05-04-82
CHAPTER 13
OPEN CUT LAND RECLAMATION
Section 1. Citation.
This Act may be known and cited as "The Open Cut Land
Reclamation Act."
Section 2. Declaration of Policy.
It is hereby declared to be the policy of this Tribe to
[provide, for the reclamation and conservation of land
subjected to surface disturbance by open cut mining and
thereby to preserve natural resources, to aid in the
protection of wildlife and aquatic resources, to establish
agricultural, recreational, home and industrial sites,] to
protect and perpetuate the taxable value of property, and
to protect and promote the health, safety, and general
welfare of the people of this Tribe.
Section 3. Definitions.
Whenever used or referred to in this Act, or in rules and
regulations promulgated hereunder, unless another meaning
clearly appears from the context:
(a) Overburden - means all of the earth and other materials
which lie above natural deposits of coal, clay, stone,
sand, gravel, or other minerals, and also means, such
earth and other materials disturbed from their natural
state in the process of open cut mining, or from
mining from exposed natural deposits.
(b) Open Cut Mining - means the mining of coal, clay,
stone, sand, gravel, or other minerals by removing the
overburden lying above natural deposits thereof and
mining directly from the natural deposits thereby
exposed.
(c) Operator - means any person, firm, or corporation
engaged in and controlling an open cut mining
operation.
(d) Pit - means a tract of land, from which overburden has
been or is being removed, for the purpose of open cut
mining.
(e) Affected Land - means the area of land from which
overburden shall have been removed, or upon which the
overburden or refuse has been deposited or both after
the effective date of this has been deposited or both
after the effective date of this act.
(f) Refuse - means all waste material directly connected
with open cut mining.
(g) Ridge - means a lengthened elevation of overburden
created in the open cut mining process.
(h) Peak - means a projecting point of overburden created
in the open cut mining process.
(i) Commissioner - means the Commissioner of Tribal lands
of the Sisseton-Wahpeton Sioux Tribe.
Section 4. Compliance Generally - Exceptions.
(a) From and after the effective date of this Act, no
mining operation or operations by which solid minerals
are presently being extracted or are intended to be
extracted from the earth by means of surface opening
shall be commenced, conducted, or carried on or
abandoned or closed save in accordance with and in
conformity to the requirements hereof. Provided
nevertheless; it is being recognized that measures
taken hereunder are performed in the public interest
and constitute an expense to the operator, and while
this Act shall apply to all mining operations being
conducted at the time of or commenced after the
effective date hereof, no operator shall be compelled
to perform at his own expense measures required
hereunder with respect to operations that were
completed or substantially completed prior to the date
hereof.
(b) Provided however, that all pits and quarries opened
after the effective date of this Act, which are under
the supervision and control of any government agency
whose regulations are equal to or greater than those
imposed by Section 6 of this Act, are not subject to
the further provisions of this Act.
Section 5. Permit - Bond Generally - Fee.
Any operator desiring to engage in a new open cut mining
shall make written application to the Commissioner for a
permit. Application for such permit shall be made upon a
form furnished by the Commissioner, which form shall contain
the following:
(a) The name of the operator and, if other than the owner,
the name and address of the owner.
(b) The mineral to be extracted and the type of operation
to be conducted.
(c) The volume of earth to be removed, as accurately as the
same may then be estimated, and the volume which has
been previously removed, if any.
(d) The location of the operation by legal subdivision,
section, township, range, and county.
(e) The date when such operation was commenced or, as to
new operations.
(f) The name and address of the person or persons to whom
any notice under the provisions of this Act shall be
sent; and
(g) A statement that the applicant has the right and power
by legal estate owned to mine by open cut mining the
lands so described and such application shall be
accompanied by:
1. A bond or security meeting the requirements of
Section 8 of this Act; and
2. A fee of fifty dollars ($50.00). Upon receipt of
such application, bond or security and fee due
from the operator, the commissioner shall issue a
permit to the applicant which shall entitle him
to engage thereafter in new open cut mining on the
land therein described.
An operator desiring to have his permit amended to cover
additional contiguous or nearby land may file an amended
application with the commissioner. Upon receipt of the
amended application, and such additional bond as may be
required under the provisions of this Act, the commissioner
shall issue an amendment to the original permit covering
the additional land described in the amended application,
without the payment of any additional fee.
An operator may withdraw any land covered by a permit,
excepting affected land, by notifying the commissioner
thereof, in which case the penalty of the bond or security
filed by such operator pursuant to the provisions of this
Act shall be reduced proportionately.
Section 6. Duties of Operator.
Every operator to whom a permit is issued pursuant to the
provisions of this Act may engage in open cut mining upon
the lands described in the permit upon the performance of
and subject to the following requirements with respect to
such lands:
(a) Grading shall be carried on to reduce peaks and ridges
to a rolling topography;
(b) The operator shall construct earth dams in final cuts
of all operations where a lake may be formed, if it is
necessary to construct a dam in order to impound water
or other liquids issuing from a mining operation
where such effluent is harmful to or destructive of
plant, animal, or human life; provided further, that
the formation of said lakes will not interfere with
underground or other mining operations or damage
adjoining property, and is done in compliance with
laws, rules, and regulations administered by the
office of the State Engineer;
(c) The operator shall cover, if practical, in the
discretion of the commissioner, the exposed face of a
mineral seam, where acid-forming or combustible
materials are present, to a depth of not less than two
(2) feet or more as may be required by the
commissioner, with earth or spoil materials;
(d) Where practicable, reasonable effort must be made to
encourage the revegetation of lands disturbed by mining
operations. The commissioner shall recommend seeding
practices adapted to the soil and climatic conditions;
and
(e) The operator shall submit to the commissioner no later
than September 1 of each year during which mining
operations are conducted, a map in a form approved by
the commissioner, showing the location of the pit or
pits by section, township, range, and county, with
such other description as will identify the land upon
which the operator has conducted open cut mining during
the year ended on said date and has completed mining
operations therein, with a legend upon such map showing
the number of acres of affected land. The operator
shall also submit with such map a report stating in
detail all steps taken by the operator to effect land
reclamation on the affected land.
Section 7. Entry Upon Lands for Inspection.
The commissioner, or his accredited representatives, may
enter upon the lands of the operator at all reasonable times
for the purpose of inspection, to determine whether the
provisions of this Act are being complied with.
Section 8. Bond of Operator - Substitution of Surety - Violations;
Commissioner May Reclaim Land - Notice of
Compliance - Reducing Penalty of Bond.
Any bond herein provided to be filed with the commissioner
by an operator shall be in such form as the commissioner
prescribes, payable to the Sisseton-Wahpeton Sioux Tribe
conditioned that the operator shall faithfully perform all
requirements of this Act and comply with all rules of the
commissioner which are made in accordance with provisions
of this Act. Such bond shall be signed by the operator as
principal, and by a good and sufficient corporation surety,
licensed to do business on the Reservation, as surety. The
penalty of such bond shall be in amount equal to the cost
of restoration required by this Act as determined by the
commissioner. In lieu of such bond, the operator may
deposit cash and government securities or a bond with
property sureties with the commissioner in an amount equal
to that of the required bond on conditions as above
prescribed; in the discretion of the commissioner, surety
bond requirements may be fulfilled by the operator posting a
bond with land and improvements and facilities thereon as
security, in which event no surety shall be required. The
penalty of the bond or amount of cash and securities shall
be increased or reduced from time to time as provided by
this Act. Such bond or security shall remain in effect
until the mined acreages have been reclaimed, as provided
under the permit, and approved and released by the
commissioner, and shall from time to time cover only actual
mined acreages and may be increased or reduced to cover only
such acreages as remained unrestored.
A bond filed as above prescribed shall not be cancelled by
the surety except after not less than ninety (90) days
notice to the commissioner, and upon the commissioner's
written consent thereto, which shall be forthwith given if
the conditions of the bond have been performed.
If the license to do business on the Reservation of any
surety upon a bond filed with the commissioner pursuant to
this Act shall be suspended or revoked, the operator, within
thirty (30) days after receiving notice thereof from the
commissioner, shall substitute for such surety a good and
sufficient corporate surety licensed to do business on the
Reservation. Upon failure of the operator to make
substitution of surety as herein provided, the commissioner
shall have the right to suspend the permit of the operator
to conduct operations upon the land described in such permit
until such substitution is made.
The Commissioner shall give written notice to the operator
of any violation of this Act or noncompliance with any of
the rules and regulations promulgated by the commissioner
hereunder, and if corrective measures approved by the
commissioner, are not commenced within ninety (90) days the
commissioner may proceed as provided in Section 11 of this
Act to request forfeiture of the bond. Such forfeiture
shall fully satisfy all obligations of the operator to
reclaim the affected land under the provisions of this Act.
The commissioner shall have the power to reclaim, in
keeping with the provisions of this Act, any affected land
with respect to which a bond has been forfeited.
Whenever an operator shall have completed all requirements
under the provisions of this Act as to any affected land,
he shall notify the commissioner thereof. If the
commissioner shall release the operator from further
obligations regarding such affected land, the penalty of
the bond shall be reduced proportionately.
Section 9. Deposit of Fees and Forfeitures.
All fees and forfeitures collected under the provisions of
this Act shall be deposited with the Tribal Treasurer in a
special fund for reclamation purposes.
Section 10. Administration and Enforcement of Act.
This act shall be administered by the Commissioner of Tribal
Lands of the Sisseton-Wahpeton Sioux Tribe who shall have
power to appoint such subordinates as he may deem necessary,
at salaries to be determined by the Personnel Committee of
the Sisseton-Wahpeton Sioux Tribe, and who shall be paid
monthly by the Tribal Treasurer on the warrant of the Tribal
Auditor. It shall be the duty of said commissioner to
administer all of the provisions of this Act and to secure
enforcement of the same.
Section 11. Bond Forfeiture Proceedings.
The Tribal Chairman, upon request of the commissioner, shall
institute proceedings to have the bond of the operator
forfeited for violation by said operator of any of the
provisions of this Act. Before making such request of the
Tribal Chairman, the commissioner shall notify the operator
in writing of the alleged violation or noncompliance, and
shall afford the operator the right to appear before the
commissioner at a hearing to be held not less than thirty
(30) days after receipt of such notice by the operator. At
the hearing, the operator may present for the consideration
of the commissioner, statements, documents, and other
information with respect to the alleged violation. After
the conclusion of the hearings, the commissioner shall
either withdraw the notice of violation or shall request the
Tribal Chairman to institute proceedings to have the bond
of the operator forfeited as to the land involved.
Section 12. Rules and Regulations.
The commissioner shall adopt and promulgate reasonable rules
and regulations respecting the administration of this Act
and covering requirements for land reclamation for each
category of material mined for all mining operations carried
on within the jurisdiction of the Tribe, and in doing so
shall comply with the Administrative Procedures Act of the
Sisseton-Wahpeton Sioux Tribe.
Section 13. Penalty.
Any person required by this Act to have a permit, who
engaged in new open cut mining without previously
securing a permit to do so as prescribed by this Act is
guilty of a misdemeanor, and on conviction thereof shall be
fined not more than Five hundred dollars ($500.00). Each
day of operation without the permit required by this Act
shall be deemed a separate violation.
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