Nepotism, inattention to elected duties, and general incompetence aren’t nuisances to the 217,008 South Dakotans who reëlected Governor Kristi Noem yesterday. But 1,993 voters in Fall River County say uranium mining is a nuisance, and that’s enough votes to make that declaration law…at least until uranium miners bring it to a judge.
Encore Energy (which last fall gobbled up Azarga, which in 2014 gobbled up Powertech) would still like to slurp up a whole bunch of water from the Inyan Kara and Madison aquifers in a search for uranium under the Hills around the Dewey-Burdock area near the Wyoming border. Lots of locals would rather Encore left the uranium and the water alone, so they collected 450 signatures to place on the November ballot an initiative declaring uranium mining a nuisance. That initiative passed yesterday, winning 56% of the 3,530 votes cast in Fall River County.
Encore/Azarga/Powertech contends the county can’t regulate EAP’s business, and those who are declaring his business a nuisance are (paraphrasing) thieving socialists:
Mark Hollenbeck, manager for the Dewey Burdock uranium project, said even if it’s approved, the ballot measure will not prevent his company from starting the project.
“There’s a state law that says that anything that’s licensed by the state cannot be declared a nuisance at the local level,” Hollenbeck said. “So, I really don’t think it has much effect on us.”
Hollenbeck said the issue boils down to property rights.
“As a rancher I don’t like it at all, because basically it allows people to steal property rights,” Hollenbeck said. “All of the ranchers who are currently mineral right holders on the site—there’s a group of people in Fall River County attempting to steal their mineral rights from them” [Lee Strubinger, “Fall River Co. Residents Vote on Whether to Ban Uranium Mining,” SDPB, 2022.10.11].
Hollenbeck, who used to legislate, is right that counties can’t make nuisances out of things the state permits. SDCL 21-10-2 says, “Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” We have a whole “South Dakota Uranium Exploration Act” passed in 1982 and codified as SDCL Chapter 45-6D encouraging the properly safeguarded exploitation of uranium resources.
It would seem the ordinance Fall River voters just approved cannot do what it seeks to do. Fall River state’s attorney Lance Russell should expect a call from Encore/Azarga/Powertech’s lawyers shortly.