STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 18, 1972

Howard Geers, Executive Director
State Conservation Commission
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-08

Permit for quarrying.

Dear Mr. Geers:

You have requested an official opinion in answer to the several questions propounded.

Certain granite quarries in South Dakota are operated as "open pit" mines. There, forseeable operations are such that in such quarrying no new areas of land will be disturbed, but rather such operations will continue to go deeper in the present pits.

During the Session of 1971, the Legislature enacted the Surface Mining and Land Reclamation Act. (Ch 251, SL 1971, codified as SDCL 45-6A.) These granite quarries above referred to were in operation long before the effective date of SDCL 45-6A.

With this factual situation, you have propounded these questions:

1. Do the operators of these quarries have to apply for a permit to engage in surface mining, and pay the initial fee of $50 if such quarry was in operation before the effective date of SDCL 45-6A?

2. Are these quarry operators subject to the annual fee of $25.00?

3. Do these quarry operators have to file a plan for Reclamation?

4. Do these quarry operators have to provide a bond for Reclamation when the open pit is in the same area being operated at the effective date of SDCL 45-6A?

5. Do such quarry operators have to comply with the specific rules and regulations adopted by the State Conservation Commission, when such quarries were in operation on the effective date of SDCL 45-6A?

There can be no question that if the answer to Question 1 is answered in the negative, that none of the provisions of SDCL 45-6A would apply to such quarries, and all questions would have to be answered NO.

However, I have scrutinized not only SDCL 45-6A, but also its origin, Chapter 251, Session Laws of 1971, and it is my opinion that as such Act contains no "grandfather clause," it applies to any person, firm or corporation subject to its provisions, notwithstanding that such organization was engaged in business on the effective date of the Act.

I have reached this conclusion, for it is settled that even if a person, firm or corporation is licensed in a business, trade or occupation, if such is subject to legislative control and regulation under the police powers, such business, trade or occupation can claim no vested rights to continue in business without complying with any additional regulations that seem proper to the Legislature. See State v. Hovorka (1907) 100 Minn. 249, 110 N.W. 870; George Benz Sons v. Erickson (1948) 227 Minn. 1, 34 N.W. 2d 725, and Louisville v. Coulter, 177 Ky. 242, 197 S.W. 819.

The' business of open pit or strip mining was not subject to regulation under the police power, prior to the 1971 enactment. However, as the operators in such occupation have no vested rights, in the absence of a "grandfather clause" granting them certain exemptions from such regulations, they must comply with such regulations to continue in business.

Question 1 must be answered YES.

The answer to the remaining questions propounded must depend upon the intent of the Legislature as expressed in the 1971 enactment.

Question 2 must be answered YES. If such quarry operators desire to remain in business, they must annually renew the permit to engage in strip mining and pay the annual renewal fee of $25.00.

Question 3 is answered by SDCL 45-6A-7 and 45-6A-8. The report required by SDCL 45-6A-7, which embodies the reclamation plan you have referred to, is a condition precedent to receiving the original permit to engage in strip mining, and a renewal of such permit.

Question 3 is answered YES.

Question 4 is answered by SDCL 45-6A-8. A bond is required for a permit to engage in pit mining. Question 4 must be answered YES.

Question 5. As long as the rules and regulations are authorized by the statute, SDCL 45-6A, they do not permit the State Conservation Commission to arrogate upon itself the role of the Legislature, so all permit holders, whether engaged in strip mining prior to the effective date of the Act, or engaging in such business after the effective date of such Act, must comply with the lawful rules and regulations of such Commission.

Question 5 is answered YES.

Respectfully submitted,

Gordon Mydland
Attorney General