STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

September 23, 1971

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

OFFICIAL OPINION NO. 71-40

Date upon which Surface Mining Act is enforceable

Dear Mr. Geers:

You have asked questions relating to the provisions contained in SDCL Ch. 45-6A "Surface Mining Land Reclamation," which was passed by the 1971 Legislature.

1. Do the requirements in 45-6A-14 and 15; 45-6A-19 and 45-6A-25 apply to all surface mining operations established before July 1, 1971 or to be mined after July 1, 1971?

2. Does the requirement for an application, permit and in initial fee of $50.00, to engage in surface mining-SDCL 45-6A-14 and 15 apply to all surface mining operations established prior to July 1, 1971?

3. Are surface mining operations existing before July 1,1971, required to me a plan for reclamation covering the area previously mined and areas to be mined after July 1, 1971?

4. Are surface mining operations existing before July 1, 1971, required to post bond SDCL 45-6A-19, for reclamation of the area to be mined; after July 1, 1971 or must the area previously mined be included?

The Surface Mining Land Reclamation Act was designed to provide for the reclamation of land after surface to "strip" mining has removed minerals lying below the surface. To this end, the operator of the mining operation is required to post security to insure there will be adequate financing to restore the land after the mining has been completed. The Act became effective on July 1, 1971.

The applicable provisions are as follows:

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 Commission and shall set forth ... (details omitted)."

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 commission before issuance of the surface mining permit. The permit shall be renewed annually in connection with the report required to be filed by §45-6A-17 and payment of the renewal fee of twenty -five dollars."

Your first question asks whether the security requirements, the transfer of an uncompleted operation from one operator to another, the amendment of a permit to cover additional contiguous land, and the investigation into a surface mining operation shall be required where a surface mining operation was started prior to July 1, 1971. The answer to your question is YES. There is no exemption in the statute for surface mining operations established prior to the enactment of the Act. Accordingly, any surface mining operations conducted after July 1, 1971 must comply with the requirements of the Act.

The answer to your Question No.2 is that the Act applies to all surface mining operations conducted after July 1, 1971 whether they were commenced prior to the passage of the Act or not.

The answer to your Question No.3 is that there must be a plan for reclamation covering the areas to be mined after July 1, 1971. There does not need to be a plan for reclamation filed covering the area mined prior to that date. As a general rule, statutes are construed to operate prospectively only, unless the legislative intent that they be given retrospective or retroactive operation clearly appears from the express language of the acts, or by necessary or unavoidable implication. 82CJS, Stat. § 414, SDCL 2-14-21. A reading of this chapter does not show that the Legislature in tended the Act to be retrospective or retroactive. Accordingly, this law would not apply to any surface mining which took place prior to July 1, 1971.

The answer to your Question No. 4 must therefore be, that surface mining operations existing prior to July 1, 1971, are required to post bond for reclamation only of that area which is mined after July 1, 1971, and not for the area previously mined.

Respectfully submitted,

Gordon Mydland
Attorney General