(dissenting).
PREFACE
An adverse impact, of great significance, to the ecological system of the Black Hills, results from this decision. If this decision stands, it will blunt the beauty of Spearfish Canyon for vast gold mining efforts will proceed to the very lip of that canyon; a pit will exist approximately one-half mile from the new visitor’s center. Spearfish Canyon, since the days of the Dakota Territory, has been a pride of the South Dakota people. It is regarded as one of the most beautiful, peaceful canyons in America. Waterfalls and wildlife abound. Here, an unused mining permit is being used as a commercial commodity, traded for on the open market, for big bucks. This Board, composed of citizens of this state, having all of the evidence before it, is now being reversed by the courts of this state. I cannot live with myself and join this decision, not only because of the future destruction of God’s gift to us, but because the statutes of this state, under SDCL ch. 45-6B, envision a greater overall intent and purpose than the majority opinion, by its strict construction, would lead us to be*771lieve. As a vivid illustration, subdivision (6) of SDCL 45-6B-2 implements a balancing test between “diverse socioeconomic impacts” of a mining operation and its “probable beneficial impacts.”
I.
Did the permit expire? Yes. Home-stake did not possess “a life of the mine permit” because there was never any mine (this is conceded). SDCL 45-6B-5. Home-stake could not, “continue” to “engage in” — “resume”—or “temporarily cease” mining. The mine was non-existent. SDCL 45-6B-3(6). Under subdivisions (b) and (c) thereof, an inactivity of mining operations, together with a failure to give notice of cessation is fatal to a “life of the mine permit.” Homestake never even began to mine nor did it give notice of a cessation of activities. This evinces an obvious intention not to mine. Homestake saw fit to dress up the land, upon which it had caused superficial injury, on its exploration activities. Not mining activities. Homestake failed to attend the July 21, 1989, hearing despite notice. The Board deemed this to be a further indication of intent that Homestake had abandoned the permit. On the record, the Board expressed that they had considered Home-stake’s intent by its wide advertising concerning the site, as now being a reclaimed area. Obviously, a “reclaimed area” signifies that there are no future mining activities in a planning stage.
II.
This Board obviously considered, and the courts of this state should consider the people’s will, through its representative government. SDCL 45-6B-2, towards the end of that statute, expresses a public policy which should be meaningful to the courts of this state:
The Legislature finds that an increase in the level of activity in the large-scale gold and silver mining industry in the Black Hills may cause or have the potential to cause impacts of unknown scope to competing land uses, the environment and other natural resources. The Legislature further finds that, due to the unknown consequences of such an increase in activity, additional information on the cumulative impacts of mining is needed for making decisions on future permits or amended permits for large-scale gold or silver mining operations and is necessary prior to the time the board takes any action on such permits for acres in excess of the limits established by § 45-6B-83. (emphasis added mine).
This statute was initially passed in 1982. The two sentences set forth above were added in 1989 and then became effective July 1, 1989. It was in effect during the operative facts of this “transfer of ownership.” Minerva has admitted that it intends to operate the site and further indicates that it will operate far differently than Homestake’s original proposal. Homestake obtained its permit in 1984. Minerva began transfer of ownership concerning the permit in question in the forepart of 1989. Certainly this Board had the rightful, lawful, legislative duty to realistically look into the range of the intense mining activities as proposed by Minerva.
III.
The agency in question is known as the South Dakota Board of Minerals and Environment. An extensive hearing on the transfer of this mining permit took place on July 20 and 21, 1990. Thereafter, the Board entered written findings of fact and conclusions of law. This Board considered that, under the original permit, Homestake would begin in 1984 and conclude its operation in 1988 or 1989. Homestake took materials from the 122 acre project to its mine at nearby Lead, South Dakota, approximately five miles away, pursuant to its permit. Homestake, with its motherlode of gold, has operated commercially in the Black Hills for at least one century. It is the largest commercial gold mining operation on the North American continent. Minerva is a Nevada mining corporation which is a subsidiary of a Canadian company. Minerva’s president lives in Calgary and its business is conducted out of Canada. Herebefore, Minerva has undertaken no mining activities within the State of *772South Dakota. Minerva has no mine in the Black Hills anywhere which rivals the sophistication and stability of the Homestake Gold Mine at Lead. This state board is an administrative tribunal with expertise. Our courts, in South Dakota, have no right to make a decision on whether the Board’s decision was unwise or would reach a same conclusion. Application of Jack Rabbit Lines, Inc., 283 N.W.2d 402, 405 (S.D.1979). Furthermore, the courts are to give great weight to not only the findings of fact by this Board but also to inferences drawn by the Board on questions of fact. Matter of Midwest Motor Express, Inc., 431 N.W.2d 160,162 (S.D.1988). It appears that the circuit court’s decision essentially strips the Board of its discretionary power. This Board has general statutory authority over mining permits and the transfer of permits. See, Application of Livestock State Bank, 252 N.W.2d 227, 229 (S.D.1977) expressing that the range of agency discretion and power extends beyond powers specified as set forth in governing statutes. This Board has been granted general authority over mining permits. See, SDCL 45-6B-5; 45-6B-18; 45-6B-30; 45-6B-33; 45-6B-49; 45-6B-51.
My point is this: The circuit court did not give proper deference to the findings of the Board.
In light of that written above, I cannot take the appellate position that the Board’s action was “arbitrary and capricious, was in violation of statutory provisions and was made upon unlawful procedure” as so entered by the circuit court.
Rather, I take the appellate position that Minerva’s proposed program for Mining Permit # 416 was a proper consideration by this Board. The Board is not a lifeless, bloodless, bureaucratic conduit to permit transfers from huge mining corporations to one another, for money, so they can ravish the earth. Rather, it is comprised of South Dakota citizens who have the right to examine a mining permit during any event in its life. And, particularly, when it is dead on its face, based upon the testimony it hears from live witnesses.
Would not South Dakotans, who serve on this Board, consider the beauty of Spearfish Canyon and compare its splendor to the pocketbook of a Canadian corporation, with no history in this state? The answer is obvious, yes, it would.
Lastly, I agree with Justice Sabers’ dissent concerning the surety bond. In the notice of transfer signed by Minerva on April 20, 1989, the President of Minerva acknowledged “that I must provide a surety to cover such reclamation prior to said transfer.” Minerva failed to post the required surety. Thus, the Board was authorized to deny the request for a permit transfer. We must zero in on ARSD 74:29:04:01(3) in both interpretation and application to the facts before the Board. Courts are obliged to give deference to the Board in such cases. Dept. of Health v. Lutheran Hospitals & Homes Society, 227 Neb. 116, 416 N.W.2d 222, 227 (1987); Miller v. Civil Constructors, 373 N.W.2d 115, 117 (Iowa 1985); Application of Skjonsby Truck Dine, Inc., 357 N.W.2d 227, 231 (N.D.1934); Beal v. First Federal Savings & Loan Ass’n., 90 Wis.2d 171, 279 N.W.2d 693, 698 (1979); Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).
I would reverse the circuit court.