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July 15, 1970
Honorable Bruce A. Wilson
State Senator, 2nd District
P.O. Box 553
Omak, Washington 98841
Cite as: AGLO 1970 No. 101
Dear Senator Wilson:
This is written in response to your letter, previously acknowledged, requesting our opinion as to the applicability of chapter 64, Laws of 1970 (Substitute Senate Bill No. 139) to surface mining activities on lands located within the boundaries of the Colville Indian Reservation.
Chapter 64, Laws of 1970, which, in accordance with the provisions of § 23 thereof, will not become effective until January 1, 1971, is a comprehensive act regulating the extraction of minerals by surface mining in the state of Washington. Among other provisions of the statute, § 16 thereof states that:
"Any operator conducting surface mining within the state of Washington without a valid operating permit shall be guilty of a gross misdemeanor. Each day of operation shall constitute a separate offense." (Emphasis supplied.)
To the extent that your opinion request pertains to the applicability and enforceability of this statutory provision to surface mining activities on deeded, or "fee patent" land situated within the boundaries of the Colville Indian Reservation, it is our opinion that the act is applicable. Accord, the reasoning and conclusion set forth in AGO 1970 No. 11 [[to Bill Kiskaddon, State Representative on June 4, 1970]], copy enclosed, regarding the authority of a county to enact a zoning ordinance covering "fee patent land" on an Indian reservation.
[[Orig. Op. Page 2]] With respect to tribally owned land, in order to give you a definitive answer on this point it will be necessary to have some clarification from you as to the precise status of this land. Specifically, it will be necessary for us to be advised as to whether the land which you have referred to as "tribally owned" is land which remains subject to federal restraints against encumbrance or alienation as provided for in RCW 37.12.060 ‑ a statute which was discussed and relied upon by the Washington court in Snohomish Cy. v. Seattle Disposal Co., 70 Wn.2d 668, 425 P.2d 22 (1967), wherein the court held that state or local land use regulations could not be enforced against those Indian lands which were, thus, subject to such restraints.
Therefore, if you would care to have us pursue this matter further, would you please advise us as to the status of the "tribally owned" lands to which you have referred.1/
Very truly yours,
FOR THE ATTORNEY GENERAL
Philip H. Austin
Assistant Attorney General
*** FOOTNOTES ***
1/If you would care to place us in direct contact with the individual who asked you to request our opinion on this matter, for this information, please feel free to do so.