Legislative and Regulatory Update
October 2004 by Staff• I-147 will be on the ballot
Montana’s Supreme Court denied a request by environmentalists to prevent I-147 from appearing on the state ballot in the upcoming election.
The court said that there wasn’t enough time to address the issue before voting takes place on November 2. Environmentalists will likely try again after the election if the initiative passes.
I-147 seeks to reverse a prohibition on using cyanide in mining operations in Montana that was enacted in 1998. Any new operations planned or started after the ban have been prohibited from using cyanide.
“Based on established precedent and practical considerations, we conclude that no emergency now exists that justifies our intervention in the political process,” the court said.
“We think it’s wonderful that the court is going to allow the thousands of Montanans who signed the petitions to place I-147 on the ballot their right to vote on the initiative in November,” said Tammy Johnson, spokeswoman for the group promoting I-147.
The Montana Environmental Information Center and Lincoln-area landowner Mark Gerlach had argued the case belongs before the Supreme Court because quick action is needed with so little time left before the election.
• Consolidation granted
The Waldo Mining District was granted consolidation with the Siskiyou Regional Education Project’s (SREP) suit against the Siskiyou National Forest (SNF).
SREP had sued SNF in early 2003 in an attempt to force SNF to require plans of operation for dredgers and instream miners, and to force SNF to obtain a biological opinion from National Marine Fisheries Service because of the presence of Coho salmon.
The case is on hold until another suit is settled regarding the possible removal of Coho salmon from the list of Endangered Species. One species has been removed, and the other appears “likely” according to Tom Kitchar, Waldo Mining District president.
• More rivers off-limits to mining
Interior Secretary Gail Norton officially withdrew almost 200 miles of waterways along the Green, Colorado and Dolores rivers in southeastern Utah from the exploration and location of new mining claims.
The designation makes 111,895 acres along 192 miles of river off-limits for 20 years.
The BLM said interest and economic benefits from recreational use along the three rivers has far eclipsed former uranium and placer gold mining uses.
• Valley fills decision appealed
The US Army Corps of Engineers filed a notice of appeal to a federal judge’s recent ruling regarding the use of valley fills for disposal of mining waste.
US District Judge Joseph Goodwin barred the corps in a July 8 order from applying its streamlined permit process to mountaintop removal mining projects that rely on valley fills.
Mountaintop removal is a highly efficient surface mining technique used primarily for the extraction of coal. Rocks and dirt are disposed in nearby valleys, creating a more gently rolling landscape.
Critics of valley fills argue that the process drastically alters wildlife habitat, removes essential watersheds, permanently disrupts waterways, and can result in contamination for nearby water users.
• Forest Service cites dredgers
Dave McCracken, founder of the New 49er’s in Happy Camp, California, provided the following information regarding US Forest Service officers issuing citations to legally operating dredgers on the Salmon River:
On the first of September this year, Terry & Joanne McClure were issued citations for using a 4-inch dredge on their mining claim along the lower Salmon River in Siskiyou County, California. The McClures have a 2004 California suction dredge permit that allows suction dredging on that section of the Salmon River through September 15.
Suction Dredging has been an ongoing mining practice along the Salmon River every season for at least the past 30 years. The activity is approved and regulated by the State of California. Suction dredging is being acknowledged as a “non-significant surface disturbance” by each of the other District Rangers who manage the areas where we operate in the Klamath National Forest. Suction dredging was even classified as a “non-significant impact” by the previous Ranger from the Orleans District, who retired in April of this year. In fact, he approved suction dredging as a “non-significant” activity within the Orleans District for the 2004 dredging season before he retired.
But the new Acting Ranger in Orleans, Joyce Thompson, has since decided that any suction dredging or high-banking activity within her district is “likely to cause significant surface disturbance.” She is prohibiting all dredging or high-banking activity along the lower Salmon River unless the miner submits to a very lengthy process that will take a year or (much) longer to approve.
When issuing the citation, the law officers threatened that if the McClures did not immediately stop dredging and remove all of their dredging equipment from their mining claim, they would be arrested and all their gear (including their vehicle) would be impounded.
This flies in the face of controlling case law by the 9th Circuit (1999, U.S. v. Shumway) that confirmed a mining claim is “property in the fullest sense of the word…” and that the locator of a mining claim “could not be evicted unless their claim was a sham or otherwise invalid…” In Shumway, the 9th Circuit clearly ruled that the Forest Service has a right “to manage surface resources and allow others to use surface resources, though these uses shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto.” “…the Forest Service may regulate use of National Forest lands by holders of unpatented mining claims, but only to the extent that the regulations are reasonable and do not impermissibly encroach on legitimate uses incident to mining…”
Understandably, with the only other option of being thrown in jail and having most of their belongings seized by the federal government, the McClures withdrew from their mining claim. They said that the four federal law officers did not leave until all of their dredging equipment was packed up the hillside (2½ hours for the McClures to do it while the law officers stood by and watched) and packed in their vehicle.
I hope everyone reading this can grasp the seriousness of this; the McClures were forced off their own mining claim under threat of being arrested by the US Forest Service.
• Time extended for roadless comments
The government has extended the comment deadline regarding the proposal to allow states to manage their own roadless areas. The new comment deadline is November 15, 2004.
As reported in our August 2004 issue (“Legislative and Regulatory Update”), the Bush administration intends to replace the January 12, 2001 Roadless Area Conservation Rule that was declared illegal by US District Court Judge Clarence A. Brimmer in July 2003.
The proposed rule would allow governors of the 39 states affected by the old rule to petition the Department of Agriculture to manage their own areas.
Environmentalists recently held a rally in Washington, D.C., to gather support for keeping roadless areas closed and defeating the proposed change to state control of roadless areas. Organizers claimed that more than a million people have sent in comments to try and prevent the change to state control, and that the majority of comments support their position.
Many of the comments are generated by automated web-based email forms, like the one found on the Sierra Club website. Previous government decisions have declared that personalized comments are given more weight that auto-generated forms. Please take the time to review the proposed rule and submit your own comments regarding this proposed rule.
You can visit our website at www.icmj.com and click on the “Proposed Rules, Regulations, Projects” section to review the proposed rule.
Public comment on the proposed rule can be sent to: Content Analysis Team, ATT: Roadless State Petitions, USDA Forest Service, Box 221090, Salt Lake City, UT 84122. Comments can also be submitted by e-mail to email@example.com or faxed to (801) 517-1014.
• Newmont water permit voided
Carson City District Court Judge William Maddox voided a 2002 permit issued to Newmont Mining by the Nevada Division of Environmental Protection, ruling that the permit improperly eased water quality regulations for the Gold Quarry Mine.
“Once the public gets clean water, it has the right to keep it,” Maddox wrote in his decision.
“This is the first time a Nevada court has, in a case involving the state’s regulation of mining, ruled in favor of clean water,” said Nicole Rinke, an attorney for Great Basin Mine Watch.
State officials had said last year that the changes were made to fix technical and legal errors in the original permit, and were not designed to benefit Newmont.
The Forest Service issued an Interim Rule on July 9, 2004, to require a Notice of Intent or Plan for mining activities that cause little or no disturbance to public lands under Forest Service jurisdiction.
As I laid in my Jeep and tried to get some rest, I began to realize how tired I was. I felt like a little kid who walked around Disneyland for 12 hours with his parents.
In the meantime, we will continue our multi-pronged approach to seek regulatory relief at the federal level while supporting those court cases that are built on a strong legal foundation.
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