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Legislative and Regulatory Update

December 2008 by Scott Harn

• Election impact
Back In November 2007, the Associated Press reported that Barack Obama was against the Hardrock Mining and Reclamation Act of 2007. The bill was passed by the House of Representatives but failed to gain traction in the Senate.

Senator Obama told the Associated Press that the legislation “places a significant burden on the mining industry and could have a significant impact on jobs.” He also opposed the proposed fees.

The bill included royalties of 4% of gross-revenue on existing hardrock mines and an 8% gross-revenue royalty on new mines.

We will have to wait and see if he changes his views now that he has been elected.

Congress may be a different story. Many Democrats have traditionally favored placing additional restrictions on public land use and placing public lands off-limits to mining. They maintained their heavy majority in the House in this election, and Democrats obtained a majority of seats in the Senate. However, they failed, so far, to reach the crucial number of 60 seats, which would have allowed them to override any Republican filibuster. Democrats have 57 seats with 3 races still undecided. Joe Lieberman, an Independent from Connecticut, had been siding with Democrats on many issues but campaigned for McCain. He may play a more prominent role in any attempts to pass mining legislation.

At press time, it’s unclear who Obama will appoint to head key agencies and departments such as Interior, Energy, Environmental Protection Agency, Forest Service and Bureau of Land Management.

Obama has previously expressed support for additional restrictions on CO2 emissions and supports a cap-and-trade system. Placing restrictions on CO2 emissions would severely increase the cost of compliance for all industries, not just mining.

• New Washington State small-scale regulations
The Washington Fish and Wildlife Commission approved new small-scale mining regulations after literally years of meetings and talks between prospectors, miners and regulators.

For all of their efforts, the miners are worse off in many aspects.

Small-scale miners were previously regulated under the Gold & Fish Book, a pamphlet that miners were required to carry with them while mining in the state.

The original intent was to simplify regulations and delete regulations that were not backed by sound science. What the miners ended up with is 92 pages of regulations that are much more restrictive, and still not backed by sound science.

The Washington Department of Fish & Wildlife (WDFW) inserted timing windows for rivers and streams that prevent a miner from working during June and July in many watercourses, effectively preventing them from making a living. WDFW has failed to provide scientific evidence of the need for the timing restrictions beyond a mere possibility that fish eggs may be present.

“The probability of eggs still being in the gravel still existed in July,” Greg Hueckel, the WDFW’s habitat program assistant director, stated in an interview with the Yakima Herald-Reporter. “I have to be conservative. If the activity has the potential of damaging fish redds (egg nests), I cannot allow the activity to occur.”

The agency continues to ignore the fact that miners have been granted a right to mine under the 1872 Mining Law. They also ignore other studies that have concluded that suction gold dredging is de minimis—insignificant in terms of impact—and that suction dredgers and other miners clean the waterways by removing lead, mercury and trash.

The new regulations start April 3, 2009.