Magazine

Legislation & Regulation

Legislative and Regulatory Update

October 2018 by Scott Harn

• Interior Department reigns in “sue and settle”
The Department of Interior (DOI)announced a series of steps the agency will take to reign in “sue and settle” tactics utilized by environmental groups and supported by some previous administrations.

The agency announced that $4.4 billion was awarded in settlements and consent decrees between January 1, 2012, and January 19, 2017, which averages more than $800 million in taxpayer dollars per year. Just in the past year, DOI was party to 96 settlements or consent decrees and paid out more than $1.7 billion.

In addition, many of the settlements were not disclosed to the public.

DOI agreed to create a publicly accessible webpage with details of ongoing litigation; publish notices for proposed consent decrees in the Federal Register and allow at least 30 days for public comment; create a searchable database of judicial rulings, consent decrees and settlements along with attorney fees paid; publish any consent decree or settlement agreement that requires the agency to commit funds or to seek budget appropriation or authorization.

Here is a link to the DOI announcement from Interior Secretary Zinke.

• Comments needed on Forest Service Part 228 regulations
On 9/13/2018, the US Forest Service published an “Advanced notice of proposed rulemaking” and request for comment. The agency is considering changes to 36 CFR (Code of Federal Regulations) Part 228 regulations that govern locatable minerals.

The “good” part is the agency is proposing expedited procedures for exploration that disturbs five acres or less and making the regulations more consistent with Bureau of Land Management regulations, which is what we have been advocating along with Public Lands for the People during multiple meetings with agency officials in Washington, DC.

Just one of the “bad” parts is the agency is trying to codify a 14-day limit for camping on Forest Service lands after losing in court in US vs. Lex & Waggener back in 2003, and the agency wants to require bonding for activities that were previously exempt.

During our latest meeting with a USFS deputy director in DC in June, Clark Pearson (of Public Lands for the People) and I presented 412 complaints we received from miners along with a summary of those complaints and suggested fixes for many of the issues presented. The number one complaint dealt with restricted access to public lands. This was followed by complaints about the agency’s interpretation of what constitutes a “significant disturbance,” which our readers typically described as “overbroad,” “overboard,” “unreasonable” and “defies common sense.” Some of our suggested changes appear to have been included in the proposed rulemaking.

Another major complaint involved the agency’s failure to comply with Executive Order 13377. (This EO, signed by President Trump on February 25, 2017, required the agency to reduce unnecessary regulatory burdens placed on the American people.)

In our opinion the USFS needs to make drastic changes to remove obstructions to access, expand the definition of “casual use,” define suction gold dredging as “deminimus,” remove or significantly lengthen occupancy limitations for those actively engaged in exploration or mining, set firm time limits for approval of Notices and Plans based upon the acreage involved and provide for approval by operation of law if those time limits aren’t met, and redefine “significant disturbance.”

There is plenty more in the Federal Register Notice than cannot be covered here. It’s significant to note that while a few Executive Orders are mentioned within the notice, there is no mention of EO 13377 and the requirement to reduce the regulatory burden on the American people.
I highly recommend you read the entire notice and respond to each of the questions that apply to you. We have provided a link to this Federal Register Notice in the online version of this article.

Comments are due by October 15, 2018. Try to address each specific question in your comments. This could be a significant opportunity to fix many of the issues and provide regulatory relief if enough miners and prospectors provide constructive comments.

Keep in mind there is no provision for “recreational” or “hobby” mining on public lands under the mining laws. These terms should not appear anywhere in your comments.

You can review the proposed changes and submit comments via this link at www.regulations.gov. This will bring up the a link to all the documents related to this proposed rule and you’ll see a blue “Comment Now!” button on the webpage.

Constructive comments can also be mailed to:

USDA-Forest Service
Attn: Director—MGM Staff
1617 Cole Blvd., Building 17
Lakewood, CO 80401.

For further information, contact Cheryl Nabahe, USFS Minerals and Geology Management, at (202) 205-0800.