Legislative and Regulatory Update
March 2001 by Staff• Bush puts Roadless Initiative on hold
President Bush suspended Clinton’s Roadless Initiative for 60 days to review the plan.
Bush stated when he took office that he would revisit executive orders and regulations rammed through during the final days of the Clinton Administration.
The forest plan, which President Clinton announced Jan. 4, has been attacked by Republican Western lawmakers, and by energy, timber and mining industries.
The forest restrictions were published in the Federal Register before Bush took office, so he can’t block or alter them without going through a new rule-making process. The new effective date for the Roadless Initiative is May 12.
The forest plan is still under review by the Agriculture Department, said USDA spokesman Kevin Herglotz. “No decision has been made,” he said.
Sierra Club spokesman Sean Cosgrove said the delay buys the administration some time while Bush officials decide how to try to roll back the plan. “I don’t know exactly what the Bush Administration thinks they need to review or what they want to look at except at how they can take it apart,” he said.
The chairman of the House Resources Committee, Rep. Jim Hansen, R-Utah, has appealed to Bush to work with Congress on rolling back the plan. Hansen called the restrictions “one of the most egregious abuses by the Clinton Administration.”
Several senators opposed to the plan have said they will use a never-invoked 1996 law that allows Congress to rescind a regulation within 60 legislative days of it being published. The deadline for lawmakers to act on the rule will depend on the congressional schedule over the coming weeks.
• SWANCC v. US Army Corps of Engineers
A recent Supreme Court Decision limited the US Army Corps of Engineers jurisdiction pertaining to wetlands.
In Solid Waste Agency of Northwestern Cook County (SWANCC) v. US Army Corps of Engineers, the Supreme Court ruled that the Corps did not have jurisdiction over isolated wetlands in a case where they wanted to regulate isolated pools of water near a Chicago area gravel pit.
A proposal was on the table to convert the gravel pit to a landfill. The Corps relied on paragraph 3 of section 404 of the Clean Water Act, which states the Corps can regulate discharges into the following:
...all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce...
The Supreme Court stated, “In order to rule for the respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. We conclude that the text of the statute will not allow this.”
What does this mean to you? In a nutshell, the opinion states that the Corps is limited in jurisdiction to navigable waters. If you are considering a project where isolated waters or wetlands are present, you should take this ruling into account. If you have a permit in hand from the Corps, you should be able to re-visit any restrictions they placed on you with regard to isolated waters. Consultation with your attorney would be a good start.
• New Arizona monument added to lawsuit
Tucson, Arizona (AP)—Shortly after then-President Clinton established the Sonoran Desert National Monument, his authority to do so is under legal challenge.
The Mountain States Legal Foundation added the southern Arizona monument to its lawsuit that questions the constitutionality of the Antiquities Act of 1906 under which Clinton established several monuments, including this one and two others in Arizona that are challenged.
The lawsuit contends that under the federal constitution, only Congress has the power to make rules regulating public land use, including designation of national monuments.
William Perry Pendley, the organization’s president, stated, “President Clinton boldly ignored the desires of Westerners as well as the clear restrictions of the Constitution.”
President Bush has stated he will review all of Clinton’s orders. Gale Norton, Bush’s Interior Secretary, used to work with the Mountain States Legal Foundation.
• Clinton’s mining moratorium in Siskiyou may not last
Cave Junction, Oregon (AP)—A temporary ban on new mining claims that also started a public debate over creating a Siskiyou-Wild Rivers National Monument has apparently gone into effect, but could still be reversed by the Bush Administration.
President Clinton imposed a two-year moratorium on new mining claims and a review of old ones on more than 1 million acres covering the Siskiyou National Forest and adjacent BLM land just before leaving office.
Babbitt recommended the mining moratorium as a consolation prize to environmentalists who had been intensely lobbying the Clinton Administration to create the monument.
Babbitt called small-scale placer gold mining in rivers and creeks in the area the greatest threat to the most important wild salmon and steelhead habitat between the Columbia River to the north and the Sacramento River to the south.
• County illegally used mining claims in land swap
Aspen, Colorado (AP)—About 40 people have filed actions in federal court claiming their land was unlawfully snatched by Pitkin County for a land exchange with the US Forest Service.
In 1994, Pitkin and Eagle counties teamed up to acquire the Mount Sopris Tree Farm in El Jebel from the government. Pitkin County contributed 267 patented mining claims that totaled 1,258 acres to the swap. Eagle County added 49 acres. The titles to lands contributed aren’t in question.
The complainants say the county did not own 62 of the mining claims, however, and therefore couldn’t legally use them. They have filed cases, called “quiet title actions,” in US District Court in Denver to try to regain titles to the properties.
The Forest Service will determine in March how to respond to the quiet title actions.
Al Grimshaw, with the Forest Service’s Aspen Ranger District, said patented mining claims often have “clouds” on ownership. “We knew we were going to have some legal challenges filed,” he said.
Grimshaw said the claims were accepted in the exchange because the deal was approved by Congress, even though the Forest Service had considered the titles to some county-held mining claims “too shaky.”
Aspen attorney Gary Wright filed 51 quiet title actions involving about 35 people and including about 60 of the patented mining claims. Two other quiet title actions were filed by a Denver law firm.
• Montana Governor asks new interior secretary to turn over mineral rights
Billings, Montana (AP)—Governor Judy Martz has asked the new interior secretary to turn over federal coal along the Tongue River to the state.
In a letter sent to Interior Secretary Gale Norton, Martz asked for the “immediate transfer” of the mineral rights for the coal, which the state contends was promised for helping oppose construction of the Crown Butte gold mine near Yellowstone National Park in 1996.
“Montana is aggressively pursuing the development of additional power-generating capabilities,” wrote Gov. Martz.
Turning over the federal mineral rights on the Otter Creek Tracts “will assist in the goal of providing reliable and affordable power not only to Montana, but to the entire western United States,” she added.
Former Interior Secretary Babbitt refused to turn over the mineral rights to the coal despite repeated requests from former Governor Marc Racicot. In a previous letter to Gov. Racicot, Babbitt said the development of the coal would have “the potential for environmental disruption.”
Martz said she expects “a quick response” from the new administration.
• Republican Representative from Nevada elevated to vice chairman on mining
Reno, Nevada (AP)—Rep. Jim Gibbons of Nevada was elevated to a new seat on a congressional panel with key oversight of the mining industry.
Gibbons will serve as the vice chairman of the House Resources subcommittee on energy and mineral resources.
“He is a true leader on mineral issues,” said Rep. Barbara Cubin, a Republican Representative from Wyoming, who announced his appointment.
“Nevada’s mining industry and the thousands of employees who reside in my congressional district will now have a stronger voice and influence on legislation that comes before this body,” Gibbons said.
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The case is Fortner & Montana Multiple Use Association v. Broadwater County Soil Conservation District, Cause No. DV-04-45. Fortner is a miner who owns patented mining claims in Confederate Gulch in Broadwater County.
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