Legislative and Regulatory Update
June 2012 by Scott Harn• Partial win for miners
In August 2010, Michael Backlund pled guilty to maintaining a residence on Forest Service land in violation of 36 CFR §261.10(b). The case was handled by attorney James Buchal, and Mr. Backlund pled guilty while reserving his right to appeal.
This case involves a newer regulation promulgated by the Forest Service that defines a “residence” as virtually anything—including a tent—and requires authorization in advance.
Buchal stated, “According to the Forest Service, it can enforce this regulation through criminal punishment (6 months in jail and a $5,000 fine), and bypass the entire Part 228 regulatory structure. In particular, according to the Forest Service, any ‘residence’ is deemed significant as a matter of law, and miners can be prosecuted without notice for failure to have an approved plan of operations for any mining operations that involve residing on the claim.”
The District Court ignored the 1872 Mining Law and legal precedence, and disregarded the defendant’s arguments that no significant disturbance of surface resources occurred.
“The court rejected every legal argument I presented,” stated Buchal. “Part 261 declares that it does not apply to activities authorized by the 1872 Mining Law. The District Court ruled, in substance, that the 1872 Mining Law authorizes nothing and any mining residence requires advance approval by the Forest Service. We argued that the Backlunds’ operations did not threaten a significant disturbance to surface resources under the jurisdiction of the Forest Service. The District Court held that we could make no such argument in response to the criminal charges.”
Buchal continued, “Once a miner is charged, the only issue, according to the District Court, is whether a ranger approved the residency; no argument whatsoever is permitted as to whether the ranger’s determination was wrong. That, according to the court, would be an impermissible ‘collateral attack’ on an administrative determination. Under this view of the ‘rule of law,’ miners must (after pursuing time-consuming administrative remedies) immediately sue rangers in federal court for any adverse determination—and even then, the Forest Service would retain the discretion to put them in jail for continued occupancy while the civil suit was pending.”
“The Backlunds offer an ideal test case to evaluate the lawfulness of the Forest Service’s drive to criminalize mining residency. They operated a clean camp, and were even lauded by the Forest Service for their efforts in cleaning up debris from prior claimholders. There were no associated charges of environmental violations—the sole charge was residing on the claim without approval. The stream on which they were mining is not even a fish-bearing stream according to Forest Service records.”
Here is the latest update from attorney James Buchal:
I am pleased to report that the Ninth Circuit has reversed the criminal conviction of Michael Backlund for residing on his claim. Mr. Backlund is, as far as I know, the only criminally-charged miner who succeeded in reversing his conviction on appeal.
I am sorry to say, however, that the Court reversed his conviction on the narrowest possible grounds. Specifically, the conviction was reversed because we should have been able to argue at trial that the Ranger’s prohibition of year-round occupancy was not lawful. This was only possible because Mr. Backlund had filed administrative appeals of the initial ranger determination. The case now presumably goes back to District Court, where the United States may or may not seek to hold a trial on that issue.
The opinion simply refuses to respond in any way to many of the significant arguments we made for a broader victory, and creates precedent in favor of the Forest Service’s position that advance approval of residency on a claim is always required.
• California suction dredging
The lawsuits filed against the State of California over the current suction gold dredging ban continue to move, albeit slowly, through the courts. A hearing is scheduled for May 31 in San Bernardino Superior Court to address the two California bills, SB 670 and AB 120, that temporarily halted suction dredging, and to address the new regulations put forth by the Department of Fish & Game.
Public Lands for the People is seeking an injunction to force a return to the 1994 dredging regulations until the court can address all of the issues. The Center for Biological Diversity has filed motions to get the case moved from San Bernardino Superior Court to Alameda Superior Court where Judge Roesch has given them favorable rulings in the past. If the transfer is approved, PLP will seek to have the judge recused.
• Feds continue to push for more public lands
It’s no secret that environmental groups set much of the agenda in Congress. They have shaped much of the discussion through continued lobbying and financial contributions to politicians, along with effective public campaigns. Now the US Senate has included an additional $1.4 billion of taxpayer money for the Land and Water Conservation Fund in their recent Highway Bill to purchase private land and put it under government control. This additional funding threatens to place millions of acres of additional lands off-limits to miners and other public land users.
There is no such funding included in the House version of the bill.
The bill was moved on to the House-Senate Conference Committee at our press time. Because time was crucial, we made this information available on our website and included it with our online newsletter so miners and prospectors could contact legislators to put a stop to it. We highly recommend you check our website—www.icmj.com—between issues so you can stay informed.
• Idaho suction dredging
Suction gold dredging permits for Idaho are handled by EPA Region 10.
On May 1, EPA released proposed regulations for suction dredges with nozzle sizes of 5 inches or less, with comments accepted until June 1. Again, this occurred after our last issue was completed, so we posted this information on our website and included it in our online newsletter to get the word out.
From the EPA notice: “EPA is re-proposing the National Pollutant Discharge Elimination System (NPDES) General Permit for small suction dredge operations (intake nozzle size of 5 inches in diameter or less and with equipment rated at 15 horsepower or less) in Idaho. When issued, the permit will establish effluent limitations, standards, prohibitions and other conditions on discharges from covered facilities. A description of the basis for the conditions and requirements of the proposed general permit is given in the Fact Sheet. This is also notice of the draft § 401 Certification provided by the state of Idaho.”
There are numerous problems with the proposed regulations, which can be found on the EPA website.
Alan Trees (Gold Dredge Builders Warehouse) was nice enough to provide us with a copy of the comments he submitted to EPA, which you’ll find in the adjacent letter.
• California dredging update
• Study: Sage grouse does not need protection
• Tennessee enacts harsh new gold prospecting regulations
• Salazar pushes wilderness
• California Governor signs AB 120
• Positive bill passes House
• Anti-mining bill dies in Washington State
Representative Paul Shepherd stopped by, and Idaho County Commissioner Jim Chmelik dove with one of the dredgers so he could see for himself that no harm was being done to fish or their habitat.
Met by jeers and cheers from more than 1,000 people, US Senator Diane Feinstein (D-CA) made another pitch to create three new national monuments in the deserts of southern California recently.
• National Strategic and Critical Minerals Production Act
• CA suction dredging update
• Appropriations Bill addresses problems at EPA
• Bad science, worse policy
“When dealing with federal agencies...”
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