OGLALA SIOUX TRIBAL MINING CODE
Section 85 .1 DEFINITIONS . For the purpose of this Code the following words and phrases have the meanings ascribed to them in this Section:
(1) "Code" means the Oglala Sioux Tribal Mining Code.
(2) "Affected Lands" means the surface and subsurface areas on the Pine Ridge Indian Reservation where any prospecting, exploration or mining operation is or will be conducted, including, but not limited to: on site private ways and roads appurtenant to any such areas; land excavations; prospecting sites; drill sites or workings; refuse banks or spoil piles; evaporation or settling ponds or lagoons; leaching dumps; placer areas; work, parking, storage or waste discharge; areas in which structures, facilities, equipment, machines, tools or other material or property which result from or are used in such operations are situated; land from which overburden is to be or has been removed and land upon which overburden or waste rock is to be or has been deposited; land which is disturbed by the building of access roads, storage areas or other support facilities for the purpose of mining and unstable sloped.
(3) "Aquifer" means a water-bearing bed or stratum of permeable rock, sand, or gravel capable of storing, transmitting, or yielding water in sufficient quantities.
(4) "Borrow Pit" means any excavation site outside the limits of construction providing material necessary to that construction, such as fill material for embankments.
(5) "Chemicals" means substance whether liquid, gaseous or solid which when applied by any person may present hazards to either human health or the reservation environment.
(6) "Mining Commission" means the Land and Resource Committee of the Oglala Sioux Tribe. Said Committee shall make policy decisions and also make recommendations regarding the Mining Code.
(7) "Contamination" means the introducing by any means of any substance in liquid, solid or gaseous form into or upon reservation resources in sufficient quantities as may be directly or indirectly injurious to the health, safety or welfare of the reservation population as a result of domestic, commercial, industrial, agricultural or recreational activities or which may be directly or indirectly injurious to livestock, wildlife, fish or aquatic life and their inhabitant.
(8) "Coordinator" means the Coordinator of the Natural Resources Regulatory Agency.
(9) "Agency" means the Natural Resource Regulatory Agency of the Oglala Sioux Tribe. The term "Agency" has the same meaning in this Code as well as in the Oglala Sioux Tribal Oil & Gas Regulations.
(10) "End Hauling" means the removal and transportation of excavated material, pit or quarry overburden, or road cut material from the excavation site to a deposit site not adjacent to the point of removal.
(11) "Erodible Soils" means those soils exposed or displayed by mining activities that may be readily moved by water.
(12) "Exploration" means the act of searching for or investigating a mineral deposit and includes but not limited to sinking shafts, tunneling, drilling core and bore holes, and digging pits or cuts and other works for the purpose of extracting samples prior to commencement of development of extraction operations, and the building of roads, access ways and other facilities related to such work.
(13 ) "Life of the Mine Permit" means a permit to conduct a mining operation, which is in effect as long as:
(a) An operator continues to engage in the extraction of minerals and complies with the provisions of this code;
(b) Mineral reserves are shown by the operator to remain in the mining operation and the operator plans to, or does, temporarily cease production for one-hundred-eighty days or more if she/he files a notice thereof with the commission stating the reasons for non-production, a plan for the resumption and other necessary activities as established by the commission to maintain the mine in a non-producing state. The requirement of a notice of temporary cessation does not apply to operators who resume operation within one year and have included, in their permit applications, a statement that the affected lands are to be used for less than one-hundred-eighty days per year;
(c) Production is resumed within five years of the date production ended, or the operator files a report requesting an extension of the period of temporary cessation of production with the commission stating the reasons for the continuation of non-production and those factors necessary to, and his/her plans for, resumption of production. A temporary cessation of production may not be continued for more than ten years without terminating the operation and fully complying with the reclamation requirements of this Section 85.4.
Such permit includes that period of time after cessation of production necessary to complete reclamation of affected lands, until the commission releases, in writing, the operator from further reclamation obligations regarding the affected land, declares the mining operation terminated, and releases the surety thereon.
(14) "Limits of Roadway Construction" means the area occupied by the completed roadway including the cutbank, fill slope, and the area cleared for construction of the roadway.
(15) "Load Bearing" means the part of the road which is supportive soil, earth, rock or other material directly below the working surface and only the associated earth necessary for support.
(16) "Mineral" means zeolite, sand, gravel, clay and any other material removed from the earth for reuse or further proceedings.
(17) "Mining Operation" means the development or extraction of all mineral from its natural occurrence on affected land. The term shall be broadly construed to include open mining, surface mining and surface operation, and the disposal of refuse from underground and in site mining. Moreover, the term means operations on affected lands including: transportation, mining, concentration, milling, smelting, refining, cleaning, preparation, evaporation and other processing.
(18) "Notice to Comply" means a notice issued by the Agency which may, among other things, require initiation and/or completion of action necessary to prevent, correct and/or compensate for present or future damage to Reservation resources, or present or future harm to the Reservation population, which has resulted, or which may in the future result, from mining operations.
(19) "Open Mining" means the mining of minerals by removing the overburden lying above such deposits and mining directly from the deposits thereby exposed. The term includes mining directly from such deposits where there is no overburden, mining by auger method, and the production of surface mining refuse . The term also includes, but is not limited to, the following: open cut mining; open pit mining; strip mining; quarrying; placer operations; and the excavation and removal of sand, gravel, clay, rock, or other minerals for the primary purpose of construction or maintenance of roads. Prospecting and exploration activities shall be included within the meaning of this term when the removal of geologic sample materials exceeds a cumulative total in excess of one ton. Open mining shall not include: excavation or grading conducted for farming; on-site road construction; or other on-site construction, but shall include adjacent or off-site borrow pits.
(20) "Operator" means any person, firm, partnership, association or corporation or any tribal, federal, state, county or municipal government or governmental enterprise engaged in or controlling a mining operation.
(21) "Ordinary High Water Mark" means the mark on the shores of all waters, which may be found by examining the beds and banks an ascertaining where the presence of and action of waters are to common and usual, and so long continued in all ordinary years, as to mark upon the soil a character distinct from that of the abutting upland, in respect to vegetation.
(22) "Overburden" means materials of any nature, consolidated or unconsolidated, which overlay a natural deposit of useful material or ores and such earth and other materials after removal from their natural state in the process of exploration or mining .
(23) "Perennial Stream" means any stream segment which normally maintains a surface flow of water year round .
(24) "Permit" means any authorization, license, or other approval action required by this code before any -exploration or mining operations may take place.
(25) "Person" means any: individual, association; business; company; joint venture; partnership; private, public, tribal or municipal corporation; tribal enterprise; tribal, state or local governmental entity; or other association of individuals or persons of whatever nature.
(26) "Prospecting" means the same as exploration.
(27) "Reclamation" means the implementation of procedures, during and after an exploration or mining operation, intended to minimize and/or mitigate the disruption of Reservation resources resulting from the operation and to protect Reservation resources and the health, safety, and welfare of future economic interests of the Reservation population by providing for subsequent beneficial use of affected lands through the rehabilitation of plant cover, soil stability, water resources, and other appropriate measures.
(28) "Reclamation Plan" means the operator's written proposal, submitted to the Agency as part of any notice or permit applications required by the Code.
(29) "Refuse" means all waste soil, rock, mineral, liquid, vegetation and other material directly resulting from or displayed by the mining, cleaning or preparation of minerals and includes all waste or abandoned materials limited to, garbage, trash, leftover cable and abandoned equipment and any other material which may adversely affect or damage Reservation resources or which may pose a threat to the health, safety or welfare of the Reservation population.
(30) "Relief Culvert" means a structure to relieve surface runoff from roadside ditches to prevent excessive build-up in water volumes and velocity.
(31) "Reservation" means the Pine Ridge Indian Reservation. The Pine Ridge Reservation shall be taken to include all territory within the original reservation boundaries, including fee patent lands, roads, waters, bridges, and lands used for agency purposes.
(32) "Reservation Resources" means air, land, surface water, groundwater, fish and wildlife, trees and other vegetation, cultural, historic, and religious resources and shall also means capital improvements located within the Pine Ridge Indian Reservation.
(33) "Reservation Population" means all people either residing or otherwise conducting business or other activities on all land, both trust and fee, within the exterior boundaries of the Pine Ridge Indian Reservation and only subsequent land acquisitions.
(34) "Side Casting" means the act of moving excavated material to the side and depositing such material within the limits of road construction or dumping over the side and outside the limits of construction.
(35) "Spoil" means any material removed as overburden or mining refuse generated during mining operations, or any excess material removed or generated as overburden or generated during road construction which is not used within the limits of construction.
(36) "Spoil Bank" means a deposit of excavated overburden or mining refuse.
(37) "Surface Mining" means the same as open mining.
(38) "Tribe" means the Oglala Sioux Tribe.
(39) "Tribal Council" means the elected Tribal Council member of the Oglala Sioux Tribe.
(40) "Walk-on Prospecting" means those casual exploration activities properly authorized by the Agency which have the potential for causing little or no surface disturbance and which will not disturb water quality. Examples of such activities are: hand sample collection, geochemical sampling, geologic mapping, geophysical surveys (non-land disturbing), boundary or claim surveying, or location work.
(41) "Water Bay" means a diversion ditch and/or hump in a trail or road for the purpose of carrying surface water runoff into the vegetation duff, ditch, or other dispersion areas so that it does not gain the volume and velocity which causes soil movement and erosion.
Section 85.2 APPLICATION FOR MINING PERMIT AND FEE. Any person desiring to engage in a mining operation shall make written application to the Agency for a permit for each mining operation on forms furnished by the Agency. The permit, if approved, shall authorize the operator to engage in the mining operation on the affected lands described in his/her application for the life of the mine. The application form shall contain the following information:
(1) The legal description and area of affected land;
(2) The owner of the surface of the area of the affected land;
(3) A reclamation plan pursuant to Section 85.3 submitted with the application;
(4) The owner of the substance to be mined;
(5) The source of the applicant's legal right to enter and initiate a mining operation on the affected land;
(6) The address and telephone number of the general office and the local address and telephone number of the applicant;
(7) The mineral or minerals to be extracted;
(8) A description of method of mining;
(9) The size of the area to be worked at any one time;
(10) The timetable estimating the proposed duration of the mining operation;
(11) The written consent, duly acknowledged, of the applicant and such other persons, if any, necessary to grant physical access by the Agency to the area under application from the date of the application and during the life of the permit as is necessary to assure compliance with the provisions of this code; and
(12) The application fee of one-thousand dollars shall accompany the application.
Section 85.3 RECLAMATION PLAN REQUIREMENTS. The reclamation plan required by this Code shall be based upon provisions for, or satisfactory explanation of, all general requirements for the type of reclamation proposed to be implemented by the operator. Reclamation shall be required on all the affected land. The reclamation plan shall include the following information:
(1) A statement regarding the condition of the affected lands prior to any exploration or mining including existing uses at the time exploration or mining began; capability of -the land prior to any exploration or mining operations to support other uses considering soil characteristics, vegetation, availability of surface and groundwater, and topography; and the potential productivity of the land prior to exploration or mining under high levels of management;
(2) A statement regarding the proposed subsequent use of affected lands after reclamation which is supported by satisfactory evidence that all the owners of a possessory interest in the lands concur with this proposed use;
(3) Evidence that the proposed subsequent use is lawful under applicable land use and environmental laws;
(4) A description of the types of reclamation the operator proposed to achieve upon the affected lands and the amount of acreage accorded to each type;
(5) A description of how the reclamation will be achieved, including a timetable indicating when the reclamation plan will be implemented. The description of how the reclamation plan will be achieved shall include:
(a) The engineering techniques to be used in reclamation and a description of the major types of equipment to be used;
(b) An estimate of the cost per acre for the reclamation;
(c) A description of the manner and type of revegetation on affected lands which shall be sufficient to establish a diverse, long-lasting vegetation cover that is capable of self-regeneration and at least equal in cover to the original on the affected lands;
(d) Proposed practices to protect adjacent lands, reservation resources, and the reservation population from harmful effects emanating from the affected lands;
(e) Specifications for surface gradient restoration to a surface suitable to the proposed subsequent uses after the reclamation is completed;
(f) Plans to prevent disturbance of prevailing hydrologic balance of the affected lands and surrounding area and to prevent disturbance of the quality and quantity of surface and groundwater;
(g) Methods for control and disposal of contamination from exploration or mining refuse;
(h) Where applicable, plans for diversion of surface water around disturbed lands and for restoration of stream channels and stream banks to a condition minimizing erosion, siltation and other pollution;
(i) Where necessary to remove overburden to explore or mine minerals, plans for removal and segregation of topsoil from other soil. If such topsoil is not to be replaced on a backfill area within a time short enough to prevent deterioration of the topsoil or vegetative cover, other means shall be employed so that the soil is protected from water and wind erosion, remains free of contamination by other acid or toxic materials, and in a usable condition for sustaining vegetation when restored during reclamation. If, in the judgment of the Agency, such topsoil is of insufficient quantity or of poor quality for sustaining revegetation, or if other material can be shown to be more suitable for the revegetation requirements, the operator with the prior approval of the Agency, may remove, segregate and preserve in a like manner such other material which is best able to support revegetation; and
(j) A topographic map of suitable scale portraying the final land use for each portion of the affected lands.
(6) If applicable, any operator who needs to develop road(s) as part of his/hers mining activities shall comply with the requirements as provided in Title II infra.
Section 85.4 HEARING - MINING PERMIT APPLICATION. Upon receipt of an application for mining operation permit and all fees due from the operator, the Agency shall set a date for the hearing on such application not more than ninety days after the date of filing. Prior to the holding of any such hearing, the Agency shall provide notice to any person previously filing a protest or petition for hearing or statement in support of the application, and shall publish notice of the time, date and location of the hearing in a newspaper of general circulation in the locality of the proposed mining operation once a week for two consecutive weeks immediately prior to the hearing. A final decision on the application shall be made within one-hundred-twenty days of the receipt of the application. In the event of serious unforeseen circumstances or significant snow cover on the affected land that prevents a necessary on-site inspection, the Agency may reasonable extend the maximum time to sixty days .
Section 85.5 MODIFICATION OF APPLICATION PRIOR TO HEARING. Prior to the date set for the hearing on the application, the applicant may at the request of the Agency, modify the application or correct any errors.
Section 85.6 GRANT OF PERMIT OR GROUNDS FOR DENIAL. The Agency shall grant a permit to an operator of the application complies with the requirements of this Section and all applicable tribal laws. The Agency may not deny a permit, except for one or more of the following reasons
(1) The application is incomplete or the surety has not been posted;
(2) The applicant has not paid the required fee;
(3) Any part of the proposed mining operation, the reclamation program or the proposed future use is contrary to the laws or regulations of the tribe;
(4) The mining operation will adversely affect the stability of any significant, valuable and permanent man-made structures located within two-hundred feet of the affected land, except where there is an agreement between the operator and the persons having an interest in the structure that damage to the structure is to be compensated for by the operator;
(5) The mining operation would be in violation of any zoning or subdivision regulations;
(6) The operator is currently found to be in violation of the provisions of Title III with respect to any mining operation with the reservation; or
(7) The land is unsuitable for a mining operation, as' determined pursuant to Section 85.16.
Section 85.7 DUTIES OF THE OPERATOR.
(1) Every operator to whom an approved permit is issued pursuant to this Code may engage in exploration or mining upon the affected lands in conformity with the terms of that permit and this Code;
(2) All reclamation provided for in this Code shall, to the extent practicable, be conducted simultaneously with exploration or mining operations and in any case shall be initiated at the earliest possible time after completion or abandonment of exploration or mining activities on any segment of the permit area. Reclamation activities shall be completed not more than two (2) years after completion or abandonment of exploration or mining on each segment of the area for which the permit is requested, unless such period is extended by the Agency;
(3) Within forty-five days after completion or abandonment of exploration or mining on an area under permit or within thirty days after each annual anniversary date of the operating permit, which ever is earlier, or at such later date as may be approved by the Commission, and each thereafter until reclamation is completed and approved, the operator shall file a report of activities completed during the preceding year on a form prescribed by the Agency which report shall:
(a) Identify the operator and permit number;
(b) Locate the operation by legal description and with relation to the nearest town or other well know geographic feature;
(c) Estimate acreage to be newly disturbed by exploration or mining in the next twelve month period;
(d) Up-date any maps previously submitted or provide such maps as may be specifically requested by the Commission. Such maps shall show:
1. The operating permit area;
2. The unit of affected lands;
3. The area to be explored or mined during the next twelve month period;
4. If completed, the date of completion of exploration or mining;
5. If not completed, the area that will not be further disturbed by the exploration or mining;
6. The date beginning, amount and current status of reclamation performed during the previous twelve months.
Section 85.8 TRANSFER OF PERMIT. No transfer, sale, or other assignment of the rights granted under any permit issued pursuant to this Code shall be made without the written approval of the Agency.
Section 85.9 LICENSE FEE REQUIREMENTS. An operator shall obtain a license to mine sand, gravel, or rock to be crushed and used in construction. The fee for the license is an annual fee of one hundred dollars. Said fee shall be deposited in the account of the Agency, which shall be used in addition to other authorized funding sources, for the continuation of said Agency. No fee for surety shall be required of units of the Oglala Sioux Tribal government.
Section 85.10 OPERATING AND RECLAMATION STANDARDS. An operator shall comply with the following operating and reclamation standards
(1) Surface mined areas shall be reclaimed and shaped to control erosion and eliminate hazards to domestic animals and wildlife, to protect public health and safety and the environment and to provide for appropriate future beneficial land use;
(2) All refuse, machinery, equipment and materials from the pit operation shall be disposed of in a manner so as to create the least amount of unsightliness and unproductive areas and so as to not pollute surface or groundwater;
(3) Land shall be revegetated in such a way as agreed upon by the operator, the local conservation district and the landowner which establishes a diverse, effective and long-lasting vegetative cover. For any future land use other than crop land, the revegetation shall be capable of self-regeneration and at least equal in extent of cover to the natural vegetation of the surrounding area;
(4) If it is necessary to remove overburden in order to remove the construction aggregates, topsoil shall be removed from the affected land and segregated from other spoil. If such topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, vegetative cover or other means shall be employed so that the topsoil is preserved from wind and water erosion, remains free of any contamination by other acid or toxic material and is in a usable condition for sustaining vegetation when restored during reclamation;
(5) Any disturbance to the prevailing hydraulic balance of the affected land and of the surrounding area and to the quality and quantity of water in surface and groundwater systems both during and after the pit operation and during reclamation shall be minimized. Operations shall be conducted to protect all waters from pollution by siltation, waste, debris and toxic fluids or materials;
(6) All surface areas of the affected land, including spoil piles, shall be stabilized and protected so as to effectively control erosion and attendant air and water pollution. Noxious weed infestations shall be control during all phases of the pit operation and reclamation; and
(7) Any area outside of the affected land shall be protected from slides, subsidence or damage occurring during the mining operation and reclamation. All high walls shall be reduced to a slope not greater than the angle of repose upon abandonment of the mining operation, unless such a reduction would create conditions more detrimental than preservation of high wall. Prior to slope reduction, the operator shall take precautions to limit access to the high wall area and to warn the public of the high wall . Such precautions shall include fencing and posting of warning signs. If high wall reduction is deemed impossible, impractical or aesthetically undesirable by the Agency, the Agency shall prescribe adequate fencing.
Section 85.11 PUBLICATION OF NOTICE OF MINE OPERATION. The notice shall contain the identity and address of the operator and resident agent, the location of the mining operation, the mineral to be mined, the dates of commencement and completion of the operation, the proposed future use of the affected land and the location where additional information about the operation may be obtained.
Section 85.12 NOTICE OF OPERATION TO AGENCY. The operator shall submit notification, consisting of a map of the affected area and a notice to the Agency of his/her intent to commence mining at a new mine site at least thirty days prior to beginning mining operations.
Section 85.13 EMERGENCY WAIVER OF NOTICE REQUIREMENTS. When an emergency situation exists and when in the public interest, the Agency may waive the thirty day notice requirement of Section 85.12.
Section 85.14 SECURITY REQUIRED. Prior to the commencement of mining an operator shall submit to the Agency a surety in the amount of five hundred dollars per acre of affected land. In Lieu of filing a surety for each operation, the operator may post a twenty-thousand dollar surety for Tribal mining of minerals . If an operator increases the area to be explored or mined during the twelve month period, the Agency may increase the amount of the bond to compensate for the increase. The Agency shall have the authority to determine the amount of the bond that shall be conditioned upon the operator's faithful performance of the requirements set forth in this Code . In lieu of the surety bond required by this section, the operator may file with the Agency a cash deposit, negotiable securities acceptable to the Agency or an assignment if a savings account or of a savings certificate on an assignment form prescribed by the Agency. Liability under the bond shall be maintained as long as reclamation is not completed. In lieu of the required surety, the operator may deposit cash or a certificate of deposit made payable to the Agency in an amount equal to that of the required surety. Said amount shall be deposited into an escrow account, and subsequently returned provided that all mining activities are completed pursuant to the provisions of this Code.
Section 85 .15 ANNUAL FEE AND REPORT. Together with the annual one-hundred dollars license fee, the operator shall submit the following information for each location mined during the previous year: the tonnage of material removed, a map showing the areas mined, the areas reclaimed and the acreage of each.
Section 85.16 UNSUITABLE LAND - NO PERMIT ISSUED. No permit may be issued for mining operation proposed on unsuitable land. Land is unsuitable when the following conditions cannot be satisfactorily mitigated:
(1) Reclamation of the affected land pursuant to the requirements of this chapter is not physically or economically feasible;
(2) Substantial disposition of sediment in stream or lake beds, landslides or water pollution cannot feasibly be prevented;
(3) The adverse effects of the proposed mining operation on the historic or archaeological aspects of affected or surrounding land outweigh the benefits of the proposed mining operation;
(4) The proposed mining operation will result in the loss or reduction of long-range productivity of aquifer, public and domestic water wells, watershed lands, aquifer recharge areas or significant agricultural areas; or
(5) The biological productivity of the Land is such that the loss would jeopardize threatened or endangered species of wildlife indigenous to the area.
Section 85.17 ANNUAL FILING OF MAP AND FEE. Within sixty days prior to anniversary date of the permit each year, the operator shall submit a map on the scale provided for by showing the reclamation accomplished and any deviations from the originally approved operating and reclamation plans . Except for operators which are units of Tribal government, the operator shall submit, in addition to the map, an annual fee of one-hundred dollars.
Section 85.18 EXPLORATION PERMIT. The exploration permit shall contain the following:
(1) The name of the operator who intends to conduct the mineral exploration operations;
(2) The operator's address and principle place of business;
(3) The name and address of the resident agent for the service of process on the operator;
(4) A statement that the mineral exploration operation will be conducted pursuant to and subject to the provisions of this chapter;
(5) A brief description of the type of mineral exploration operation to be conducted;
(6) The legal description of the land to be explored by section, township and range;
(7) The approximate date upon which the operation will commence;
(8) A statement that the applicant has the authority to conduct an exploration operation on the lands described in the application;
(9) The written consent, duly acknowledged, of the applicant and such other persons, if any, necessary to grant such access to the Agency or its agents to the area under application from the date of the application and thereafter for such time as is necessary to assure compliance with the provisions of this chapter.
Section 85.19 EXPLORATION RECLAMATION PLAN. Reclamation is mandatory on all affected lands. The reclamation plan shall include:
(1) A description of the type of reclamation the operator proposes to achieve the reclamation of the affected lands including a proposed timetable pursuant to Section 85.36 and 85.37;
(2) A narrative description of the temporary and permanent plugging and capping procedure to be used; and
(3) The estimated cost of implementing and completing the proposed reclamation and estimated cost of plugging and sealing each test hole pursuant to the provisions of Sections 85.28 and 85.29.
Section 85.20 MAP OF EXPLORATION AREA. The applicant shall submit with the exploration permit a map, topographic map if available, of the proposed exploration area and of the adjacent one-half mile area surrounding the proposed exploration area. The map shall identify the location of all known natural springs, lakes, ponds, reservoirs, water pipelines, earthen dams, private and public water wells, buildings, proposed or existing roads or trails and the tentative test hold locations within one-fourth of one-fourth of a section. Where closely placed test holes are anticipated, an outline of that area shall be indicated in lieu of identifying each test hole location. The scale of such map shall be not more than one to twenty-five thousand. Such map shall clearly present the required information. Submission of the most recent United States geological survey malls, if available, is adequate and the operator shall clearly identify the information required by this section on the map.
Section 85.21 WATER RIGHTS OR WATER POLLUTION CONTROL RESTRICTIONS. The operator shall abide by any restrictions regarding water rights or water pollution control as notified, in writing, by the Agency within thirty days of the filing of the notice.
Section 85.22 TIME FOR COMMENCEMENT OF EXPLORATION OPERATIONS. The operator may commence the exploration operation upon receipt of the written restrictions provided for in Section 85.21.
Section 85.23 CONSULTATION WITH SURFACE OWNER-PREFERENCES FOR RECLAMATION AND TRAVEL RESTRICTIONS. Before the operator may enter upon the surface of land proposed to be explored, the operator shall consult with the surface owner and person in possession of the surface, if other than the owner, and provide such persons with the opportunity to designate, in writing, preferences for the reclamation of the affected land . A copy of such preferences shall be filed by the operator with the Agency and considered by the applicant. The owner may also specify, in writing, reasonable restrictions regarding travel areas on the property and further specify that travel under extreme moisture conditions will be avoided . A copy of such reasonable restrictions shall be filed by the operator with the Agency and are binding on the operator. Such consultation may be conducted prior to commencing the exploration operation or during various phases of the exploration operation.
Section 85.23. DRILLING OF EXPLORATION OPERATIONS.
(1) The number and location of drill holes, test pits and other excavations shall be shown on the map or aerial photograph submitted with the Permit Application.
(2) Drill sites, test pits, bulldozer work and other excavation shall not be conducted in dry or flowing stream channels . Excavations and bulldozer work should be kept to a minimum and all reasonable efforts should be made to locate drill sites where no bulldozer work will be necessary.
(3) Drilling mud and drill cuttings should be confined to the site. Whenever possible these materials should be replaced in the drill hole as soon as geophysical logging are completed. All other refuse from drilling operations shall be disposed of by burial or by hauling to an authorized landfill . Drill holes should be plugged with a full clay plug.
(4) Drill holes shall be abandoned in the following manner:
(a) Any artesian flow of groundwater to the surface be eliminated by a plug made of cement or similar material or by a procedure sufficient to prevent such artesian flow unless an agreement is reached with the Agency for another use of such water.
(b) Drill holes which have encountered any aquifer shall be sealed, utilizing a sealing procedure that is adequate to prevent fluid communication between aquifers.
(c) Each drill hole shall be securely capped at a minimum of two feet below either the original land surface or the collar of the hole, whichever is the lower elevation. The cap is to be made of concrete or material that is satisfactory for such capping. The site shall be back-filled above the cap to the original land surface.
(d) Each drill site shall be reclaimed pursuant to this Code including, if necessary, reseeding if grass or any other crop is destroyed.
(5) Abandonment in a manner provided in paragraph (d) of the Section shall occur immediately following the drilling of the hole and the probing for minerals in the exploration process . However, a drill hole may be maintained as temporarily abandoned without being plugged, sealed or capped shall be left in such a condition as to allow a fluid communication between aquifers . Such temporarily abandoned drill holes shall be securely covered in a manner which will prevent injury to persons or animals .
(6) No later than sixty days after the completion of the abandonment pursuant to paragraph (4) of this section of any drill hole which has artesian flow at the surface, the person conducting the exploration or mining shall submit to the Agency a report containing the location of such hole to within two hundred feet of its actual location, the estimated rate of flow of such artesian flow (if such is known) , and the facts of the technique used to plug such hole. Such report and all information contained therein shall be confidential in nature and shall be a matter of public record .
(7) No later than twelve months after the completion of the abandonment of any drill hole pursuant to paragraph (4) of this section, there shall be filed by the person conducting the prospecting with the forty acre legal subdivision, and the facts of the technique used to plug, seal or cap the hole. Such reports and all information contained therein shall be confidential in nature and shall not be a matter of public record.
Section 85.23.2 STORAGE OF FUELS AND CHEMICALS.
(1) Large quantities of gasoline, diesel oil, petroleum products and toxic chemicals, either on the surface or underground, will be stored in durable tanks or containers and within an area surrounding by dikes to contain or prevent escape in case of a major spill or leak.
(2) All underground service areas for diesel powered equipment and underground fuel transfer areas must be equipped with pumps that will prevent petroleum waste and spills from gaining access to the mine drainage system.
Section 85.24 EXPLORATION PERMIT FEE. A fee of two-hundred-fifty dollars shall accompany the exploration permit application.
Section 85.25 DOMESTIC WATER WELLS-INFORMATION REQUIRED OF OPERATOR. The Agency may require the operator to provide, prior to commencing or during the course of an exploration operation, water qualify information concerning designated domestic water wells within one-half mile of the proposed exploration area. If the operator is refused access to any well, the operator shall notify, in writing, the Agency of such refusal and may not be required thereafter to provide any information concerning such well.
Section 85.26 INSPECTION OF AREA BEFORE EXPLORATION-SURETY FOR COSTS OF PLUGGING TEST HOLES AND RECLAMATION. The Agency may inspect the area proposed to be explored. Based upon this inspection, the criteria established in Section 85.19, and the submitted reclamation plan, the Agency shall set the level of the surety necessary to guarantee the costs of plugging ten percent of the proposed test holes and reclamation of the Agency before the operator commences the exploration operation in such form as required by the Agency. In lieu of filing or depositing a surety for each exploration operation, the operator may post a twenty thousand dollar surety for Reservation-wide exploring. If a Reservation wide surety is posted, the person posting the surety shall otherwise comply with the provisions of this chapter for every area to be explored.
Section 85.27 GRADING. Grading shall be carried on so as to create a final topography appropriate to the final use selected in accordance with Section 85.36.
Section 85.28 DISPOSAL OF REFUSE. All refuse from the mining operation shall be disposed of in a manner so as to create the least amount of unsightliness and unproductive areas, and will not pollute surface or ground water.
Section 85.29 REVEGETATION. In those areas where revegetation is part of the reclamation plan, land shall be revegetated in such a way as agreed upon by the operator, and the landowner which establishes a diverse, effective and long lasting vegetative cover that is capable of self-regeneration and at least equal in extent of cover to the natural vegetation of the surrounding area.
Section 85.30 REMOVAL AND HANDLING OF TOPSOIL. If it is necessary to remove overburden in order to mine the mineral, topsoil shall be removed from the affected land segregated from other spoil. If such topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil is preserved from wind and water erosion; remains free of any contamination by other acid or toxic material, and is in a usable condition for sustaining vegetation when restored during reclamation. If, in the opinion of the commission such topsoil is of insufficient quantity or of poor quality for sustaining vegetation or if other strata can be shown to be more suitable for vegetation requirements, the operator shall remove, segregate and preserve in a like manner such other strata which are best able to support vegetation.
Section 85.31 DISTURBANCE TO HYDROLOGIC BALANCE. Any disturbance to the prevailing hydrologic balance of the affected land and of the surrounding area and to the quality and quantity of water in surface and ground water systems both during and after the mining operation and during reclamation shall be minimized.
Section 85.32 SLIDES, SUBSIDENCE OR DAMAGE PROTECTION - FENCING. Any area outside of the affected land shall 'be protected from slides, subsidence or damage occurring during the mining operation and reclamation. All high walls shall be reduced to a slope not greater than the angle of repose upon abandonment of the mining operation, unless such a reduction would create conditions more detrimental than preserving the high wall. Prior to slope reduction, the operator shall take precautions to limit access to the high wall area and to warn the public of the high wall . Such precautions shall include fencing and posting of warning signs . If high wall reduction is deemed impossible, impractical or aesthetically undesirable by the commission of minerals and environment, the commission shall prescribe adequate fencing.
Section 85.33 SURFACE AREAS PROTECTED - SPOIL PILES - WEEDS. All surface areas of the affected land, including spoil piles, shall be stabilized and protected so as to effectively control erosion and attendant air and water pollution . Noxious weeds infestations shall be controlled during all phases of the mining operation and reclamation.
Section 85.34 CHOICES OF RECLAMATION - REQUIREMENTS FOR OPERATOR. Depending on the operator's choice of reclamation, the operator shall meet the following requirements:
(1) If the operator's choice of reclamation is forest planting, she/he may, with the approval of the Agency, select the type of trees to be planted. Planting methods and care of stock shall be governed by good planting practices . If the operator is unable to acquire sufficient planting stock of desired tree species at a reasonable cost, she/he may defer planting until planting stock is available to plant such land as originally planned, or he/she may select an alternate method of reclamation;
(2) If the operator's choice of reclamation is rangeland restoration, the affected land shall be restored to the satisfaction of the Agency to slopes commensurate with the proposed land use and shall not be too steep to be traversed by livestock. The legume seed shall be properly inoculated in all cases . The area may be seeded either by hand, or power or by the aerial method. The species of grasses and legumes and the rates of seeding to be used per acre shall be determined primarily by recommendations from the Agency, and experienced reclamation personnel of the operator, after considering other research or successful experience with range seeding. No grazing shall be permitted on reclaimed land until the planting is firmly established. The Agency, in consultation with the landowner, the Tribal Land and Resource Committee and the Pine Ridge Agency (BIA), shall determine when grazing may start;
(3) if the operator's choice of reclamation is for agricultural or horticultural crops which normally require the use of farm machinery. Preparation for seeding or planting, fertilization and seeding or planting rates shall be governed by general agricultural and horticultural practices except where research or experience in such operations differ with these practices; and
(4) If the operator's choice of reclamation is for the development of the affected land for homesite, recreational, industrial or other uses, including food, shelter and ground cover for wildlife, the basic minimum requirements necessary for such reclamation shall be agreed upon by the operator, landowner and the Agency.
Section 85.35 TIME FOR COMPLETION OF RECLAMATION - PLANTINGS NOT REQUIRED UNDER CERTAIN CONDITIONS. All reclamation provided for in Section 85.34 shall be carried to completion by the operator with all reasonable diligence, and each phase of reclamation shall be completed within five years, unless such period is extended by the Agency upon a finding that additional time is necessary for the completion of the terms of the reclamation plan, except that:
(1) No planting of any kind shall be required to be made on any affected land being used or proposed to be used by the operator for the deposit or disposal of refuse until after the cessation of operations productive of such refuse, or proposed for future mining, or within depressed haulage roads or final cuts while such roads or final cuts are being used or made, or where permanent pools or lakes have been formed; and
(2) No planting of any kind shall be required on any affected land so long as the chemical and physical characteristics of the surface and immediately underlying material of such affected land are toxic, deficient in plant nutrients, or composed of sand, gravel, shale or stone to such an extent as to seriously inhibit plant growth and such condition cannot feasibly be remedied by chemical treatment, fertilization, replacement of overburden or like measures .
Section 85.36 ROAD LOCATION, DISIGN, CONSTRUCTION AND MAINTENANCE.
(1) Roads can be major contributors to sediment production resulting in water quality degradation in connection with mining activities . A well designed, soundly constructed and properly maintained road system can significantly reduce water pollution problems. A reasonable amount of latitude in the design, construction and maintenance is allowable consistent with the purposes of this Code. Consultation and field reconnaissance of road location by an interdisciplinary team of tribal professionals may be required as a condition to issuance of a permit.
(2) The following standards shall apply to road location:
a. Minimize road density by using existing and abandoned roads whenever possible and practical. Keep new road construction at an absolute minimum.
b . Locate roads to minimize disturbance to all surface and ground water resources on the reservation. Avoid locating roads in narrow canyons, marshes, wet meadows, natural drainage channels, and geological hazard areas.
c. Locate roads a safe distance from streams or lakes when running parallel to water bodies.
d. Fit the road to the topography to minimize soil disturbance.
e. Keep road grades within 8-10%, or less where possible and practical. Where excessive excavation requirements or topography constraints are present, occasional grades of up to 15% may be used with prior Agency approval. Keep steep segments as short as possible where the grade necessarily exceeds 8-10%.
f . Avoid long, continuous grades; avoid long, completely flat segments where ponding will occur.
g. Avoid headwalls at a tributary drainage source on ridgetop routes. Locate roads slightly off-center on ridgetop routes.
h. Avoid locating roads on excessively steep, unstable, erosional, or slide prone slopes. Obtain soils and area geophysical information and review sensitive lands maps where available and survey adjacent similar areas for vegetation and topography "indicators" for suspected problem areas.
i. Minimize the number of stream crossing. All stream crossings must be approved by the Agency in writing in advance.
j. Choose crossing locations at right angles to the stream channels.
(3) The following standards apply to road design:
a. Build the minimum adequate road for the exploration mining system used. Design roads which can carry the anticipated traffic load with reasonable safety, accomplishes the mining requirements economically, and minimize impacts to the other resources available in the area.
b. Fit the road to the topography so that alterations of natural features are minimized.
1. Minimize and balance cuts and fills . Use waste excavation in fills to avoid heavy sidecasts whenever feasible.
2. Sacrifice alignment to avoid heavy excavation. Fit the road to the topography so landscapes alterations are minimized.
3. Plan and locate switchbacks on .the flattest slope available to avoid heavy excavation.
(4) Avoid sidecasting material on slopes over fifty (50$) percent which are terminated within five hundred feet of a stream or lake.
(5) Fill slope ratios unless otherwise approved by the Agency are:
Common earth -- 1-1/2:1
Rock -- 1-1/2:1
Sandy Soil -- 2:1
Cut slope ratios unless otherwise approved by the Agency are:
Common earth (on slopes over 70%) - 3/4:1
Common earth (on slopes to 50%) - 1/2:1
Hardpan, broken or soft rock - 1/3:1
Rock - 1/4:1
c. Design roads to minimize interference with surface and subsurface drainage patterns.
d. Plan stream crossings with care so that channel and bank disturbance is minimized.
e. Where necessary to protect fill embankments from stream erosion, a headwall (usually riprap or gabions) is recommended to prevent erosion of the fill.
f. All roads should be designed with adequate permanent or temporary water management and/or crossing structures so that the road does not become a source of erosion and sedimentation.
1. All roads should be outsloped or ditched on the uphill side and appropriate surface drainage should be provided by the use of crowning, ditching, adequate culverts or cross drains, relief culverts, water bars, diversion ditches and bridges as the location, road standard or topography may require.
2. Cross drains, relief culverts and diversion ditches shall not discharge directly into natural waters or onto erodible soils or fill slopes unless adequate outfall protection is provided which prevents erosion.
3. Effective drainage structures shall be installed at all low points in the road gradient. Generally, spacing should be no wider than as follows:
Maximum Drainage Spacing
0 to 8%
8% to 15%
15% or over
This guideline provides only a rule of thumb approximation. Parent material, slope position and drainage area or pattern may dictate wider or closer spacing.
4. Drainage structures on permanent roads shall be designed to handle a fifty year flood and should be functional at all times. Plugged or damaged structures shall be cleaned or replaced before runoff occurs.
5. Drainage structures on temporary roads which cross natural water courses shall be designed to handle a twenty-five year flow and shall be removed upon completion of use, restoring the watercourse to its original water carrying capacity.
6. Relief culverts shall meet the following minimum specifications:
a. Be at least eighteen inches in diameter or the equivalent;
b. Be installed with adequate headwalls, where needed, and sloping downward toward the outside shoulder of the road at a minimum to keep the culvert clean and at a maximum of four percent.
7. Drainage structures or relief culverts shall be installed concurrently as road work progresses .
8. Design road grades and locate culverts so silt will settle out and not drain into the watercourses .
Section 85.37 THE FOLLOWING STANDARDS APPLY TO ROAD CONSTRUCTION:
a. Merchantable timber removed for right-of-way construction shall be removed or decked at suitable locations where the timber will not be covered by fills or sidecasts. Fall all trees that lie within the required right-of-way boundary, prior to sub-grade construction. Fall all danger tree snags and leavers as directed by the Agency which could unpredictably fall and hit the road.
Deposit excess debris, slash and road building materials in stable locations.
Do not allow the low point of a grade break to occur on deep fills if possible.
All ditches, culverts, cross drains, water bars and diversion ditches shall be installed concurrently with construction of the roadway.
After the spacing of surface drainage structures, if necessary, so that water spills on stable areas.
Avoid unnecessary soil and vegetation disturbance.
Do not divert the runoff or streamflow from two or more drainage into one channel.
Do not dredge materials from streams for road construction.
Clear stream chancel of all debris and slash generated during operations prior to removal of construction equipment from the vicinity or the Winter season, whichever is first.
Material used in road construction shall be free of loose stumps, excessive accumulation of slash, and woody material of more than three cubic feet.
During road construction, fills or embankments shall be built up in two foot layers. Each layer shall be compacted by operating the tractor or other equipment over the entire surface of the layer.
Construction shall be accomplished when low flow periods and soil conditions are least likely to result in excessive erosion and/or soil movement.
When soil exposed by road construction appears to be unstable or erodible and is so located that slides, slips, slumps or washing may reasonably be expected to cause unreasonable damage to a reservation resource, than such exposed soil areas shall be seeded with grass, other cover or be treated by other means acceptable to the Agency.
When temporary stream crossings are necessary, pick locations requiring a minimum of bank disturbance and soil displacement. Equipment shall not be used in stream crossing without prior written approval of the Agency.
Fully backslope each graded section except where vertical banks are proven to be more stable than sloping ones.
Rough grade a new road only as far as that road can be completely finished during the current construction season. Drain incomplete segments of permanent or temporary roads to be left over winter season or other extended periods, outsloping or ditching with cross drains, water bars, and diversion ditches to minimize soil erosion and stream siltation.
Do not conduct earth moving activities when the soils are saturated. Construct grades through wet solid during dry season.
Use grade changes (concave vertical curve) to turn water off roads, particularly to protect fills at stream crossings.
Shut down construction during periods of heavy rainfall.
Section 85.38 THE FOLLOWING STANDARDS APPLY TO BRIDGES:
a. A bridge is required for crossing any stream or lake which is regularly used for recreational boating as designated by the Agency.
b. Permanent bridges shall be designed and constructed at the minimum to pass without obstruction the fifty year flood level of the stream it spans. Bridges should be designed by a registered engineer unless the Agency authorizes specific exemptions for particular bridge crossings.
c. One end of each new permanent log or wood stringer bridge should be tied or firmly anchored, if the elevation of the bridge is within ten vertical feet of the fifty year flood level.
d. Plan all construction activities in the streams to coincide with low seasonal streamflows.
e. Excavation for placement of bridge sills, piers, abutments or wing walls shall be done from outside the ordinary high water mark, unless such operations are authorized by the Agency.
f. Construction equipment shall be operated in a manner that will cause the least aggravation to the stream bed and banks. Remove any stumps, logs, chunks, branches, etc., that might have been pushed into the stream bed during construction.
g. Bridge approaches shall slope away from the bridge deck to avoid drainage onto the deck and into the water body.
h. Bridge approach fills and banks shall be stabilized as necessary to prevent undue or excessive erosion, paying particular attention to proper ditching. Riprap, bulkheads, wing walls or other measures may be required.
i. Stream bed and bank areas shall be restored as nearly as possible to their original condition upon completion of the project.
j. When earthen materials are used for bridge surfacing, curbs or guards of adequate size shall be installed which will prevent the surface material from entering the stream.
k. Temporary bridges shall be installed during low water period, used or removed before the following peak water flow (spring runoff).
Section 85.39 THE FOLLOWING STANDARDS APPLY TO CULVERTS:
a. All permanent culverts shall be capable of handling the fifty year flood.
b. Minimum sizes of permanent culverts are:
1. Thirty-six inches in diameter for migratory fish streams. Migratory fish streams are those containing a species of fish which must move to another body of water to complete its life cycle. Open bottom culverts may be required.
2. Twenty-four inches in diameter for resident game fish streams. Open bottomed culverts may be required.
3. Eighteen inches in diameter for other waters.
c. Culverts constructed for permanent stream crossings should be of galvanized steel, concrete, aluminum or plastic and of sufficient gauge or thickness. Two feet of half the diameter of the culvert, whichever is greater, shall be the minimum overburden.
d. The alignment and slope of the culvert shall conform to the natural flow of the stream for all streams.
e. In areas where fish are present, the bottom of the culvert shall be installed slightly below the natural stream bottom at both ends of the culvert.
f. All culvert installations shall terminate on materials that will not readily erode under full flow of the culvert.
1. If water is diverted from its natural channel, return the water to its natural channel via culverts, flume spillway or other non-erodible structure.
2. When flumes, downspouts, downfall culverts, and other methods are used to protect erodible soils or return water to its natural stream course, the discharge point must be protected from erosion by: reducing water velocity by catch basins, use of rock spillways or gabions, riprapping, or installing permanent splash plates.
g. Culvert approaches shall be hand-cleared of natural and logging debris for a distance of one hundred feet upstream from the culvert inlet of all material that may reasonably be expected to plug the culvert.
h. The inlet ends of all ditch culverts shall have adequate catch basins and headwalls to minimize the risks of culvert siltation and "by-pass" of the culvert from erosion of the headwall. Rock headwalls shall be placed on all culverts where annual peak flows exceed 100cfs; and where headwall erosion is expected on smaller streams, as determined by the Agency.
i. Ditch culverts that may reasonably be expected to carry near capacity water volumes or to encounter some siltation should:
1. Be skewed at least twenty-five degrees from perpendicular to the roadbed in the direction of the water flow.
2. Have a smooth gradient drop of not less than two percent.
j. Fill around culverts shall 'be compacted during placement to avoid failure by undercutting and stream bed excavation should be avoided.
k. All required culverts, ditches, cross drains, drainage dips, water bars and diversion ditches shall be installed concurrently with construction of the roadway.
Section 85.40 THE FOLLOWING STANDARDS APPLY TO TEMPORARY WATER CROSSING
a. "Fording" or limited crossings that utilize the natural stream bed as a road may be conditionally permitted through approval of specific crossing site location(s), frequency and date of occurrence.
b. Temporary bridges or culverts, adequate to carry the twenty five year flow for the operation period can be used when:
1. A permanent road is not justifiable, and
2. The temporary structure is installed after spring runoff and removed prior to the possibility of commencement of the following spring runoff.
c. Install culverts in a manner which will cause the least amount of siltation. Limit tractor or machine activity in bed of stream to the absolute minimum necessary for culvert installation, and time this activity to coincide with low flow periods (late summer and early fall).
d. Temporary bridges or culverts shall be promptly removed upon completion of use. The removal shall include:
1. Restoration of the stream channel to its original water carrying capacity.
2. Efforts to avoid siltation to the stream bed.
3. Remove or protect approaches to the crossings by riprapping, revegetation, or whatever means necessary to insure the stabilization of the approach below the fifty year flood level.
Section 85.41 .THE FOLLOWING STANDARDS APPLY TO ROAD MAINTENANCE:
a. Maintain roads immediately after logging and whenever necessary by cleaning ditch lines, blade debris from empty landings, trimming damages culvert ends and chunking out culvert openings.
b. Place all material obtained during maintenance of ditches, etc., in a safe bench or cove location. Never deposit such materials directly into a stream bed or in areas where the material can be washed into a stream during high flow periods.
c. Retain outslope drainage and remove all beams on the outside edge, except those intentionally constructed for the protection of road grade-fills.
d. Road surfaces shall be maintained to reduce erosion and water quality degradation potential by using water, surface binders, sealers or oilmats. Extreme care should be exercised to avoid excess application of any treatment.
Section 85.42 THE FOLLOWING STANDARDS APPLY TO ACTIVE ROADS:
To the extent necessary to protect Reservation resources, the following maintenance shall be conducted on such roads:
1. Culverts, ditches, water bars and all other drainage structures must be kept open and functional and shall be inspected annually.
2. The road surface shall be maintained as necessary to minimize erosion of the surface and subgrade:
a. Roads shall be watered or treated with chemicals to prevent "powdering" of the road surface.
b. During and upon completion of the operation, road surfaces shall be crowned, outsloped or water barred and unnecessary beams removed to prevent erosion of the roadbed.
3. All ditches and drainage structures shall be cleaned of slash, debris, and siltation upon completion of operations. Structure damages or made less effective as a result of the operation shall be replaced or restored.
Section 85.43 THE FOLLOWING STANDARDS APPLY TO ABANDONED ROADS:
No subsequent maintenance of an abandoned road is required after the following procedures are completed:
1. Road surfaces shall be outsloped, water barred, revegetated or otherwise left in a stable condition suitable to prevent erosion.
2. Ditches shall be adequate to carry water loads and cleaned on completion of use.
3. Temporary culverts, bridges or other water crossing structures shall be removed.
4. The road shall be blocked to vehicular traffic and should be posted "Closed to Vehicular Traffic".
Section 85.44 THE FOLLOWING STANDARDS SHALL APPLY TO ROAD BALLAST AND WASTE DISPOSAL AREAS:
a. Road ballast or gravel pits shall be located a safe distance from streamways. Pit runoff shall be directed away from the water course: Rock removal from stream beds overflow channels is not permitted.
b. During construction and operation of rock quarries, gravel pits or borrow pits, runoff water shall either be diverted tot he forest floor or passed through one or more settling basins, as approved by the Agency.
c. During operation, surface flows shall be prevented from passing through or out of borrow pit areas.
d. If rock is to be washed, provision must be made for adequate settling basins(s) to prevent airy stream siltation.
e. Spoil disposal shall be located:
1. Where the final slopes after completion of the project will be no greater than the fill slope ratios set forth in Section 85.36(5), for the material dumped;
2. On areas having the lowest potential timber productivity, where practical;
3. On slopes where the erosion or mass soil movement is minimal;
4. All spoil will be placed to allow drainage without water ponding.
f. All rock quarries, gravel pits, spoil areas and borrow areas in use when these regulations are adopted shall be reclaimed within two years from time the rock or gravel source is exhausted or abandoned. Reclamation procedures include:
1. Remove all deleterious material that has potential for damaging reservation resources or that would prevent revegetation of an otherwise plantable areas,
2. Grade all cut and fill slopes to the fill slope ratios-set forth in Section 85.36(5), for material present unless otherwise approved.
3. Revegetation to the extent practical.
Section 85.45 THE FOLLOWING STANDARDS APPLY TO ROADSIDE BRUSH CONTROL:
Use mechanical control methods in preference to chemical means where practical.
Section 85.46 THE FOLLOWING STANDARDS APPLY TO ROAD SURFACE TREATMENT:
a. Apply oil that is not-potentially contaminated by any substance that is hazardous to any reservation resource or to the health, safety or welfare of the reservation population to the road surface only when the air temperature is above ff F, when the ground is frost free, and during the season when there is a minimal chance of rain for the next forty eight hours.
b. Water the road surface prior to application of oil to assist in penetration.
c. Construct a temporary beret alongside the road shoulder where needed to control runoff of the applied chemical.
d. Take extreme care to avoid excess application of road chemicals.
e. When cleaning out storage tanks or the application equipment tanks used for storage and application of road treatment materials, dispose of the rinse water, other fluids and solids on the road surface or in a place safe from potential contamination of water.
Section 85.47 OPERATIONS DRAINAGE
1. All surface waters which might damage regraded slopes or drain into the exploration or mine operations will be intercepted on the uphill side of the highwall or other operations perimeters by diversion ditches and be conveyed by stable channels or other means to natural or prepared watercourses outside the operations area, unless the operator determines, with the written concurrence of the Agency that such ditches and channels are unnecessary or would create a serious pollution problem. Such diversion ditches and channels shall be of sufficient size and grade to carry the twenty five year flow event. If diversion ditches are likely to carry surface water only intermittently, they should be re-topsoiled and revegetated with grasses, forbs and/or legumes. All diversion ditches and channels should be mapped or shown on the aerial photograph submitted with the permit application.
2. No surface-waters will be discharged through or permitted to infiltrate onto existing mine workings.
3. Surface waters and groundwater will be controlled to prevent their entry into mine workings.
4. All drainage from active exploration or mining operations shall be treated in impoundment or treatment facilities before discharge into a water course. under no circumstances should water be discharged into highly erodible soil or spoil banks.
5. Spoil shall not be placed in drainage ways.
6. When cleaning underground sumps or tanks, the sediment shall never be flushed to a water course or deposited where it will wash into a lake or stream.
VIOLATIONS & PENALTIES
SECTION 85.48 GENERAL PROVISIONS
a. The Agency has the authority under this Code, pertaining to mineral mining and reclamation operations, to administer and enforce a permit system consistent with the provisions of Title II, supra; and to assess civil penalties.
b. Penalties are assessed under this Title to deter violations and provide for civil sanctions of provisions of this Code and amendments hereto and to provide for a right to a hearing.
SECTION 85.48 VIOLATION - NOTICE TO OPERATOR. If the Agency has reason to believe that a violation of an order, permit or regulation issued under the authority of this Title has occurred, written notice shall be given to the operator of the alleged violation. Such notice shall be served personally or by registered mail upon the alleged violation or his/her agent for service of process. The notice shall state the provision alleged to be violated and the facts alleged to constitute the violation and shall recommend possible corrective action.
SECTION 85.50 VIOLATION - CEASE AND DESIST ORDER. If the Agency determines that any violation of any provisions of this Title or any notice, permit or regulation issued or promulgated under authority of this Title exists, the Agency, not less than forty-eight hours after service of the notice required by Section 85.49, may issue a cease and desist order. Such order shall set forth the Code provisions alleged to be violated, the facts alleged to constitute the violation, and the time by which the acts or practices complained of shall be terminated and shall recommend possible corrective action. Such order shall be served personally or be registered mail upon the alleged violator or his/her agent for service of process. The operator may pay a fine as provided for in this Title to the Agency or he/she may request a hearing pursuant to this Section.
SECTION 85.51 VIOLATION - HEARING. The Agency may require the alleged violator to appear before the Agency no sooner than twenty days after the issuance of such cease and desist order; except that an earlier date for hearing may be requested by the alleged violator.
The shall permit parties to respond to the notice served, to present evidence and arguments on all issues.
SECTION 85.52 VIOLATION - MODIFICATION, SUSPENSION OR REVOCATION OF PERMIT. Upon a determination, after hearing, that violation of a permit provision, any order, or a regulation has occurred, the Agency may modify, suspend, or revoke the pertinent permit.
SECTION 85.53 PENALTIES.
(a) Any operator who willfully and knowingly authorizes, orders, or carries out the violation of any provision of this Code or any amendments hereunder or who violates any determination or order of the Director pursuant to the Code or any amendments hereunder is liable to either a penalty not to exceed ten thousand dollars ($10,000) for each day during which violation continues or, for multiple violations by mineral mining operations, a penalty not to exceed five-thousand dollars ($5,000) for each day during which the violation continues, which may be recovered in civil action.
(b) No permit for new mining operations shall be granted to any operator who is currently found to be in violation of the Code with respect to any operations on this Reservation.
(c) In the event any operator fails to comply with the penalty pursuant to subsections (a) and (d) of this Section, the Agency is authorized to bring suit for a temporary restraining order, a preliminary injunction, or a permanent injunction to prevent any further or continued violation of such order. Suits under this subsection shall be brought in the Tribal Court.
(d) Upon a determination, after hearing(s), that a violation of a permit provision has occurred, the Agency may suspend, modify, or revoke the permit. If the Agency suspends or revokes the permit, the operator may continue reclamation operations only for the purpose of bringing the operation into satisfactory compliance with the provisions of the operator's permit. Only when such operations are completed to the satisfaction of the Agency, the Agency may reinstate the permit.
SECTION 85.54 OPERATION WITHOUT A LICENSE. An operator who operates a mine for extraction of mineral(s) without a valid license obtained pursuant to the provisions of Section 85.9, is guilty of Operating Without A License and shall be fined two hundred and fifty dollars.
SECTION 85.55 REVOCATION OF LICENSE. The Agency may revoke after hearing the license of any operator found to be in violation of any provision of Section 85.53.
SECTION 85.56 REFUSING ENTRY FOR INSPECTION AS VIOLATION OF LICENSE. It is a-violation of the terms and conditions of an operator's license to refuse entry or access to any authorized representative of the Agency, who, after presenting appropriate credentials, requests entry for the purpose of inspection under Section 85.6. No operator shall obstruct, hamper or interfere with any such investigation. If he/she requests, the operator of the mining site shall receive a. report within ten days after the inspection setting forth the observations made by a person making the inspection which relate to compliance with Section 85.6.
SECTION 85.57 EXEMPTION OF EXTRACTION FOR PERSONAL USE. The provisions of this Code, inclusive, do not apply to extraction of sand, gravel or rock to be crushed and used in construction by an individual for personal use.
I. REVENUE GENERATED FROM THE SALE OF NATURAL RESOURCES - DISPOSITION
The Natural Resources Regulatory Agency shall keep an accurate account of money received from any sale of Natural Resources. Quarterly reports of all fiscal accounts of the Natural Resources Regulatory Agency, shall be submitted to the Oglala Sioux Tribal Treasurer on the last working day of the months of March, June, September, and December. All revenue collected from such sales including license fee or permits shall be deposited in the Natural Resources Regulatory Agency fund, up to a minimum of $200,000. to cover the administrative expenses of said office. Any revenue in excess of $200,000. shall be deposited in the General Fund.
II. CONSENT TO JURISDICTION
All persons who conduct business activities within the boundaries of the Pine Ridge Indian Reservation, including but not limited to employment contracts, leases, permits, mining oil and gas regulations or other commercial activities hereby agree to abide by the laws, codes, ordinances and regulations of the Oglala Sioux Tribe and consent to the civil jurisdiction of the Oglala Sioux Tribal Courts.
III. URANIUM DEVELOPMENT PROHIBITED
DEFINITION: "Uranium" means the chemical element "U"
The following uranium exploration activities are expressly prohibited by .any person, Indian or non-Indian, corporations, partnerships or associations, federal, state governments or municipalities thereunder within the boundaries of the Oglala Sioux Indian Reservation:
Said activities include but are not limited to the act of searching for or investigating a uranium deposit, sinking shafts, tunneling drilling test holes, digging pits or cuts or other works for the purpose of extracting samples, including bulk samples, prior to commencement of development or extraction operations and test facilities to prove the commercial grade of uranium deposit. The term does not include those activities which cause very little or no surface disturbance, such as air borne surveys and photographs, use of instruments or devices which are hand carried or otherwise transported over the surface to make magnetic, radioactive or other tests and measurements, boundary or claim surveying, location work, annual assessment work required to maintain the validity of a mineral claim or any other work which causes no greater land disturbance than is caused by ordinary lawful use of the land by persons not exploring for uranium deposits.