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Legislative and Regulatory Update
May 2000 by Scott Harn
Several subscribers to ICMJ have called after being denied renewal of their Special Dredge Permit by the Dept. of Fish & Game.
I have had conversations with Dept. of Fish & Game officials over the past month regarding this issue.
Craig Martz at the Redding office of the DFG stated they were informed that the State Attorney General's Office issued an opinion which questioned DFG's authority to issue the permits.
The opinion applies to Special Dredge Permits that are issued for early or late season, closed waters, or larger sizes. Martz's office was instructed not to issue Special Dredge Permits for the year 2000 until further instructions were received. Martz forwarded the opinion paper for my review.
The opinion was authored by Deputy Attorney General M. Anne Jennings. It states, in part, "...section 5653 [of the Fish and Game Code] does not authorize special permits, that is, permits that do not comply with the generally applicable regulations specifying permissible and prohibited waters, equipment and methods of operation. Rather, section 5653 contemplates that the Department will designate permissible and closed waters, maximum sizes for dredges and times of the year for their use, and then issue all permits that comply with these regulations where there is no deleterious impact on fish.
"The Legislature also made it unlawful to possess a suction or vacuum dredge in or near any water that is closed to the use of vacuum or suction dredging. This would presumably include both waters that are always closed to suction dredging and waters that are closed at that particular time."
I contacted Jim Steele, Branch Chief of the DFG, in Sacramento. Steele said that the State Attorney General's Office issued an opinion which states that the DFG has never been granted the authority to issue Special Dredge Permits. After discussing possible remedies to this opinion, Steele offered the following two remedies:
1. Changing the regulations. Dredgers can petition the DFG to review and change the size and time restrictions for a particular waterway or portion thereof. The DFG will review these requests after receiving the petition.
2. Granting DFG the authority. The Legislature can grant the DFG the authority to issue Special Dredge Permits.
First, I encourage you to petition the DFG to review the location where you have been dredging or would like to dredge. Get the process started as soon as possible. The opinion issued by the AG's office states, "Allowing dredging in an otherwise closed water or with a larger dredge would result in greater, and potentially adverse, impacts that would have to be evaluated on a case-by-case basis." Be prepared to present your case, including your past compliance and lack of violations.
Second, notify your congressional representative. Do your best to get his or her support by laying out the facts—include that this has been an accepted permitting process for decades and stress that dredgers will still be subjected to the same extensive rules and regulations.
• Clinton Adviser Defends Roadless Plan Process
Washington (AP)—Clinton's top environmental adviser says the administrative process that could result in the permanent protection of 50 million acres or more of roadless national forests is an "unparalleled" effort in the history of the U.S. Forest Service.
George Frampton, who heads the White House Council on Environmental Quality, said public meetings held after President Clinton launched the process last October drew comments from more than 500,000 people.
"Despite what was less than complete satisfaction on the part of everyone, my evaluation is that the scoping process was not fatally flawed," Frampton told members of the forests and public land management subcommittee.
Western Republicans and some outside groups have heaped criticism on the Forest Service for holding the meetings on short notice and for providing too little information on roadless areas that could be put off limits for logging, mining and other development.
Those criticisms continued Thursday when Montana Gov. Marc Racicot told the subcommittee that administration officials have not consulted with states in the same way they consulted with environmentalists on details of the process.
"As a result, I believe, the process laid out by the administration is fraught with a cloud of future litigation," said Racicot, a Republican.
Sen. Larry Craig, R-Idaho, the panel chairman, said 500,000 public comments do not guarantee there was meaningful participation.
"There was a phenomenal lack of information" for public comment, he said.
Administration officials hope to complete the administrative rule-making before Clinton leaves office next January. They plan more public hearings later this year when they unveil the draft version of their plan, which environmentalists say could be one of the great environmental acts of the last 100 years.
Racicot and other Western governors have asked the Clinton administration to declare their states "cooperating agencies" for the purpose of the initiative—a designation that would allow the states to help write the proposed roadless rules.
But Forest Service officials told the governors that, although they were willing to work with them and exchange information, they would not give them "cooperating agency" status.
Frampton told the Senate Energy and Natural Resources subcommittee that he is not aware of states being granted "cooperating agency" status for the crafting of a national rule.
On March 30, an environmental group released polling data from 11 states, including seven in the West, showing the roadless proposal has broad public support.
The poll released by the Heritage Forests Campaign showed that 83 percent of people in Wisconsin, the highest percentage among the 11 states, and 53 percent of people in Montana, the lowest percentage, support the policy.
The percentage of support was 75 in Colorado, 72 in California and Washington state, 71 in New Mexico, 67 in Oregon and 57 in Idaho.
But the poll question, while telling respondents that half of the forest lands have already been logged, mined and roaded, left out common criticisms of Clinton's initiative, such as Republicans' contention the president is avoiding Congress by trying to enact the plan administratively.
For information on the Internet: www.roadless.fs.fed.us
• Forest Service to Seek Wilderness Status for Much of Chugach
Anchorage, AK (AP)—The U.S. Forest Service has issued a draft management plan that would set aside the Chugach National Forest primarily as wilderness, with an emphasis on wildlife and recreation rather than mining or logging.
The agency wants 2.3 million acres of the 5.5 million-acre forest designated as wilderness. That would require congressional approval.
The proposal includes much of the land surrounding Prince William Sound, which the Forest Service previously has recommended for wilderness protection. The plan also includes the eastern half of the Copper River Delta, which never before has been recommended to remain as wilderness.
Such areas usually are left in a primitive state with no developed campgrounds or logging and only limited mineral development.
The wilderness recommendation is drawing fire from a number of groups, including fishermen, miners, a Native corporation and members of Alaska's congressional delegation.
Rep. Don Young (R-Alaska), chairman of the House Resources Committee, launched an investigation this week into the Chugach Forest planning process. Young contends that it favors environmentalists.
Steve Hansen, a spokesman for the investigatory committee, said the investigation will examine how the Forest Service selected land for wilderness designation and who influenced decisions.
"This is what is happening nationally," Hansen told the Anchorage Daily News. "In large public lands states, the Forest Service is working to take multiple-use lands and turn them into wilderness."
© ICMJ's Prospecting and Mining Journal, CMJ Inc.
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