I respectfully dissent.
In my view, the regulation at issue (Cal. Code Regs., tit. 14, § 3805.5, subd. (d)) is inconsistent with the home rule nature of the Surface Mining and Reclamation Act of 1975 (SMARA). (Pub. Resources Code, § 2710 et seq.)
In People ex rel. Dept. of Conservation v. El Dorado County, the Supreme Court deemed “accurate[]” this court’s description of SMARA, which stated: “ ‘In keeping with the recognition of the diverse conditions throughout the state, SMARA provides for “home rule,” with the local lead agency having primary responsibility.’ ” (People ex rel. Dept. of Conservation v. El Dorado County (2005) 36 Cal.4th 971, 984 [32 Cal.Rptr.3d 109, 116 P.3d 567] (El Dorado)) Although the State Mining and Geology Board sets policy and reviews the ordinances of the lead agency, the Director has a limited role, secondary to the lead agency, as to projects undertaken within the lead agency’s purview. “[T]he director is vested with significant, but limited, powers and responsibilities under SMARA . . . .” (Id. at p. 986.)
Before approving a reclamation plan and financial assurances, the lead agency submits the proposal to the Director, who may comment. But the comments do not bind the lead agency.. (El Dorado, supra, 36 Cal.4th at pp. 984-985, citing SMARA.) Once a project is undertaken, the Director may initiate enforcement actions, but only if the lead agency fails to act. (36 Cal.4th at p. 985, citing SMARA.) “ ‘Where the lead agency fails to fulfill its duties under SMARA, the Board may take over the powers of a lead agency ....’” (36 Cal.4th at p. 985, citing SMARA.) Note in this regard that the Board, not the Director, takes over for the lead agency. This discussion does not list all of the Director’s responsibilities under SMARA, but it is indicative of the nature of those responsibilities.
Although, as the Supreme Court concluded in El Dorado, the Director’s role is not merely advisory, it is nonetheless secondary and limited. Unless the lead agency fails to fulfill its responsibilities, the Director has no authority to countermand the decisions of the lead agency. The home rule nature of the statutory scheme is interrupted only when home rule breaks down. The regulation at issue, however, gives the Director primary, though joint, authority on the single decision of whether to release financial assurances and therefore prevents the lead agency from acting in its SMARA role.
*591The Legislature, in adopting an act such as SMARA, declares public policy and fixes the standard. In filling up the details, the administrative agency cannot deviate from the Legislature’s standard but instead must harmonize with the act. (Knudsen Creamery Co. v. Brock (1951) 37 Cal.2d 485, 492-493 [234 P.2d 26].) To be valid, a regulation must be (1) consistent with and not in conflict with the act and (2) reasonably necessary to effectuate the act’s purpose. (Gov. Code, § 11342.2; Physicians & Surgeons Laboratories, Inc. v. Department of Health Services (1992) 6 Cal.App.4th 968, 982 [8 Cal.Rptr.2d 565].) Although SMARA does not explicitly state that the lead agency, alone, decides whether to release financial assurances, any other interpretation violates the Legislature’s intent to establish home rule and allow the lead agency primary responsibility within its jurisdiction.
This analysis is similar to the analysis of the Legislative Counsel’s office. Yet the majority gives the Legislative Counsel analysis short shrift, merely noting that the analysis was done before the Supreme Court decided El Dorado, in which the court held the Director’s role was not merely advisory. In my opinion, the Legislative Counsel analysis was much broader and appropriately relied on the home rule nature of SMARA. The El Dorado court also noted the home rule nature of SMARA. However, El Dorado was not about home rule; it was about whether the Director has standing to petition for judicial relief when the Director believes home rule has failed. This case presents the very different question of who has primary responsibility.
Whether there may be public policy reasons to abrogate home rule is irrelevant in the face of the Legislature’s determination to give lead agencies the lead. Therefore, remonstrances such as the protection of the public fisc from instances in which financial assurances are released cannot justify giving the Director primary authority over the decision to release. In any event, it would seem that a lead agency, usually an elected council, would be more politically attuned to the public’s financial loss than would be an appointed, distant bureaucrat.
I also do not find it persuasive on the issue before us that the Director is a co-beneficiary on the financial assurances or that, as the El Dorado court held, the Director has “a substantial interest in reclamation plans and financial assurances being both legally consistent with SMARA and practically adequate to accomplish SMARA’s goals and state reclamation policy promulgated thereunder.” {El Dorado, supra, 36 Cal.4th at p. 992, fn. omitted.) If this gives the Director primary responsibility for determining whether to release financial assurances under SMARA, then why did the Legislature give the lead agency primary responsibility for reviewing and approving the reclamation plan and financial assurances in the first place? The Board can set policy *592regarding the release of financial assurances by adopting regulations to guide the lead agency. That would be consistent with the home rule nature of SMARA. Allowing the Director to prevent the lead agency from making the release determination, in the first instance, however, is not similarly consistent. I would, therefore, reverse the judgment of the trial court and grant declaratory relief.