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Legislative Update - August 1999 (Vol. 68, No. 12)
Legislative Update
by Robert Sanregret
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Summary

1. House Resources Committee Holds Oversight Hearing on ESA Problems and Delays. Congressional hearing in California examines delays, costs, "bad science" and ESA manipulations on land development and land use projects, particularly involving the Fish and Wildlife Service.

2. Congressional Bill Would Bar Proposed IMF Gold Sale. H.R. 1203 would block the proposed IMF gold sale unless sale proceeds are returned to the U.S. and to the other donor nations.

3. Partial Relief Offered on Restrictive Interpretation of Mill-Site Law. Secretary Babbitt has offered a partial conciliation, agreeing that mill site acreage limitations will not apply to existing valid plans of operation. Congress, however, says it is insufficient, and the entire "Solicitor's Opinion" on mill sites may be voided.

4. Draft of USFS Planning Regs Replace Multiple-Use with "Ecological Sustainability."  Replacing "Multiple Use" with this vague new subjective USFS standard is unacceptable to Western Congressmen.

5. Hidden Law—The USFS is Required to Help Prospectors and Miners. The Forest Service Manual specifically provides that US Forest Service Officers should provide bona fide prospectors reasonable use permits and operating plan provisions.

Comments

1. House Resources Committee Holds Oversight Hearing on ESA Problems and Delays. A well-attended hearing of the House Committee on Resources was held in Hemet, California, focusing on Congressional Oversight, investigation of the misuse of power, and the failure of the Fish and Wildlife Service (FWS) to comply with a number of Federal laws, including the Administrative Procedures Act, the Freedom of Information Act (FOIA), and the Endangered Species Act (ESA). The hearing was particularly concerned with the misuse of the ESA in determinations of "Critical Habitat" and "Mitigation. "

The primary target of these inquiries and investigations was the Carlsbad Field Office of the FWS in California. The FWS is an agency of the Department of the Interior, under Secretary Bruce Babbit. Prior to the hearing, Committee Chairman Don Young (R-Alaska) said that the Carlsbad FWS office has been the subject of numerous complaints from members of Congress, from local governments, and from the general public, and that the office has given inconsistent and unclear directions on meeting the requirements of the ESA. Chairman Young went on to say:

"The result has been long delays in important public and private projects and skyrocketing costs of mitigation. It has been alleged that the Carlsbad office regularly uses this questionable tactic to completely stop all development."

The committee hearing was chaired by Rep. Richard Pombo (R-CA/Stockton), who is from Central California, and is very familiar with the subject matter of the inquiry. Other Congressional Reps. present were: Helen Chenoweth (R-ID), Resources Committee member and a Subcommittee Chairman; Ken Calvert (R-CA/Riverside), Committee member; Mary Bono (R-CA/Palm Springs), not a Committee member, but the "host" Rep., since Hemet is in her 41st District; Duncan Hunter (R-CA/Imperial and Eastern San Diego Counties) and Gary Miller (R-CA/Diamond Bar), not Committee members, but from nearby affected areas.

Several of the more notable witnesses at the hearing were: Attorney Hugh Hewitt, writer and television personality; Doug Evans, City Manager of Palm Springs; Riverside County Supervisor Tom Tavaglione; Don Fife, geologist and representative of the National Association of Mining Districts; Mike Spear of the FWS (accompanied by two attorneys from the Department of the Interior in Washington,D.C.); several environmentalists who supported stopping development; and various local business and property owners who have been attempting to obtain permits to use their land, but who have been prevented from doing so by the Carlsbad FWS office.

In addition to this Congressional Oversight Hearing on the FWS, Chairman Don Young and Rep. Ken Calvert have requested that the non-partisan General Accounting Office (GAO) conduct an audit and full review of the FWS Field Office in Carlsbad, California.

More later, after the Resources Committee hearing testimony is analyzed, and after the scope of any GAO audit is determined.

2. Congressional Bill Would Bar Proposed IMF Gold Sale. Representative Jim Saxton (R-NJ), along with cosponsors Mary Bono (R-CA), Brian Bilbray (R-CA), Phil English (R-PA) and John Sununu (R-NH) have introduced H.R. 1203 to block the proposed sale of 10 million troy ounces of gold by the International Monetary Fund (IMF), unless the proceeds are returned to the U.S. and to the other IMF donor nations.

The ostensible purpose of the proposed IMF gold sale is to help some 41 "heavily indebted poor countries" by providing debt relief. Recent testimony, however, before the House Banking and Financial Services Committee indicated that the IMF gold sale would actually be detrimental to these countries that it is supposed to help. Since the announcements of the IMF gold sale and other large proposed gold sales by Britain, by Switzerland and by other countries, the price of gold has dropped to 20-year lows. This has already caused mines to shut down and eliminated many high-wage jobs in the U.S. and throughout the world. The low gold price particularly hurts many of the 41 "Poor Countries," whose economies rely heavily on gold mining and gold exports.

A group calling themselves the "Gold Anti-Trust Action Committee" (GATA) has hired the law firm of Berger & Montague to investigate charges of worldwide manipulation of the gold market. This law firm is well-known for its successes in recovering many billions of dollars in high-profile cases, including the Drexel/Milken junk bond case, the Exxon Valdez case, Holocaust cases and recent tobacco cases. GATA and their attorneys are now investigating allegations that certain financial entities have been manipulating the world gold market and the gold price through gold sales, gold loans and other devices. GATA has had discussions with Rep. Jim Saxton, and with many others, on the IMF gold sale, and on the matter of gold price manipulation.

Relative to proposed IMF gold sales, the National Mining Association (NMA) stated:

"The IMF should abandon the ill-conceived quest for gold sales, and should focus on more realistic, more productive and less harmful alternatives."

3. Partial Relief Offered on Restrictive Interpretation of Mill Site Law.  Interior Department Solicitor John Leshy rendered his "Solicitor's Opinion" in November 1997 that a lode mining claimant is limited to only one 5-acre mill site for each lode claim and that mining operators are prohibited from the accepted practice of storing tailings and waste on neighboring lode claims. In June,1999, H.R.1141, a rider to the 1999 Emergency Appropriations Bill, prohibited implementation of this restrictive new policy until about November 30; and the new disputed limited exemption was scheduled to be included in the Fiscal Year 2000 Interior Appropriations Bill.

On June 15, the Senate Committee on Energy and Natural Resources considered the new mill site restriction and exempted existing valid plans of operation. Interior Secretary Babbitt and Solicitor Leshy agreed with the Committee that the new restrictions would not apply to valid plans of operation on existing valid claims—but that the restrictions would apply fully to new exploration, to new discoveries, and to any expansion of an existing operation. At issue was the interpretation of the clause in the 1872 Mining Law (title 30,§42) relative to the size and number of mill sites, and whether there is a limit on the number of mill sites held or patented by a claimholder.

Leshy's response to the Senate Committee was that operators could obtain additional land for waste disposal by exchanges or by use permits under the Federal Land Policy and Management Act of 1976 (FLPMA); but Leshy's responses were criticized as being insufficient, and not going far enough.

Senator Harry Reid (D-NV) declared the concession by Babbitt and Leshy to be a "partial victory" for mine operators, despite the fact that the restrictions probably could not be applied to existing plans anyway.

Senators Larry Craig (R-ID) and Conrad Burns (R-MT) disagreed with Reid that this minor point was any kind of a "victory."  It was only a Pyrrhic victory of no significance because the proposed new mill site restrictions were much too restrictive, and would seriously hurt most existing mining operations.

Because of the efforts of Senators Craig and Burns, at press time it looks very much as though Babbitt's proposed new restrictive mill site policy, and Leshy's "Solicitor's Opinion," will be voided completely. Stay tuned...

4. Draft of USFS Planning Regs Replace Multiple-Use with "Ecological Sustainability."  In a June meeting in Denver, the USFS laid out its new "Preliminary Draft Planning Rule," with the formal proposed regulations to be completed in August. The USFS "Committee of USFS Scientists" recommended the Draft's strong emphasis on "Ecological Sustainability." This means that the first priority of the USFS will be the protection of the forest as recommended by the "Scientists"; and then, only after the ecological sustainability is "assured," will consumptive uses even be considered—such as logging, ranching, mining and recreation. The draft regulations would also reduce the current analysis period from the present 15 years to two-year projections of specific uses that would be analyzed by the agency on an ongoing basis.

This USFS Preliminary Draft states in part:

"The most fundamental goal of the National Forest System is to maintain and restore ecological sustainability, the long-term maintenance of the diversity of native plant and animal communities, and the productive capacity of ecological systems."

Members of Congress from the Western U.S. have expressed opposition to this vague new subjective USFS standard, and strongly object to the proposed nebulous concept of "Ecological Sustainability" replacing the currently accepted doctrine of Multiple-Use in our National Forests.

In July, Senator Larry Craig (R-ID), Chairman of the Senate Subcommittee on Forests and Public Land Management, introduced the Forest Management Act, which will redefine and clarify the function of the USFS and the management of the National Forests. Senator Craig's new bill is similar to one that he introduced in the last Congressional Session, but which went nowhere because of a virtually assured veto by the President.

5. Hidden Law—The USFS is Required to Help Prospectors and Miners.The Forest Service Manual specifically provides in Section 2814.24 that:

"Forest Officers should provide bona fide prospectors reasonable...special-use permits and operating plan provisions in order that they may carry out necessary mineral associated activities without violation of laws or regulations." (U.S. Forest Service Manual, §2814.24)

Further, the applicable USFS regulations provide that:

"Nothing in 36 CFR §261 shall preclude activities as authorized by...the U.S. Mining Laws Act of 1872, as amended." (36CFR261.1(b)

The above specific USFS promulgations are in addition to the specific provision of Section 21a of the U.S. Mining Laws of 1872, as amended and enacted in 1970, and signed by President Nixon. Section 21 a provides as follows:

"The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic-development of domestic mineral resources..."(Title 30 U.S. code §21a)

Conclusion

As the year end approaches, the Year 2000 appropriations process, and the required appropriations bills will be receiving most of the attention. However, as we have seen—many, if not most, matters of concern regarding mining law and regulation are included in these bills, and as amendments or "riders" to same. For example, the "Emergency 1999 Appropriations Bill" contained moratoriums on both the restrictive millsite limitations and on the issuance of Secretary Babbitt's Final BLM 3809 Regulations.

There are two 800-pound gorillas sitting on the porch waiting to be invited into the parlor. These are, of course, the 1992 Biodiversity Treaty and the 1997 Kyoto Protocol (The "Global Warming Treaty"), both of which must be ratified by two-thirds of the Senate to become law. As we have seen, however, the Administration (i.e., President Clinton, V.P. Al Gore, Interior Secretary Bruce Babbitt, Interior Solicitor John Leshy, etc.) continues to implement and enforce the restrictive schedules and compliance programs in these two unratified treaties despite the lack of Senate ratification as required by Article II, Section 2 of the Constitution. This unauthorized implementation is being accomplished through various devices, including "Regulatory Interpretation," "Policy Memoranda," "Instruction Memoranda," refusal to obey laws (such as refusal to issue mineral patents), and statutory misinterpretations (as unsuccessfully attempted by Solicitor Leshy with the mill-site restrictions discussed above).

The Mining Law remains under continued" assault by the Administration, particularly by the Babbitt/Leshy team through such devices as: "Excess Reserves" restrictions on mining claim validity; "Common Varieties" interpretations; "Revised BLM 3809 Regulations"; the restrictive mill site statutory interpretation; ESA "Critical Habitat" determinations; ESA "Mitigation" determinations and so forth.

Members of Congress, particularly members of the relevant committees, should be kept aware of the facts, our views, and the effects of various proposed Congressional bills and agency actions. Stay alert, and see to it that your Members of Congress also stay alert. Eternal Vigilance is the Price of Freedom!

Your views should be expressed to your members of Congress (send copies to their local offices), to the Chairman and members of pertinent Congressional Committees, and to your State and local officials.

The addresses and telephone numbers of all members of Congress are:

Senator      (fill in the blank)       
U.S. Senate
Washington, D.C. 20510
(202) 224-3121

Representative       (fill in the blank)      
U.S. House of Representatives
Washington, D.C. 20515
(202) 224-3121

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