(dissenting).
It was wrong for Department and Board to consent to release Homestake’s surety bond in the amount of $661,800 before a replacement surety was posted. In doing so, the Board executed a “non-standard” Release Of Surety, which, inconsistently, “did not release Homestake from liability for reclamation under the permit.” The Board thereby brought all this trouble on itself.
SDCL 45-6B-20 provides in part that the Board
shall set the level of the surety necessary to guarantee the costs of reclamation of affected public and private lands. The surety shall be filed or deposited with the board before the issuance of the mining permit[.] (Emphasis added).
*773ARSD 74:29:04:01 further provides that any notice to transfer this mining permit “shall include ... [a] replacement surety.” (Emphasis added). ARSD 74:29:04:06 prohibits “release [of] the surety of the first operator until the successor operator submits a replacement surety[.]” Taken together, these provisions contradict the majority’s conclusion that “[s]ince no surety bond was required for mere possession of the permit, no surety bond was required for the mere transfer of possession of the permit.”
The Board should not have released Homestake’s surety bond without either: (a) requiring the posting of a sufficient replacement surety bond; or (b) cancelling the permit. To allow a permit to remain “active” without a surety bond is ad hoc lawmaking without support in the statutes or the regulations. To now allow this un-bonded “permit” to be “transferred” on condition that a replacement bond be filed later compounds the error and further defeats the applicable regulatory scheme.
We should reverse and remand all the way back to the Board of Minerals and Environment with instructions to do this over until it gets it right.