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Legislative and Regulatory Update

• Important court decisions that affect miners

Ninth Circuit Court Sets
Precedent for Science in
Landmark ESA Case

by the Committee on Resources
US House of Representatives

Washington, DC—A February 24, 2004, ruling by the Ninth Circuit Court of Appeals confirmed a lower court’s decision that scientific contributions to species recovery must be incorporated in Endangered Species Act (ESA) decision making. At issue in this case was how the National Marine Fisheries Service (NMFS) counted Oregon Coast coho salmon in determining the species’ status.

Background: The Pacific Legal Foundation (PLF) filed suit in US District Court charging that NMFS counted only naturally spawned salmon, disregarding hatchery spawned salmon, thereby keeping fish counts artificially low and invoking unnecessary protection under the ESA. District Court Judge Michael Hogan agreed, ruling that the agency acted illegally. As a result, NMFS instituted status reviews of salmon and steelhead listed under the ESA across the Western States. Environmentalists then appealed the case to the Ninth Circuit, which also ruled in favor of PLF. In dismissing the appeal, the court ruled that environmentalists could participate in the public process on status reviews like other citizens and had no basis for suit.

“This could be the best precedent ever set in Endangered Species Act case law,” Resources Committee Chairman Richard W. Pombo (R-CA) said. “By arguing that some fish are somehow superior to other fish, environmentalists have once again revealed their radical beliefs that humans can do no good for species. Given modern science and common sense, this court just reaffirmed that such extreme positions are absurd and can be detrimental to species recovery. To be successful in our stewardship role we have to use all the tools at our disposal, especially advanced science.”

“Hopefully, this case will serve as a catalyst for the use of 21st century science and American ingenuity in species recovery,” Pombo continued. “That’s exactly what we need to do to be successful, and Americans understand that. Endless, frivolous litigation does nothing to save species, but that is the unfortunate state of the ESA today.”

“With the Ninth Circuit’s dismissal of this appeal, the ‘sky is falling’ rhetoric of hard-core environmental activists has been debunked and their true agenda exposed,” said PLF attorney, Russ Brooks. “This attempt to control private land use in the name of species protection has been successfully shut down. Families in the Pacific Northwest are sick of environmental hysterics that have resulted in rising home prices, choking traffic, higher taxes and a slowed economy,” Brooks continued. “Chalk up a win for people with [this] decision.”

According to Brooks, the biggest impact of the decision is the fact that it reinstates the district court’s order invalidating and setting aside the coho listing, which had been postponed during the appeal. Consequently, the Oregon Coast coho listing no longer exists and may not be enforced. This decision stands to have huge implications for land stewards and natural resource providers—such as farmers, ranchers, and timber harvesters—as well as local governments and citizens struggling with infrastructure development of schools, hospitals, and highways.

Following news of the decision, PLF called on NMFS to promptly complete its review of the hatchery policy and salmon and steelhead listings, consistent with the district court and Ninth Circuit decisions. NMFS has missed several deadlines in releasing the new hatchery policy and the results of its status review. 

High Court Backs EPA in Split on Clean Air Case

Washington (AP)—Federal regulators can trump more permissive state officials in some disputes over costly measures to limit air pollution, the Supreme Court said in a ruling that departed from the court’s trend toward granting state governments more power.

The fight was over whether the Red Dog mine in Alaska must use equipment that would reduce emissions from a new diesel generator by 90 percent. The state wanted to allow the mine operator, a major employer in the remote Northwest Arctic, to use equipment that would reduce pollution by 30 percent.

The EPA insisted on a newer “selective catalytic reduction” technology for the new generator. The agency did not require that technology for the mine’s older generators.

The state went to court, and the San Francisco-based 9th US Circuit Court of Appeals sided with the EPA.

Estimates for complying with the ruling were put at an additional $10 million upfront and an additional $1.5 million annually, the state said. (Red Dog could not wait for the disposition of the case and already installed the equipment.)

The victory for environmentalists may be more symbolic than substantive. The portion of the Clean Air Act at issue has not been front and center in court fights over pollution, and the court majority kept its ruling narrow.

The Clean Air Act allows state officials to make some decisions involving facilities within their borders, but still gives the EPA wide authority to enforce the anti-pollution law passed by Congress in 1970.

In this case, Congress gave the EPA power to override unreasonable state decisions, Justice Ruth Bader Ginsburg wrote for the majority.

The case seemed a bigger setback for the cause of state sovereignty, a subject that has produced a series of 5-4 rulings expanding state control at the expense of the federal government, and which has provoked deep disagreement between the high court’s more liberal and conservative wings.

The four justices who dissented in the decision said the ruling undercuts states’ ability to control their own environmental policies and threatens to give the federal government too much muscle in other areas.

“The (Clean Air Act) is not the only statute that relies on a close and equal partnership between federal and state authorities to accomplish congressional objectives,” Justice Anthony M. Kennedy wrote for himself, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.

“Under the majority’s reasoning, these other statutes, too, could be said to confer on federal agencies ultimate decision-making authority, relegating states to the role of mere provinces or political corporations, instead of coequal sovereigns entitled to the same dignity and respect.”

Ginsburg’s usual allies on the court’s ideological left—Justices John Paul Stevens, David H. Souter and Stephen Breyer—joined her in the ruling. The crucial fifth vote came from Justice Sandra Day O’Connor, who usually votes with the court conservatives in states’ rights cases.

Siding with the EPA were several northeastern states affected by air pollution that blows in from elsewhere. Several western and mining states backed Alaska.

The case is Alaska Department of Environmental Conservation v. Environmental Protection Agency, 02-658.

BLM Has Authority
to Prevent Undue
Degradation, Says Judge

In Mineral Policy Center, et al. v. Norton, US District Court Judge Henry Kennedy ruled that the Federal Land Policy and Management Act (FLPMA) does give the Bureau of Land Management the authority to halt mining projects due to “undue degradation.”
William Myers, the former top lawyer for the Interior Department, had previously issued an opinion stating that BLM did not have the authority to stop mining projects due to “undue degradation.”

Judge Kennedy also remanded the case back to a lower court to address the issue of government agencies charging fair market value for roads, pipelines or tailing dumps outside of valid mineral claims. Historically, mining companies have usually been allowed to use government lands for these uses without providing compensation.

Section 3809 rules, revised in 2001, remain intact. However, the above decision could prove costly to many mining operations and further push companies overseas.

National Mining Association president Jack Gerard pointed out “…the court did find that BLMs rules meet the law’s requirements to prevent unnecessary or undue degradation of public lands through implementation of existing laws and regulations.”

• Move to repeal I-137
The Montana Mining Association submitted a proposal to legislative legal staff in an effort to repeal a ban on using cyanide in new open-pit gold and silver mines.

The measure targets Initiative 137, which outlawed cyanide use in new mines when it passed with 52 percent of the vote several years ago.

The mining industry has long argued that it never had a fair chance to fight against the initiative because another law, overturned shortly before the election, prevented corporations from spending money to support or oppose ballot measures.

I-137 halted a project started by Canyon Resources. A petition to get the repeal on the ballot would require a minimum of 5 percent of the votes cast in the 2000 governor’s race. The deadline to gather the signatures is June 28.

Proponents believe the repeal will succeed because Montanans want to revive the mining industry.

Jan Sensibaugh, Department of Environmental Quality director, said the initiative would add restrictions to the law that her agency already imposes on mining companies.

• Comments needed in southern California
The Fish and Wildlife Service announced it is accepting comments regarding the proposed designation of critical habitat for the Santa Ana sucker.

The proposed critical habitat could restrict activities on the lower and middle Santa Ana River in San Bernardino, Riverside, and Orange counties; the East, West, and North Forks of the San Gabriel River in Los Angeles County; and lower Big Tujunga Creek in Los Angeles.

If you are currently mining in these areas, you need to comment on this proposal. Comments will be accepted until April 26, 2004. A request for a public hearing must be made by April 12, 2004.

Comments may be submitted to: Field Supervisor, US Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, California 92009.

Comments may also be submitted by email to: fw1sasu@r1.fws.gov under the subject “Attn: Santa Ana Sucker Critical Habitat”

Comments should focus on the following criteria:

(1) The reasons why any habitat should or should not be determined to be critical habitat, including whether the benefit of designation will outweigh any threats to the species due to designation;

(2) Specific information on the amount and distribution of Santa Ana sucker habitat, and what habitat is essential to the conservation of the species and why;

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat;

(4) Any foreseeable economic or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities;

(5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

The proposal can be viewed online at: www.regulations.gov/freddocs/

For more information, contact Jim Bartel at the Carlsbad Fish and Wildlife Office address listed above; by phone at (760) 431-9440; or by fax at (760) 431-9618. 
© ICMJ's Prospecting and Mining Journal, CMJ Inc.
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