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Legislation & Regulation

Legislative and Regulatory Update

December 2016 by Scott Harn

• Trump wins!

Former Secretary of State Hillary Clinton received 232 electoral votes to Donald Trump’s 290; 270 were needed for the win. At press time, Michigan was still undeclared and their 16 electoral votes were still up for grabs, though Trump was ahead by 11,612 votes.

Republicans maintained their majority in the Senate 51 to 48, with a runoff election still pending for the final Senate seat on December 10 in Louisiana.

Republicans also maintained control of the House of Representatives 239 to 192, and increased control in the states with 33 governors.

There is still no clear winner in the North Carolina governor’s race as of our press time. Out of nearly 5 million votes, Democrat Roy Cooper was ahead of Republican Pat McCrory by less than 5,000 votes. Absentee and overseas ballots were still being counted in North Carolina at press time, and a recount appeared likely.

Donald Trump’s win could bode well for prospectors and miners of all sizes. He campaigned on promises to do away with many of the economically harmful rules and regulations put in place by President Obama, the Environmental Protection Agency (EPA) and other federal agencies over the past eight years.

“Environmental protection, what they do is a disgrace; every week they come out with new regulations,” Trump said to Fox News last year.

President-elect Trump has also promised to “eliminate our most intrusive regulations, like the Waters of the United States Rule” the Obama administration has pushed to take control of non-navigable waterways in the US, and Trump promised to rescind the Climate Action Plan. He’s also expected to scale back the current administration’s Clean Power Plan and has vowed to repeal Obamacare.

President-elect Trump has been working to fill his cabinet, and the people he has tapped so far are much more in favor of public land use—including mining—than the Obama administration.

Meanwhile, current EPA administrator Gina McCarthy is pressing her staff to rush through regulations while President Obama is still in office.

In a staff memo issued after the Trump victory that was obtained by the Washington Examiner, McCarthy stated, “As I’ve mentioned to you before, we’re running—not walking—through the finish line of President Obama’s presidency.”

While we don’t expect to see much from a lame-duck Congress, we should count on more executive orders from President Obama that might have to be addressed by President-elect Trump. Inauguration Day is Friday, January 20, 2017.

And we are happy to report that the Minerals and Mining Advisory Council has been working with Congress and a member of Trump’s transition team since March 2016 on several bills to reset the playing field and remove many of the obstructions miners currently face. (See MMAC Update for more on this topic.)

• 9th Circuit: projected global warming is sufficient for ESA

The 9th Circuit Court of Appeals continues to come up with opinions that defy logic.

In Alaska Oil and Gas Association v. National Marine Fisheries Service, et.al., the 9th Circuit ruled that a federal agency can list a species under the Endangered Species Act if that species will become endangered in the future due to climate change.

In this particular case, the National Marine Fisheries Services (NMFS) projected that a subspecies of the Pacific bearded seal will become endangered around the year 2095 due to melting sea ice because of climate change.

The NMFS claimed they used computer-generated climate projections to make their determination, which was based upon data provided by the United Nation’s Intergovernmental Panel on Climate Change.

The original ESA listing request in this case was made by the Center for Biological Diversity.

The 9th Circuit stated, “The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process.”

President-elect Trump has publicly stated he would “cancel” the global warming agreement negotiated by President Obama in Paris, and back in January 2014, Trump sent out a tweet that stated, “This very expensive global warming bullshit has got to stop.”

The ruling can be viewed online at https://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/24/14-35806.pdf

• Eagle Mountain proposed withdrawal

The Bureau of Land Management (BLM) proposed a two-year land withdrawal and segregation of the Eagle Mountains, which was posted in the Federal Register.

This area includes the Eagle Mountain Mining District, an organized, traditional Mining District, located in Riverside County, California.

It appears the BLM is attempting to ram this through quickly without the approval of the Eagle Mountain Mining District before President-elect Trump takes office, but the miners should be able to stop it with the assistance of the new administration.

A public meeting is scheduled for January 18, 2017, at UC Riverside Palm Desert, 75080 Frank Sinatra Dr., Palm Desert, CA 92211. The meeting is scheduled from 6pm to 9pm. Public comments sent by mail must be received by February 16, 2017, and may be sent to:

David Smith, Superintendent

Joshua Tree National Park

74485 National Park Dr

Twentynine Palms, CA 92277

• CA Water Board dredge meetings

The California State Water Resources Control Board announced a series of public “workshops” to begin hashing out suction gold dredging regulations and the permit process in the state.

The workshops are scheduled as follows:

Tuesday, January 17, 2017

1pm to 5pm

Falls Event Center

4105 W Figarden Dr

Fresno, CA 93722

Wednesday, January 18, 2017

1pm to 5pm

Elks Lodge

2055 Elks Dr

San Bernardino, CA 92404

Wednesday, January 25, 2017

1pm to 5pm

Redding City Chambers

747 Auditorium Dr

Redding, CA 96001

Monday, February 6, 2017

1pm to 5pm

Joe Serna Jr - CalEPA Bldg

Byron Sher Auditorium

1001 I St, 2nd Floor

Sacramento, CA 95814

For the time being, interested suction dredgers should attend these meetings. One of the first questions that should be asked is, “Have you consulted with the Mining Districts on this matter?” The answer is going to be “no,” and the follow-up question should be, “Why not?”

As we have discussed many times in the Mining Journal, proposed legislation from the Minerals and Mining Advisory Council would eliminate the authority of the State Water Resources Control Board to regulate mining. Our chances of getting this legislation passed in the near term are very good, especially since the election of Donald Trump, but it does take time. We just might be able to remove the Board from the process entirely before they can put forth any proposed regulations.

by Scott Harn

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