work, the bond will be used by the forest service to do the work. Thus, the purpose of both bonds-that required by South Dakota and that required by the forest service-is to ensure that the reclamation of a mined area is completed.
The Division of Conservation does have the authority to negotiate an agreement with the United States Forest Service. This authority is granted in SDCL 1-24:
SDCL 1-24-1. Terms used in this chapter, unless the context otherwise requires, mean: (1) “Public agency,” any county, municipality, township, school district, conservancy subdistrict or drainage district of the state of South Dakota; any agency of South Dakota state government or of the United States; . . ..
SDCL 1-24-2. 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 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.
Any such agreement negotiated is required to follow those provisions outlined in SDCL 1-24.
IN RE QUESTION NO. 2:
The state will probably be required to hold the bond until the United States Forest Service agrees to its release. If the state releases the bond before the United States Forest Service authorizes, the state would arguably be liable for the cost of reclaiming the land to the standards required by the United States Forest Service. Exactly what the “ultimate liability” of the state is should be specifically outlined in the agreement, i.e., the agreement should outline the liabilities and duties of each party should the agreement be violated. In the absence of such a provision, however, the state would possibly be liable for the cost of the reclamation, subject, however, to limitations imposed by Article III, § 27, of the South Dakota Constitution.
IN RE QUESTION NO. 3:
Presently when a bond is forfeited, the bond is used to pay for reclamation done by the Conservation Division.
SDCL 45-6A-20. Should the operator fail to carry out the provisions of 45-6A-17 or to carry out the plan for reclamation as approved, the division may cause them to be carried out and may use the funds deposited or may proceed against the bond to pay therefor.
If the bond governing mining on United States Forest Service land is forfeited, the state would, as is done presently, use the bond to pay for the reclamation done by the state. The reclamation required to be completed would be that required by the United States Forest Service. Ideally, this occurrence should also be covered in the agreement. In the absence of a provision dealing with the forfeiture of a bond, the procedures presently used by the Division of Conservation would be followed, with the exception that the reclamation done would have to satisfy the United States Forest Service's requirements.
Exactly what and how much of a voice the United States Forest Service will have concerning surface mining occurring on national forest land will ultimately depend upon their regulations and upon the agreement negotiated with them. The Forest Service is in a somewhat more elevated position than are other surface owners, because the Forest Service by regulation controls the mining in national forests in order to assure that reclamation of the mined area occurs. Because of this legal obligation on the United State Forest Service, the final judgment that reclamation has been accomplished and that the bond can be released will probably be reserved for the Forest Service.
It is impossible to categorically state that both the state and Forest Service would be “protected” as per your third question. Factual considerations as well as bond language all are important variables that cannot be foreseen. It appears to me, however, that both the state and the Forest Service could be covered; I cannot categorically state that they will be.
Respectfully submitted,
William J. Janklow
Attorney General
WJJ:DOC:in
