Legislative and Regulatory Update

November 2018 by Scott Harn

• Some mining claim fees increase
The Bureau of Land Management (BLM) has increased some of the filing fees associated with mining claims.

Effective October 1, 2018, BLM increased the fee from $10 to $15 per mining claim for filing an amendment, transfer of interest, notice of intent to hold, and affidavit of labor. The agency claimed the fee increase is warranted per their cost recovery rules.

Other mining claim fees remain the same, including: $212 for filing a new 20-acre claim; $155 maintenance fee per 20 acres; $20 processing fee; $37 location fee.

Reminder: claim holders need to file a notarized and recorded affidavit of labor with BLM by December 30 if a small miner waiver was filed last year. The new $15 fee will be required with this filing. If you have already filed your affidavit and submitted the old $10 fee, I highly recommend you contact your BLM office and find out if another $5 is required. Be sure to keep notes on who you spoke with and their answers in case a challenge needs to be made at a later date.

• Oregon miners file appeal
On September 12, 2018, a three-judge panel with the US 9th Circuit Court of Appeals ruled against the miners in Bohmker v. Oregon, a case that sought to overturn Oregon’s ban on all motorized in-stream mining in streams designated as “essential salmon habitat.”

In a 2-1 decision, the court concluded that Oregon Senate Bill 3 was not preempted by federal law. Judge N.R. Smith, in a dissenting opinion, stated Senate Bill 3 restricts a particular use of federal land and is preempted by federal law.

Oregon miners have subsequently filed an appeal requesting an “en banc” hearing before all eleven judges of the 9th Circuit. Although the 9th Circuit is notorious for ruling against property holders and their decisions have been overturned more than any other appeals court, this is the next step in the process. An adverse ruling by the 9th Circuit can be appealed to the US Supreme Court and, according to Tom Kitchar of the Waldo Mining District and Kerby Jackson of the Galice Mining District, that is the plan.

Amicus briefs in support of the miners were filed by Mountain States Legal Foundation at the request of the American Exploration and Mining Association.

There are some similarities between this case and the People v. Rinehart case in California. The Rinehart case went all the way to the US Supreme Court, but the court failed to accept the case for review.

Back in March 2017, I was in Washington, DC, along with Clark Pearson of Public Lands for the People. Present were five of President Trump’s agency appointees and we discussed the Rinehart case. In briefs filed with the US Supreme Court regarding Rinehart, the Department of Justice had taken a position that California was not interfering with the rights of miners when it prevented miners from utilizing suction gold dredges. One of the appointees clearly stated the DOJ opinion was in error but the brief was submitted by a member of the previous administration during a period when the new administration was still in transition and it wasn’t caught in time. The appointee suggested another, future case appealed to the US Supreme Court would be beneficial so federal preemption could be properly asserted.

Bohmker v. Oregon appears to be a very strong case to fix the federal preemption issue.

• US Fish & Wildlife law enforcement policing powers restrained
On September 21, the Trump administration stripped law enforcement authority from those Fish and Wildlife employees working as refuge managers.

Full-time law enforcement officers within the agency will remain; only those who have dual roles as both enforcement and refuge management will lose their law enforcement authority. The change is due to take place on January 1, 2019.

by Scott Harn

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