January 26, 1981
Mr. Rodger Pearson
Secretary
Department of Agriculture
Anderson Building
Pierre, South Dakota 57501
Official Opinion No. 81-5
Mining Exploration Permits--Consent
Dear Mr. Pearson:
You have requested an official opinion from this office regarding the 1980 amendments to SDCL 45-6A, the Mining Land Reclamation Act. You have asked the following question:
QUESTION:
Is the instrument of consent required for exploration permits as well as for surface mining operations?
This question requires construction of SDCL 45-6A-17.3, passed by the Legislature in 1980, which states as follows:
In addition to the requirements of § 45-6A-17 the operator shall submit to the commission prior to the commencement of any surface mining operation an instrument of consent from the surface landowner, if different from the owner of the mining interest, to the mining and reclamation plan.
It is a basic principle of statutory construction that an enactment of the Legislature is to be considered as a whole. In re Heuermann, 240 NW.2d 603 (S.D. 1976); Western Surety Company v. Mydland, 85 S.D. 172, 179 N.W.2d 3 (1970). Effect must, when possible, be given to all provisions within the statute. Hot Springs Independent School District No. 10 v. Fall River Landowner's Association, 262 N.W.2d 33 (S.D. 1978); State v. Heisinger, 252 N.W.2d 899 (S.D. 1977).
In order to answer your question, it is necessary to look at the entirety of SDCL chapter 45-6A. This chapter was originally enacted to require permits, bonds, and reclamation plans for surface mining activities. In 1975, the chapter was amended to require the same for mineral exploration activities. SDCL 45-6A-6.1. At that time, the Legislature decreed that the submission and processing of an application for an exploration permit be accomplished '. . . in the same manner prescribed for a surface mining permit.' SDCL 45- 6A-6.3. In addition, the reclamation plan submitted with the application for an exploration permit is to be consistent with the requirements of SDCL 45- 6A-17.
SDCL 45-6A-17, as amended in 1980, lists the requirements of the reclamation plan, and states as follows:
Prior to the commencement of any surface mining the operator shall submit to the commission a mining and reclamation plan, which must be approved in writing, or approved as amended, which plan, in the discretion of the commission may include, inter alia, a contour basis for the mining operations, the depth to which and the direction in which the operations are proposed to be conducted, the proposed disposition of boulders and tailings, the method of blasting and control thereof, drill logs of each exploratory hole; cross-sections that depict the subsurface geology, baseline water quality of all aquifers potentially affected, the direction and gradient of the ground water flow; maps and cross-sections showing direction, depth, and method of mining, and location of proposed reservoirs, tailings, ponds, dams, dikes, and diversion canals, and provisions for the stripping, storage, and, if required, the replacement of the overburden and topsoil. The operator shall have the right of appeal as provided by chapter 1-26 from any decision, order, or action of the commission in respect of such plan. Failure of the commission to respond in writing within thirty calendar days to the plan as submitted shall constitute its approval.
SDCL 45-6A-6.2 states in part:
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. (Emphasis added.)
The language emphasized--'consistent with the requirements for a surface mining reclamation plan'--refers to SDCL 45-6A-17, the only statute stating the requirements for a surface mining reclamation plan.
This interpretation of these statutes has been followed by the Division for several years, and the Legislature has not seen fit to amend the statutes. Thus this interpretation has been recognized and acknowledged by the Legislature. State ex rel. Linde v. Packard, 35 N.D. 298, 160 N.W. 150 (1916); United States v. Consumer Life Insurance Company, 430 U.S. 725, 52 L.Ed.2d 4, 97 S.Ct. 1440 (1977). An interpretation given to a statute by those who must administer it is deserving of great weight in statutory construction. Niagara Falls Urban Renewal Agency v. O'Hara, 394 N.Y.S.2d 951 (1977).
The question you raise here concerns SDCL 45-6A-17.3. This statute, passed by the 1980 Legislature, is in actuality an amendment to SDCL 45-6A- 17. This is indicated by the first words of the statute: 'In amendment to the requirements of SDCL 45-6A-17 . . ..' As an amendment to SDCL 45-6A-17, based on the reasoning described above, it is my opinion that both SDCL 45- 6A-17.3 and SDCL 45-6A-17 apply to exploration permit applications.
Some emphasis has been placed on the fact that the word 'operator' is used in SDCL 45-6A-17.3, and therefore that statute applies only to mining operations. 'Operator' is defined in SDCL 45-6A-2(5) as '. . . any person conducting or directing the mining operation.' However, this is not indicative of any legislative intent here, as the Legislature also used the word 'operator' to refer to a person conducting exploration operations. See SDCL 45-6A-6.1, 45-6A-6.2.
The answer to your question, therefore, is yes, the instrument of consent is required for exploration permits as well as for surface mining operations.
Respectfully submitted,
Mark V. Meierhenry
Attorney General
