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Legislative and Regulatory Update - June 2000 (Vol. 69, No. 10)
Legislative and Regulatory Update
by Scott Harn

• Forest Service Oversteps Authority, Former Official Says
Washington (AP)—The Forest Service lacks legal authority to implement a sweeping rule that would make forest health the top priority in managing woodlands, the agency's former top legal adviser said May 10.

The Forest Service should revise or scrap the proposed rule, or ask Congress to approve the changes the agency desires, James P. Perry told the Senate Forest and Public Land Management Subcommittee.

Forest Service spokesman Chris Wood expressed "100 percent confidence" the proposed rule is legally sound.

The agency last fall proposed an overhaul of planning regulations that govern all 192 million acres of federal forests. Local foresters use the regulations when deciding whether to allow logging, mining and other activities in forests.

The proposal, one of a dozen or so major rules pending in the final year of President Clinton's term, is a departure from existing regulations because they place "ecological sustainability"—the need to protect healthy ecosystems in forests—above all other needs.

Existing regulations, which have gone unrevised since 1982, place forest ecology on the same level as logging, recreation and other forest uses.

Perry said "ecological sustainability is a vague and subjective term that will result in widespread inconsistencies in forest management. He said the rule also runs up against federal laws that say forests should be open to many different uses.

"Accordingly, the Forest Service must either substantially revise the proposed rule or return to the drawing boards," he said.

Perry headed the office that provided legal counsel to the Forest Service from 1989 until he retired in 1998. He advised five Forest Service chiefs during a 32-year career, including current chief Mike Dombeck.

Sen. Larry Craig (R-Idaho), the subcommittee chairman, said Perry's testimony supports what committee Republicans have been saying for months.

"To move as sweepingly as they want to move, they have to come to the Congress—they simply can't.do it through rule-making," he said.

Craig said he may propose legislation that would prevent the Forest Service from enacting the planning rule administratively.

Wood said the agency never would have pursued the rule if it was not certain the plan was legally sound.

• Glamis Gold Ltd. Files Suit to Vacate Solicitor's Opinion
The California Mining Association issued a statement praising Glamis Gold Ltd. for their decision to file suit to vacate the US Department of Interior Solicitor's Opinion titled "Regulation of Hard-rock Mining."

"We commend Glamis for taking this step," stated Denise Jones, Executive Director of the CMA. "The Leshy directive effectively overturns existing regulations and Congressional mandates threatening not only Glamis and other mining projects, but all development in the California Desert Conservation Area (CDCA).

The current permitting structure has served the BLM and California effectively. The BLM's regulations, coupled with California's stringent requirements have ensured that the mines developed in the CDCA are environmentally responsible.

"California's mining industry operates under the strictest environmental laws in the country," Jones stressed, "and Glamis Gold has a proven track record of successful mining, mitigation and reclamation in California."

The suit arises from the December 27, 1999 Opinion issued by the Solicitor of the Department of the Interior, John Leshy. The Leshy Opinion concludes that the BLM has the discretionary authority to deny Glamis' Imperial Project Plan of Operations due to alleged impacts on historic, cultural or religious values of the Quechan Tribe of Indians.

To reach this conclusion, Leshy effectively ignored the Mining Law of 1872 and the Federal Land Policy and Management Act (FLPMA) by granting the BLM discretionary veto power over the development of unpatented mining claims on public lands. This conclusion is based on Leshy's new interpretation of the Act, which resulted in new standards applicable to mining.

First, Leshy redefined the "unnecessary or undue degradation" standard in FLPMA, concluding that the BLM can find that a project will "unduly" degrade resources and should therefore be denied, even if the action is technically "necessary." This novel interpretation is contrary to the definition found in the BLM's current 3809 regulations, which Leshy disregards as only defining half of the legislative standard. In reaching these conclusions, Leshy is attempting to rewrite the existing 3809 regulations outside the current rule-making and legislative process.

Second, Solicitor Leshy determined that a new "undue impairment" standard must be applied to projects within the CDCA and that this standard is "distinct from and stronger than" the unnecessary or undue degradation standard otherwise applied to mining development on public lands. Incredibly, this conclusion is reached without regard to the long history of mine permitting within the CDCA. By Glamis' count, there have been 15 plans of operation approved at 9 mines within the CDCA during the past 20 years, and in all cases the regular "unnecessary or undue degradation" standard has been applied. Again, Leshy is attempting to change the regulation of mining on public lands through a legal opinion rather than proper legislative or administrative means.

Finally, Mr. Leshy also concluded that the BLM has special authority to manage Native American "Sacred Sites" pursuant to Executive Order No. 13007 (May 24, 1996), which directs that land managers "shall, to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, (1) accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites."

The Solicitor's reliance on this Order ignores that granting the BLM discretionary veto authority over mining is not "permitted by law." More importantly, the Opinion ignores the strong factual dispute in the Glamis case as to whether there is any "ceremonial" or other use of the Imperial Project site by "Indian religious practitioners." The BLM itself concluded in 1987 in the Indian Pass ACEC Management Plan, Section III, that there is "no evidence" that this area "is used today by contemporary Native Americans."

The primary Quechan complaint has been that building a mine in this area would destroy the "setting, feeling and association" of the entire area, impeding on the "viewsheds and vistas," such that the mine would interfere with the Indians' ability to enjoy their spiritual and religious practices. In response to Glamis' contention that there is no current or recent use of these lands, the Quechan have argued, and the BLM has accepted, that they are in the process of "re-establishing" their historic religious and spiritual practices and development of the mine would impede this effort.

• Babbitt Targets White Vulcan Mine and San Francisco Peaks in Arizona
The Arizona Republic reports that Babbitt is putting all of his weight behind an effort to close the White Vulcan Mine and 70,000 acres of the San Francisco Peaks in Arizona. Babbitt said he would demand once again that Congress change the 1872 mining law.

If that doesn't work, Babbitt said he would be poised for "a major political fight" to give the Interior Department imminent domain over the San Francisco Peaks in order "to terminate this sacrilege in the courts of our land."

The Sierra Club has joined Babbitt, and enlisted the support of Indian tribes in northern Arizona.

"We've talked land trades with the Forest Service for the last decade, but those talks have never gone anywhere," said Ed Morgan, manager of the White Vulcan Mine.

Morgan said Babbitt would be opening a "huge can of worms" with mining interests throughout the country if the federal government tries to claim imminent domain over the mine.

Allen Jones, a Navajo tribal member from the community of Leupp and heavy equipment operator at the mine stated, "A lot of those Native Americans haven't worked a day in their life. They are all so concerned about the sanctity of the land, but they wouldn't hesitate to put us in the unemployment line. Are they going to come up with a decent-paying job for us if the mine closes? Yeah, right."

Jones pointed to the summit of Mount Humphreys and said, "They keep saying 'Save the Peaks.' That's like 20 miles from here. We're not tearing down the mountain. We're not even in the mountains."

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