By Cathy Nelson
HOT SPRINGS – An ordinance declaring that uranium mining is an unlawful nuisance will appear on the general election ballot on Nov.8, following action by the Fall River County Board of Commissioners on Thursday, Aug. 11, when they met in a special meeting to vote on whether to allow it to be placed on the November ballot.
The matter came before the commission after a group of Fall River County citizens circulated a petition and gathered 448 valid signatures, then presented it to the auditor.
The board’s action was done in accordance with South Dakota Codified Law 7-18A-13, which states, in part, “The board shall enact the proposed ordinance or resolution and shall submit it to a vote of the voters in the manner prescribed for a referendum within sixty days after the final enactment. However, if the petition is filed within three months prior to the primary or general election, the ordinance or resolution may be submitted at the primary or general election.”
The meeting began with Chairman Joe Falkenburg telling the audience, of about 25 people, that the purpose of the meeting was not to discuss the “pros and cons of uranium mining, but we’re here to discuss the presenting of a petition and what we as commissioners can do.” He then asked States’ Attorney Lance Russell, who is the county’s legal representative, to give information about the commission’s power to act on the petition.
Russell said that the Eighth Circuit Court of Appeals within the last couple of days had withheld the permit for PowerTech in Edgemont. “It makes it very important that we do things very deliberately as it relates to this, because they have an interest that supersedes all of state law on the matter,” he said, “because it has something to do not only about state law, but it has to do with federal law.”
He quoted additional laws that refer to the power of the county board in relation to the mining initiatives and permits. He told the commissioners that they do not have the authority to pass the ordinance. He said the county board could face a lawsuit by putting it on the ballot.
Attorney Jim Sword, who was in the audience and had created the petition, responded to Russell’s comments. “There’s nothing in the ordinance that mentions anything about permits,” he said. “The law says ‘you shall put it on the ballot.’”
“Put it on the ballot, let the people vote.” Sword said, “Take it up with the court after it passes. If the people vote it down, then the courts don’t have to deal with it.”
Next to speak was Attorney Richard Williams with the Rapid City law firm of Gunderson, Palmer, Nelson and Ashmore, who was representing Powertech, quoted SDCL 21-10-2, that deals with nuisances at the state level. Once it gets permitted by the state it cannot be deemed a nuisance.
Sword said there is power at the county level to deal with nuisance permits.
Russell agreed with Williams saying the county does not have the authority to issue a permit. “If we were to put this on a ballot we will subject ourselves to a lawsuit,” he said.
From the audience John Davis said, “We the people, rule.” He asked Russell if he has any personal interest in the issue, and Russell responded that he did not, that he was advising the commission board.
Commissioner Joe Allen said “I think we’re obligated to the law. We had 448 people sign this petition. The petitioners went out in good faith and brought that to us, and it’s our job to put it on the ballot and let the courts fight it out after that. Our job today is to put it on the ballot.”
State Representative Trish Ladner said, “I talked with the Secretary of State’s Office this morning. It’s everybody’s right to gather signatures and to submit the signatures and language to the auditor. The auditor then presents it to the commissioners for approval, and the state’s attorney supplies the language.”
“It’s the scope of what we need to do today,” Ladner said. “The signatures are in, the petition can be submitted tomorrow, and it’s the commissioners’ duty whether it is on the ballot. It’s alright to have it on the ballot, according to the Secretary of State.”
Commissioner Deb Russell said, “It doesn’t hurt for the people to vote, but it will hurt when it gets smacked down, and that’s probably coming. I’m not against us putting it on the ballot.”
Commissioner Heath Greenough, “It’s probably good for the people to have a voice, but I’m going to have trouble not taking our legal representative’s advice. We’re caught in the middle.”
“The state regulates this,” said Mark Hollenbeck of Edgemont, a Powertech official. “We’ve had public hearings ad nauseum. Everybody’s had their opportunity at numerous public hearings. The system is working, and some people don’t like the answer, so now they go to the county.”
Another member from the audience, Reno Red Cloud with the Oglala Sioux Tribe, stood and said as a representative of the tribe he supports the nuisance petition.
State’s Attorney Russell, said, “If the county puts it on the ballot, and it gets voted down, then there’s nothing to fight about. There’s a duty in the statute to place it on the ballot. The underlying issue is, do we have the authority to do this? It is the board’s decision to place it on the ballot.”
After about half an hour of discussion, the commission voted four to one to place the ordinance on the ballot. Commissioner Greenough voted ‘no.’
The following is how the ordinance that will appear on the ballot.
Initiated Measure: The initiated measure would make uranium mining an unlawful nuisance in Fall River County. Vote yes to adopt the initiated measure. Vote no to leave the law as it is.