Answer will likely be for the courts to decide later
By Brett Nachtigall
HOT SPRINGS – On the Nov. 8 election ballot, voters across all of Fall River County will offer their opinion on whether or not the mining of uranium should be considered a nuisance, and thus be in violation of county ordinance.
A vote “Yes” means that it is “an unlawful nuisance;” and a vote “No” essentially changes nothing, whereas enCore Energy is currently awaiting a final decision from the state and federal government for the applicable permits to being In Situ Leach mining in the Dewey-Burdock area of Fall River and Custer Counties.
But what does declaring uranium mining a nuisance actually mean to the potential future of uranium mining in Fall River County?
The answer to that question is best gleaned from the discussion held at the Aug. 11, 2022, Fall River County Commissioners Special Meeting where they approved adding the initiated measure to the Nov. 8 election ballot, after 448 people signed a petition and submitted it to the commission.
At that meeting, Fall River County States Attorney Lance Russell advised the commission to not add it to the ballot because the county does not have the authority to regulate uranium mining per S.D. Codified Law.
In specific regards to uranium mining – where the state and federal government are charged with granting the necessary permits and providing the regulation – Russell described the preemption doctrine, which refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict.
“If the federal government, or the state government, totally occupies the field in terms of regulation for a certain type of entity, the lower entities of government don’t have any authority as it relates to that,” Russell said, as the described how South Dakota Codified Law specifically identifies uranium mining in the realm of state and federal jurisdiction.
Russell also cited a 2006 ruling by the South Dakota Supreme Court regarding how Deuel County, located in the northeastern part of the state, was justified in not putting an initiated measure (regarding a zoning issue) on an election ballot because the county did not have the authority to enact the amendment under the current state statutes.
Since the county is unable to issue a permit for uranium per S.D. Codified Law, Russell said the county cannot regulate the practice in any way through its ordinances.
“Therefore, if one of you, county commissioners, proposed an ordinance that says the same thing as the initiative, I would come in here and I would tell you that we’re gonna get sued and we don’t have the authority to do so,” Russell said.
Also at the same county commission special meeting – which was held solely for the purpose of whether or not to add the initiated ordinance to the election ballot – Attorney Jim Sword, who penned the petition, acknowledged the fact that the court system would likely ultimately decide whether or not the nuisance ordinance can be enforced.
Sword however said that all counties have the right, by ordinance, to declare public nuisance, and that the ordinance on the election ballot has nothing to do with the permitting process. “Basically, what the people have done through this process is they are proposing an ordinance to declare a public nuisance,” he said.
Sword continued by urging the commission, that since the petition was submitted with more than enough verified signatures, they should put it on the ballot. “Then if you have constitutional issues … take it up with the court after it passes,” he said. “But your obligation is to put it on the ballot, let the people vote. Then if you have problems with it, then you can take it up with the court at a later point in time.”
Also at the Aug. 11 county commission special meeting, Attorney Richard Williams with the Rapid City law firm of Gunderson, Palmer, Nelson and Ashmore, who was representing the uranium mining company, quoted an additional state statute, SDCL 21-10-2, that deals with nuisances at the state level. In referencing the statute, he said once uranium gets permitted by the state, and is being properly operated within the requirements of that permit, it cannot be deemed a nuisance by any level of local government.
The commission ultimately voted 4-1 to allow the initiated nuisance measure onto the Nob. 8 election ballot, with only Commissioner Heath Greenough voting in opposition.
When asked recently how a nuisance declaration would impact their planned ISR uranium mining operations, Bill Sheriff, the Executive Chairman of enCore Energy, said, “We’re facing opponents who have declined to debate us in public forums after we’ve gone through the permitting process and demonstrated that the extraction technology is sound and that measures have been taken to protect public water resources.
“County ordinances do not supercede state law and our extraction of uranium deposits is in accordance with state and federal law,” Sheriff went on to say. “The nuisance declaration would give residents legal standing to file a lawsuit, albeit an illegitimate one, as enCore energy owns the mineral rights which authorizes extraction of those resources in accordance with state and federal law. At the end of the day, enCore doesn’t feel that a nuisance declaration by the county would have any significant legal standing that would deter uranium extraction.”