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Legislative and Regulatory Update - December 2003 (Vol. 73, No. 4)
Legislative and Regulatory Update
by Staff
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• Clean Water Act rule change proposed
The current administration is proposing a rule change that, if adopted, would redefine “waters of the United States” to include only those streams that are considered “traditional navigable waters” and their nearest tributaries.

A copy of an internal draft was leaked to the media, and the Los Angeles Times subsequently published portions of the draft in early November.

The Corps of Engineers declined to confirm the existence of the draft rule published by the Times.

The Environmental Protection Agency and the US Army Corps of Engineers posted an advance notice of proposed rulemaking in the Federal Register on January 15, 2003. The notice sought public comment on what waters should fall under the jurisdiction of the Clean Water Act.

The proposed rulemaking was made following a 2001 US Supreme Court ruling in Solid Waste Agency of Northern Cook County (SWANCC) vs. US Army Corps of Engineers.

SWANCC involved a quarry that filled with water. Migratory birds eventually started using the location as a nesting area. The Corps tried to claim jurisdiction over the newly formed body of water under the Clean Water Act. The Supreme Court ruled that government agencies could not claim jurisdiction over isolated bodies of water simply because the body of water was being used by migratory birds.

The Corps sent out a guidance memo to staff following the ruling, advising staff to abide by the ruling until appropriate changes could be made to government regulations.

A change from “waters of the United States” to “traditional navigable waters” could remove small, intermittent or isolated streams from the jurisdiction of the Corps, and potentially reduce restrictions imposed on miners and prospectors.

We will continue to watch for developments in this area.


• DOJ files motion against Oregon miners
The US Department of Justice (DOJ) filed a motion to dismiss a Waldo Mining District suit against the Siskiyou National Forest (SNF) and the US Department of Commerce.

The DOJ motion, 46 pages in all, cited 69 separate cases, 45 statutes, 28 regulations, along with Federal Register notices and other authorities in the motion to dismiss the case.

The Waldo Mining District filed their suit after being denied the right to intervene in a suit filed against the SNF by the Siskiyou Regional Education Project (SREP). SREP is trying to force the SNF to require a Plan of Operation for all dredging.

The Waldo Mining District realized that the requirement to file a Plan of Operation would put an end to dredging because SNF has failed to approve a single Plan over the past 13 years, so they filed their own lawsuit. Bob and Lesa Barton (Armadillo Mining Shop) joined the Waldo Mining District as plaintiffs.

Tom Kitchar, president of the Waldo Mining District, said DOJ “appears to be trying to burn up our war chest before we actually get to trial.”

The miners have retained noted property rights attorney James Buchal, and have no intention of giving up the fight.

“What we have is an environmental group suing the Forest Service in an attempt to stop suction dredge mining… and an attempt by the Forest Service to deny the suction dredgers any say in court,” said Kitchar.

Fund raising efforts continue on behalf of the miners. Donations can be sent to the Waldo Mining District, P.O. Box 1574, Cave Junction, OR 97523. Donations can also be made in person at the Armadillo Mining Shop, 2041 NW Vine, Grants Pass, OR 97526.


• Off-road access case to be reviewed by Supreme Court
Washington (AP)—Environmental groups suing to keep off-road vehicles off Western lands were dealt a setback as the Supreme Court agreed to consider the government’s argument that the case is invalid.
The court’s decision to hear the case jeopardizes an appeals court ruling favorable to the environmental groups.

“This is the latest step in the administration’s plan to dismantle public lands protections and the protection of America’s most stunning and spectacular landscapes,” said Steve Bloch, attorney for the Southern Utah Wilderness Alliance (SUWA).

The case raises the question of whether the public can sue a department of the federal government for failing to fully implement a congressional mandate.

The Bush administration maintains that an agency’s daily activities, such as managing federal land, cannot be challenged in court.

Solicitor General Theodore Olson told justices in a filing that the law does not allow courts to “entertain challenges to anything and everything that an agency may do, or fail to do, in the conduct of its business.”

The case is expected to go to the justices next spring.

Environmental groups already suffered a setback this year when Interior Secretary Gale Norton struck a deal with Utah Governor Mike Leavitt to discontinue protections for 2.6 million acres of potential wilderness in Utah and more land scattered through the West. Next month, the BLM is scheduled to begin leasing the Utah land for oil and gas drilling.

“They’re coming at it from both sides,” said Earthjustice attorney Jim Angell.

In 1999, SUWA and other environmental groups sued the Interior Department, claiming it had failed to protect five areas containing redrock canyons, and sandstone buttes and plateaus that were being studied for wilderness designation.

The suit said off-road vehicles were damaging the areas, even though Congress had directed the department to protect the wilderness.

The 10th Circuit Court of Appeals ruled the department could be sued for allowing damage to the lands. The 9th US Circuit Court of Appeals in San Francisco came to a similar conclusion in a Montana case.

The Blue Ribbon Coalition, a Western pro-land-use group, and other organizations had also asked the court to reconsider the 10th Circuit ruling, and will likely support the government’s argument.

Paul Turcke, an attorney for the coalition, said the environmentalists’ argument would enable groups to sue the government if they don’t like an agency’s decision, regardless of the rationale behind it.

The case is Norton v. Southern Utah Wilderness Alliance, 03-101.


• Resources Coalition hard at work
Members of the Resources Coalition are continuing to work hard towards improving small-scale mining regulations in Washington State.

Members of the Senate are apparently realizing that mining—small-scale and commercial—provides jobs and contributes significantly to the economy. Several members of the Resources Coalition have been invited to testify before the Senate in early December regarding the state of mining and regulations, along with members of the National Mining Association and Northwest Mining Association.


• Leavitt takes helm of EPA
Washington (AP)—The Senate confirmed Utah Governor Mike Leavitt as head of the Environmental Protection Agency, filling a four-month vacancy with a lopsided vote that did not reflect the efforts by some Democrats to turn his nomination into a referendum on President Bush’s environmental policies.

By a vote of 88-8, senators backed Bush’s choice of the Utah Republican to head the nation’s lead agency for enforcing environmental rules. Leavitt started his new job on November 6th, a day after he resigned as governor. His first task, Leavitt said, will be to earn the trust and confidence of EPA’s 18,000 employees.

“I continue to be very optimistic that I can make a contribution,” he told reporters from Salt Lake City, where he learned about the midmorning vote while working out on exercise equipment at a downtown club. “I accepted Mike Leavitt.this responsibility because I believe the president is committed to substantially more progress on the environment, and doing it in such a way that does not compromise our place in the world competitively.”

The nominee was helped by his three terms as governor, during which he gained a reputation as an affable and competent manager and molded alliances among Senate Democrats who are Westerners or former governors.

Just after the vote, Senator James Jeffords, I-Vermont, who had once tried to delay the confirmation vote, shared a laugh with and, in a congratulatory gesture, twice patted the shoulder of Senator James Inhofe, R-Oklahoma, who chairs the Senate Environment and Public Works Committee.

Despite weeks of Democratic efforts to block or delay the vote, including a boycott of one of Inhofe’s committee meetings, only eight voted against Leavitt. One, Senator Frank Lautenberg of New Jersey, led the charge against the nominee on the Senate floor.

“Despite his commentary about balance and stewardship, Governor Leavitt’s record ... reveals a disturbing tendency to place shortsighted economic gain of regulated industries above protecting the long-term health of the public,” Lautenberg said.

“The last three years have been the darkest hour of our nation’s commitment to environmental protection since EPA was created,” he said. “This White House has repeatedly foisted its penchant for secrecy and cover-up on the Environmental Protection Agency.”

Inhofe said opponents were “misrepresenting the Bush administration’s progress” on the environment and distorting Leavitt’s record. “We desperately need to have this man in this office,” Inhofe said of Leavitt, who was nominated in August to fill the vacancy resulting from Christie Whitman’s departure in late June.

For their efforts to delay the nomination, Jeffords won the EPA’s promise to provide estimated benefits, not just costs, of his legislative plan to cut power plant pollution, which is competing with a Bush proposal.

The vote came after Republicans said they could force the issue to a quick conclusion. Senator Hillary Clinton and three Democratic presidential contenders in the Senate—Joseph Lieberman of Connecticut, John Kerry of Massachusetts and John Edwards of North Carolina—had led the delaying efforts.

Others who voted against Leavitt, all Democrats, were Senators Barbara Boxer, California; Jon Corzine, New Jersey; Mark Dayton, Minnesota; Richard Durbin, Illinois; Jack Reed, Rhode Island; Jay Rockefeller, West Virginia; and Charles Schumer, New York. Four Democrats didn’t vote: Senators Jeff Bingaman of New Mexico, Edwards, Lieberman and Kerry.

Leavitt will be replaced as Utah governor by Republican Lt. Gov. Olene Walker.

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