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Legislative and Regulatory Update - December 2000 (Vol. 70, No. 4)
Legislative and Regulatory Update
by Scott Harn
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• A parting shot from the Clinton Administration
Miners and timber harvesters are being dealt a parting shot by the Clinton Administration. There are two items of concern, both coming by way of the Forest Service.

The first one is the new "rule" announced by the Forest Service. The policy change requires that managers overseeing 192 million acres of forests put ecosystem health above all other concerns. The Forest Service previously required that its managers, when developing a forest management plan, give equal weight to ecosystem health and other forest priorities such as logging and public access.

The new rule states, " ... construction and reconstruction of roads considered reasonable and necessary for energy or mineral development on existing leases would ... be allowed for access to fulfill the terms of the lease. However, an emphasis on ecosystem health under the Proposed Action could reduce the lands available for lease in the future... Implementation of the Proposed Action could also reduce the opportunity for exploration and development of presently undiscovered leasable mineral resources in these areas."

Forest Service Chief, Mike Dombeck, stated, " ... it is my determination that adoption of the preferred alternative does not constitute a major Federal action significantly affecting the quality of the human environment. Therefore, an EIS (Environmental Impact Statement) is unnecessary."

The decision to forego an EIS undoubtedly leaves the door wide open to lawsuits. Adena Cook, public lands director for the BlueRibbon Coalition, is already discussing the possibility of a legal challenge.

The second item of concern deals with the Roadless Initiative. The Forest Service has released their Preferred Alternative 3, which recommends designating 19,970,000 acres as "roadless."  An additional 4,212,000 acres are recommended to be "wilderness" and "roadless," bringing the total to 24,182,000 acres.

All western states will be severely impacted. States losing the most area to the roadless plan include Alaska (7,302,000 acres), Idaho (3,669,000 acres), California (1,928,000 acres), Montana (2,170,000 acres), New Mexico (1,156,000 acres), Colorado (837,000 acres), Oregon (689,000 acres), Utah (446,000 acres), and Arizona (416,000 acres).

Clinton is expected to give his final approval after a 30-day waiting period expires December 18, 2000.

Within the Roadless Initiative EIS is the following statement pertaining to mineral withdrawal-—"The potential impacts to roadless values from mining activities can be severe in localized areas, but are not believed to be significant and widespread on a national level."

"Exploration and development of salable mineral resources are subject to agency discretion. Access to these resources could be reduced by applying the Proposed Action as compared to the No Action Alternative. The effect could be an increase in the cost of these resources to local communities because they would have to be obtained from other, more distant sources."

Additionally, the Forest Service expanded the plan to cover the Tongass National Forest over the objections of most Alaskans. Jack Phelps, of the Alaska Forest Association, said the decision could put a number of the area's sawmills out of business.

"There is absolutely no justification scientifically, economically or ecologically for any further roadless withdrawals in southeast Alaska," he said.

The original plan exempted 8.5 million acres (3.4 million hectares) of roadless areas in Alaska's Tongass National Forest-the nation's largest national forest-because Tongass is already covered under a separate forest plan completed in 1999.

Rep. Don Young, R-Alaska, said the move will destroy local economies,

"This administration has devastated the economy of southeast Alaska, and this new decision will make the situation even worse," he said.

On the Internet:

Roadless Initiative:
http://roadless.fs.fed.us

Ecosystem Health Rule:
www.fs.fed.us/forum/nepa/rule/

Blue Ribbon Coalition:
www.sharetrails.org


• 43 CFR-3809
The House approved the Fiscal Year 2001 Interior Appropriations bill (H.R. 4578). The good news is they kept last year's language pertaining to section 3809. Although the bill allows the BLM to make changes, additions or deletions from section 3809 rules, it states that the BLM shall follow the outline and provisions detailed in the National Research Council (NRC) report entitled "Hardrock Mining on Federal Lands."

A report that accompanied the legislation stated, "The statutory requirement was based on a consensus reached among Committee members and the Administration. On December 8, 1999, the Interior Solicitor wrote an opinion concluding that this requirement applies only to a few lines of the Report, and that it imposes no significant restrictions on the Bureau's rulemaking authority. The Committee does not agree with the Solicitor's opinion, and does not intend the language in this section to constitute any ratification of or agreement with that opinion." The legislation was signed on October 11, 2000.

BLM's Environmental Impact Statement (EIS) regarding 43 CFR-3809 Final Surface Management Regulations for Locatable Mineral Operations has been released, and their preferred Alternative 3 obviously ignores the comments submitted to them during the open comment period.

NRC commented that it favors BLM retaining the distinction for casual use operations and that it believes BLM is properly regulating small suction dredging operations under the current regulations as casual use. However, BLM published the following wording in Alternative 3, their preferred alternative: "Suction dredge operators may be required to contact BLM to determine if the proposed activity may proceed as casual use, or if a Notice or Plan of Operations will be required." The preferred Alternative 3 goes on to say, "Regulations would specify that small suction dredges could be casual use." The phrase "could be" is ambiguous at best.

BLM also recommends changing the definition of unnecessary or undue degradation. The definition has been changed in their final proposed regulations to include: " ... conditions, activities, or practices that cause substantial scientific, cultural, or environmental resources that cannot be effectively mitigated."

A huge burden would be placed on small miners in terms of bonding—the preferred Alternative 3 recommends "actual-cost bonding required for all Notices and Plans."

I would encourage you to visit www.blm.gov and view the entire document if you didn't receive a copy by mail. The document includes over 500 pages of comments, which are overwhelmingly in favor of no changes to 43 CFR-3809.


• Clinton signs Steens Mountain
Washington, DC (AP)-President Clinton signed two bills that were among the top priorities of Oregon lawmakers this year—measures to fund rural schools and protect an area of southeastern Oregon known as Steens Mountain.

The Steens Mountain bill creates 175,000 acres of wilderness, with grazing banned on 100,000 acres of that wilderness. Mining and geothermal development—drilling into the earth to harness heat for energy—will be banned on about 1.2 million acres.

The legislation also trades nearly 18,000 acres of private land for 100,000 acres of government land to eliminate the checkerboard pattern of private and public ownership and to ensure that the higher-elevation land now owned by ranchers is protected. Ranchers will get nearly $5.2 million of federal money for lost productivity and disruption to their operations.

"Today symbolized what Oregonians can do when they work together to solve a problem," said Rep. Greg Walden, R-Ore.

Walden, DeFazio and Reps. Darlene Hooley and Earl Blumenauer, both D-Ore., along with Sens. Ron Wyden, D-Ore., and Gordon Smith, R-Ore., stood behind President Clinton in the Oval Office as he signed both bills.

Interior Secretary Bruce Babbitt and Interior Department Solicitor John Leshy also attended the signing ceremony.


• Report denounces EPAs basin cleanup
Boise, ID (AP)-In another attack on the Environmental Protection Agency, U.S. Rep. Helen Chenoweth-Hage released a report characterizing the agency's actions in the Coeur d'Alene Basin as ''haphazard, negligent and dangerous."

The 60-page critique—with chapter titles ranging from "The Emperor Has No Clothes" to "Stick a Big Needle in Their Arm"—levels charges at the agency including burying toxic materials, illegally seizing private property, hurting economies and wasting millions of dollars.

Part of the investigation provides a blow-by-blow account of the Silver Valley's history. It begins in 1941, when a telegram was sent from Washington, D.C., instructing mine managers to keep operations running 24 hours a day to augment the nation's war effort. As a result, the representative holds the government partially responsible for subsequent pollution problems in northern Idaho.

The report continues with specifics about the state's lawsuit against the owners of the Bunker Hill smelter before it closed and the legal fights which ultimately led to a 21-square-mile area in the valley being turned into a Superfund site—a large-scale environmental cleanup overseen by the federal government—in 1983.

An EPA representative said he had not read the whole report and was thus unable to comment.

"We're still looking at it. We welcome anyone to comment or look into what we do," Mark MacIntyre, in the agency's Region 10 office in Seattle, said.

In what Chenoweth-Hage calls "the ultimate EPA employee retirement plan," she wrote that the agency is pushing for a second, 30-year cleanup for the whole Coeur d'Alene Basin estimated to cost between $500 million and $3.8 billion.

A lawsuit filed by the Coeur d'Alene Tribe and the U.S. Justice Department against mining companies seeks about $1 billion for cleanup. But settlement talks have not yet concluded. The state of Idaho has announced a settlement offer of $250 million, mostly funded by Hecla Mining Co., Asarco Inc. and Coeur d'Alene Mines Corp.

The outgoing representative believes the agency has failed to demonstrate a correlation between soil lead levels and children's blood lead levels in northern Idaho. She also said there is insufficient evidence of contamination to warrant a large-scale cleanup.

As an explanation for pollution, Chenoweth-Hage cites "other factors such as lead paint and automobile emissions the more likely cause."

Among her recommendations, the representative suggests that the agency halt all Superfund expansions in the Coeur d'Alene Basin.


• Group sues to reverse Sequoia National Monument designation
Fresno, CA (AP)-Logging interests and recreational groups sued to eliminate the Sequoia National Monument, contending President Clinton exceeded his authority when he acted unilaterally to protect ancient groves of the giant trees.

A lawsuit filed in U.S. District Court in Washington argued Clinton's action, taken under the 1906 Antiquities Act, did not meet the requirements of the law.

One of the plaintiffs, Sierra Forest Products, has closed one of two lumber mills in the area, laying off more than 100 workers.

"We were basically cruising along with ample supplies, but when you have half your timber supplies wiped out by the national monument there's not enough timber to keep both operations running," said Kent Duysen, the logging operation's president.

"It's overkill," said plaintiff attorney Gary Stevens. "The monument proclamation is laced with general references to artifacts or unidentified archaeological sites to justify it. We believe none of those generalized references pass the test."

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