AGO 80-121.

• Case Date: March 18, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-121. March 18, 1980 (OPINION) OPINION 80-121Mr. John E. JacobsonMercer County States Attorney Mercer County Courthouse Stanton, ND 58571 Dear Mr. Jacobson: This is in response to your letter dated January 16, 1980, wherein you state the following:

As you may know, Mercer County presently has three active coal mines. Only one of these coal mines has a tipple within fifteen miles of a non-coal-producing county. We therefore request your opinion on the following question:

Does subsection 3 of section 57-62-02 of the North Dakota Century Code require a county with more than one active coal mine to distribute a portion of the severance tax received by that county from all the mines to an adjoining county, school district and city when the adjoining county, school district and city are within fifteen miles of the tipple of only one of the active coal mines; or should the adjoining county, school district and city receive a portion of the severance tax from only the coal mined at the one mine whose tipple is within fifteen miles of that county, school district or city?

From my reading of this section, it appears that the coal mines should be divided into two categories, as listed under subdivisions a and b of under subsection 3 in section 57-62-02. The divisions of the coal mines within the counties are those who have a tipple within fifteen miles of another county in which no coal is mined and those which do not have any tipple of a currently active coal mine within fifteen miles of a non-coal-producing county. I would imagine that this was the intention of the Legislature since if the non-coal-producing county was entitled to a share of the severance tax from all the mines in the county it would lead to a very unfair situation.

In Mercer County, the tipple of the Consolidated Coal Mine near Stanton, North Dakota, would be approximately fifty miles from the non-coal-producing county of Dunn.

Section 57-62-02 of the North Dakota Century Code provides for the allocation of moneys deposited in the coal development fund established by section 57-61-10 of the North Dakota Century Code. Section 57-61-10 provides:

57-61-10. COAL DEVELOPMENT FUND ESTABLISHED. Moneys collected by the state tax commissioner pursuant to the provisions of sections 57-61-01 through 57-61-09 shall be paid to the state treasurer and shall be credited to a special fund in the state treasury, to be known as the coal development fund. The moneys accumulated in such fund shall be allocated as provided by law and as appropriated by the legislative assembly. (Emphasis added).

The moneys referred to in section 57-61-10 are collected by the state tax commissioner as a result of the severance tax imposed upon coal by section 57-61-01. Section 57-61-01 provides:

57-61-01. SEVERANCE TAX UPON COAL - IMPOSITION - COMPUTATION OF INCREASES - IN LIEU OF SALES AND USE TAXES - PAYMENT TO THE TAX COMMISSIONER. There is hereby imposed upon all coal severed for sale or for industrial purposes by coal mines within the state a tax in an amount to be determined as follows:

1. Eighty-five cents per ton of two thousand pounds 907.18 kilograms!; and

2. For every

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