September 2, 1980

Mr. Rodger Pearson 
Department of Agriculture 
Anderson Building 
Pierre, South Dakota 57501

Official Opinion No. 80-59

Effective Date for Regulation on Underground Mining

Dear Mr. Pearson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

The 1980 Legislature passed an amendment to SDCL 45-6A, requiring the State Conservation Commission to permit and regulate underground mining.

Based on the above facts, you have asked the following question:

QUESTION: 

Does the underground mining regulation cover the areas mined prior to July 1, 1980?

It is a general rule of statutory construction that a statute shall not be deemed retroactive unless the legislative intent to make it so clearly appears.  SDCL 2-14-21; Federal Farm Mortgate Corporation v. Noel, 66 S.D. 481, 285 N.W. 871 (1939); American Investment Company of Emmettsburgh v. Beadle County, 5 S.D. 410, 59 N.W. 212 (1894).  

The following definitions of a retrospective law were approved by the South Dakota Supreme Court in Clark Implement Company v. Wadden, 34 S.D. 550, 149 N.W. 424, 425 (1914):  

Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or  consideration already past, must be deemed restrospective.  Quoting Sturges v Carter, 114 U.S. 511, 5 Sup. Ct. 1014, 29 L.Ed. 240.  

A retrospective law is one which changes, or injuriously affects a present right by going behind it and giving efficacy to anterior circumstances to defeat it, which they have not when the right accrued.  Quoting Poole v. Fleeger, 11 Pet. (36 U.S.) 185, 9 L.Ed. 680.           

A retrospective law is one that relates back to, and gives a previous transaction some different legal effect from that which it had under the law when it transpired.  Quoting State v. Whittlesey, 17 Wash. 447, 50 Pac. 119.  

Ordinarily, an intention to give a statute retroactive operation will not be inferred.  If it is doubtful whether the statute or amendment was intended to operate retrospectively, the doubt should be resolved against such operation. It is especially true that the statute or amendment will be regarded as operating prospectively only, where it is in derogation of a common law right, or where the effect of giving it a retroactive operation would be to interfere with an existing contract, destroy a vested right, or create a new liability in connection with a past transaction, invalidate a defense which was good when the statute was passed, or, in general, render the statute or amendment unconstitutional.

The only exception to the above involves remedial or procedural statutes,  which do not create or take away vested rights, but only operate in the furtherance of a remedy or the confirmation of a right already existing.  These statutes do not come within the legal conception of a retrospective law or the general rule against retroactive operation of statutes.  Brookings County v. Sayre, 53 S.D. 350, 220 N.W. 918 (1928);  Plum v. Fond du Lac, 8 N.W. 283  (Wis. 1881);  Reed v. Madison, 53 N.W. 547 (Wis. 1892).  

The amendment to SDCL 45-6A herein involved appears at SDCL 45- 6A-2.4, which states as follows: 

All permitting, bonding and reclamation requirements of this chapter shall be equally applicable to underground mining and the surface effects thereof.

This statute became effective July 1, 1980.

There is no question that this statute proposes a new duty, relates back to and gives to a previous transaction a different legal effect and creates a new liability in connection with the past transaction.  In light of the general principle stated above, this statute can not be given retrospective effect without violating SDCL 2-24-21.

Therefore, underground mining activities which were conducted and completed prior to July 1, 1980, are not subject to the provisions of SDCL 45-6A-2.4. Any underground mining activities which either continue or are initiated after July 1, 1980, are subject to SDCL 45-6A-2.4.

Respectfully submitted,

Mark V. Meierhenry
Attorney General