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Legislative and Regulatory Update

March 2003 by Staff

• Look for less federal government land acquisitions in the new budget
The Fiscal Year 2003 appropriations bill has made it through the House of Representatives and the Senate. While we are still trying to digest all of the information, we will pass on some of the highlights.

The payments-in-lieu of taxes program (PILT) was increased to $210 million from $165 million last year. PILT payments are made to offset lost tax revenues when government agencies acquire lands.

Modest increases were made for fire fighting, endangered species, range management, energy development, and invasive weed control.

The land acquisition budget was reduced to $187.2 million from the original request of $331.5 million. This will at least slow down land-grabs for the fiscal year.

Interior Secretary Gale Norton pointed out that “it doesn’t do a lot of good to acquire new land” when they can’t adequately take care of what they already manage.

The Forest Service released a statement that said, “The agency is shifting its focus from acquiring new land to protecting life, property, and natural resources on (National Forest) land, including fire preparedness and restoration of ecosystems to fire-tolerant conditions, reducing forest management costs, and increasing forest production.”

Endangered species would receive a modest increase of $3.2 million. The administration says the money is needed “to meet litigation-driven workloads.”

• Valley fill ruling overturned
A federal appeals court has overturned a ruling that prohibited the issuance of federal permits to dispose of mining waste in valley fills. The 4th US Circuit Court of Appeals decision said US District Judge Charles Haden’s ruling against the US Army Corps of Engineers was overly broad. The three-judge panel sent the case back to Haden for further review. The court also lifted an injunction Haden issued last year that prohibited the practice.

• Two species rejected for listing under ESA
The federal government rejected listing the green sturgeon as a threatened or endangered species.

“There is no evidence the population is collapsing, the big fish are being fished out, or the size of the stock is declining,” said biologist Craig Wingert.

The Center for Biological Diversity and the Oregon Natural Resources Council had argued that the fish are threatened by logging, agriculture, and mining, among other things.

The agency agreed to categorize green sturgeon as a “candidate species,’’ and continue to consider new information as it comes in, but the Oregon Natural Resources Council said they are likely to file a lawsuit regardless.

The federal government also decided that the California spotted owl, a symbol in the battle over old-growth forests, does not need protection under the Endangered Species Act at this time.

Environmental groups immediately said they will sue to overturn the ruling.

The decision by the US Fish and Wildlife Service relies in part on owl protection plans in the Sierra Nevada Framework—protection plans the US Forest Service says will likely be substantially altered.

“The overall magnitude of current threats to the California spotted owl does not rise to a level requiring federal protection,” the Fish and Wildlife Service concluded after a yearlong review, meeting a court-ordered decision date.

The medium-size brown mottled owl still exists in all or most of its historic range, from the Sierra Nevada and the central coastal range to the mountain ranges of Southern California. About 2,200 nesting sites or territories have been identified in recent surveys, the Fish and Wildlife Service said.

The closely related northern spotted owl, which became a symbol in the fight over logging in the Pacific Northwest a decade ago, already is listed as “threatened” under the act, as is the Mexican spotted owl. The California owl is recognized as a “sensitive” species by the Forest Service, and as a “species of special concern” by the state Department of Fish and Game.

But while some study areas showed population declines, “the service found no clear statistical evidence to show that the California spotted owl is declining throughout its range.”

More logging is needed, said Forest Service spokesman Matt Mathes, because logging allowed under the original framework doesn’t do enough to protect the owl from catastrophic wildfires like the one near several Giant Sequoia National Monument groves that destroyed some owl nesting sites last year.

Noah Greenwald of the Center for Biological Diversity said his organization will sue to overturn the ruling.

• New Mexico and Montana consider legislation to encourage mining
New Mexico is considering legislation that would create mining districts and exempt these areas from some state environmental and reclamation requirements. The measure, sponsored by Senator Ben Altamirano, (D-Silver City), would not require remediation of surface and ground water contamination in the district. The mining districts would be created in areas where mining has traditionally taken place in the state.

The legislation also seeks to allow mining companies to pledge their own corporate guarantee to cover cleanup costs.

Roderick Ventura, staff attorney with the New Mexico Environmental Law Center in Santa Fe, said the bill would effectively gut the state’s existing hard-rock mining law.

“I think the fact that they’re excluding the state environmental laws from these areas is pretty outrageous,’’ he said of the proposed mining districts. “They seem to think that they can excuse themselves from these laws.’’

Richard Peterson, a Phelps Dodge spokesman, said the state should accept assurances from the company that it will not seek to walk away from its reclamation responsibilities in Grant County, where it has three mines.

Under the bill, the state would recognize that mining is the highest and best use of the land in areas that already have been mined, said Peterson.

“Our argument here is that a mine is best suited to be a mine, and let’s not presume that it could become something else someday,” Peterson said.

In Montana, business interests are almost ready to introduce a series of legislative proposals to make it easier to develop natural resources in the state by making it harder to appeal the projects.

“The whole idea is to expedite the process...and eliminate a lot of time delays,” said Don Allen of the Western Environmental Trade Association, an industry group with members in mining, timber, energy and agriculture. “We’re trying to get rid of delays that hold up projects.”

Several of the proposals are in draft form and will be introduced in the next week or so, Allen said.

Environmental groups say the effort is another attempt to blame concerned citizens for the state’s economic failures and allow industry to skirt environmental regulations.

The proposals include these:

• Abolishing state law that automatically stays a project when it’s appealed. Right now, appeal of an air-quality or other permit blocks the project until the appeal is resolved.

• Requiring third parties—usually meaning environmental groups—to pay the attorney fees of the state or the industrial permit-holder if that third party loses an appeal of the permit decision.

• Limiting the types of issues that can be appealed on a permit.

• Creating a “property right” for the permit-holder, giving some constitutional protections to the permit-holder.

• Speeding up administrative appeals in disputes involving state rules on permits.

The proposals are outlined in a memo to Allen last month from Helena attorney Steven Wade.

The memo said the proposals would not change “any established environmental regulatory standard or limit.’’

“They are attempts to ensure the permitting process and corresponding levels of review cannot be abused for the sake of delay,’’ Wade wrote.

Allen said the proposals are the result of industry brainstorming on what needs to be done so legitimate projects that meet state regulations are not hung up by last-minute appeals.

• Mining, lumber groups seek to eliminate funds for university program
Mining, timber and construction groups are asking legislators to cut funding for the University of Montana’s environmental studies program because of the damage it has done to industries and the state’s economy.

“We object to the use of public funds to put businesses out of business,” Ellen Engstedt of the Montana Wood Products Association told the Joint Appropriations Subcommittee on Education.

Angela Janacaro of the Montana Mining Association called the program “insidious.”

The university program is a routine target of criticism by the mining and timber industries, but UM President George Dennison said the call for eliminating its funding came as a surprise.

The committee took no immediate action on the request.

Cary Hegreberg of the Montana Contractors Association provided documents from UM showing that funding for last June’s Global Justice Action Summit in Missoula came from an account within the environmental studies program. Vicki Watson, an environmental studies professor, organized the summit, which was held to protest the G-8 economic summit in Canada.

Janacaro cited a course taught at UM in which environmental studies students helped gather signatures and campaigned for two initiatives that were opposed by her industry.

• Backfilling required for new mines in California
While many other states are taking action to improve economic conditions by increasing natural resource extraction, California is solidifying its anti-mining position. California also has the most severe budget crisis in the nation, with a deficit estimated between $26 and $34 billion.

The California State Mining and Geology Board (SMGB) issued an emergency regulation on December 12 that requires “open-pit surface mining operations for metallic minerals” to be backfilled “to the original surface elevation.” The regulation applies to any mines that did not have a final approval of a reclamation plan in place by December 18, 2002.

The regulation was part of Governor Davis’ plan to block Glamis Gold’s project in southern California, but has the added effect of blocking all new open-pit metal mines in the state because backfilling is not economically feasible in the majority of mining projects.

The Bureau of Land Management (BLM) has already ruled that Glamis’ claims are valid. BLM is now reviewing the Environmental Impact Statement that was done in November 2000. The Clinton administration had denied a permit to Glamis during Clinton’s last few days in office, claiming the project would cause “undue impairment” to Indian lands. The current administration is now looking at possibly approving the project.

Several Congressmen have suggested that the Department of the Interior (DOI) purchase the Glamis claims, but DOI’s Secretary Gale Norton states they don’t even have enough funds to complete an appraisal on the property. Glamis is open to this idea, but the purchase price will continue to rise along with the price of gold.

• Nevada Congressman named vice chairman of Resources
Representative Jim Gibbons (R-Nevada), a long-standing defender of mining, ranching and other commercial users of federal lands, has been named vice chairman of the House Resources Committee.

“Jim has worked tirelessly on the issues before this committee,” Chairman Richard Pombo (R-California), said in announcing the appointment.

Gibbons is a former geologist and a longtime advocate of mine safety and mining rights. He founded the Congressional Mining Caucus and serves as its co-chairman.

“As a native of Nevada, I know firsthand how unnecessary federal regulations and extreme special interest groups, disguised as guardians of the environment, can ruin the livelihoods of ranchers, farmers and miners,” Gibbons said.

• Idaho gets deadline extended for bull trout comments
Idaho Governor Dirk Kempthorne has gained more time to respond to the federal governments’s proposal for designating critical habitat for threatened bull trout populations in the Northwest. The US Fish & Wildlife Service will extend the comment process another 90 days after publishing the extension in the Federal Register.

The habitat proposal does not spell out who would pay for it, and the economic impact statement, required under the Endangered Species Act, has not yet been completed. The proposal is more than 2,000 pages, and addresses 22 separate areas in Idaho, Oregon, and Washington.

“The main reason (for the extension) is the volume of material we need to review,” Kempthorne spokesman Mark Snider said.

“We understand the economic consequences of critical habitat designation is critical to Idaho’s assessment and response,” Kempthorne said. “Idaho will not risk responding to an incomplete document.”

The proposal covers 18,468 miles of streams and 532,721 acres of lakes and reservoirs throughout the Columbia River and Klamath River basins. Bull trout often are found farther up the headwaters of drainages than salmon and steelhead. They prey on other fish and can grow to well over 24 inches.

Environmentalists blame human encroachment, mining, grazing, logging and overharvest during the last 150 years for reducing bull trout to about 45 percent of their native habitat.

• Murkowski Calls for Resource Assessment on State and Federal Lands
Alaska Governor Frank Murkowski said that the federal government should step up efforts to identify mineral wealth on public lands in Alaska. Murkowski made his comments while meeting with representatives of a Presidential commission that guides US research in the Arctic.

“When Congress passed ANILCA in 1980, it required the federal government to assess public lands for mineral and oil and gas potential, including on state lands and in conservation units,” Murkowski said. “That program was never implemented as broadly as Congress intended, and was virtually stopped altogether by the Clinton administration. It’s time to start again.”

The Alaska Minerals Resource Assessment Program, conducted by the Department of the Interior, helped identify major prospects such as the Pogo mine under consideration for development near Delta Junction, according to the US Arctic Research Commission.

A broad program to assess public lands for mineral, oil and gas wealth is one of five key recommendations made by the commission in its biannual report, delivered to Congress and the White House. The commission also calls for new federal research on infrastructure and transportation in the Arctic.

“State agencies will work with the commission, the White House, and the Congress to make these priorities happen,” Murkowski said. “We will also enlist the University of Alaska.”

• Comments needed regarding proposal to lock up huge tracts of public land in California
The California Wilderness Coalition is encouraging its members to write Senator Dianne Feinstein to express support for the California Wild Heritage Act. We use the term “write” loosely, because they have set up an automated email form for their members to use.

Feinstein, so far, has failed to endorse her fellow senator. The California Wild Heritage Act is the brainchild of Senator Barbara Boxer, and it would designate another 2.5 million acres and over 400 miles of rivers and streams off-limits by declaring these areas as wilderness or Wild and Scenic. Please let Senator Feinstein know that we don’t need any more land placed out of reach, and that the best use of our public lands is not to place them off-limits.

Senator Boxer is expected to introduce the Wild Heritage Act in the US Senate within a few months.

Senator Dianne Feinstein
One Post Street
Suite 2450
San Francisco, CA 94104
Phone: 415-393-0707
Fax: 415-393-0710