Legislative and Regulatory Update
May 2006 by Scott Harn
• Original Sixteen to One cleared
A three-judge panel from the 9th Circuit Court of Appeals vacated penalties against the Original Sixteen to One Mine that were part of a lower court decision following the death of miner Mark Fussell in November 2000. The panel also prohibited the Mine Safety and Health Association (MSHA) from taking any further action on the charges.
MSHA had issued citations to the company after the accident, claiming the company was responsible for the death because Fussell was part of management, and the equipment he had been using was faulty.
An MSHA hearing officer sided with the agency, disregarding company claims that Fussell was a rank-and-file miner and that the equipment was damaged due to the accident.
During an appeal through an MSHA commission, the company requested more time to adequately address evidence and testimony presented by the government. The MSHA commission denied the request.
The 9th Circuit judges criticized MSHA for failing to grant the extra time to the company. The panel also stated there was “no substantial evidence” to warrant the charges.
• Another court case settled
A settlement agreement was reached in Public Lands for the People (PLP) member Dee Stapp’s lawsuit against the US Department of Interior and Bureau of Land Management. Stapp filed a lawsuit against the federal government to address several burdensome regulations that were promulgated in 2000, and to try and clarify vague terminology. The Settlement:
1. Clarification of “casual use.” The regulatory maximum for casual use is “negligible” disturbance, not “no” disturbance. Casual use:
a) Includes the collection of geochemical, rock, soil or mineral specimens using hand tools, hand panning, non-motorized sluicing, metal detectors, gold spears and other battery-operated devices for sensing the presence of minerals, and hand- and battery-operated drywashers.
b) May include use of small portable suction dredges or motorized drywashers not greater than 10hp provided the activity results in no greater than negligible disturbance.
c) May include occupancies limited to 14 days or less in a 90-day period.
d) Excludes the use of mechanized earth-moving equipment, truck-mounted drilling equipment, chemicals, explosives, or the use of motorized vehicles in areas designated as closed to off-road vehicles. BLM, in any new road closure proceeding in the California Desert District that begins after the date of settlement (February 27, 2006), will, in good faith and to the extent practicable, notify mining claimants of record who use the roads for access to their mining claims, and will consider mineral resources in its decision whether to close the road.
2. For a mining or exploration operation involving an occupancy with no greater than negligible surface disturbance that does not qualify as casual use solely because of an occupancy of greater than 14 days in a 90-day period, the individual financial assurance required under 43 CFR 3809.552 will be the minimum estimated cost necessary to perform reclamation under the reclamation plan resulting from the occupancy, including the removal and disposition of any property left on the mine site. If such estimated costs resulting from such occupancy are minimal, BLM will require only a nominal financial assurance from that individual as long as that amount is sufficient to cover the estimated reclamation cost. When the operator requests that BLM release its financial assurance under 43 CFR 3809.590 following completion of reclamation and closure activities, BLM will process the request under the procedures of 43 CFR 3809.590 through 594 as “expeditiously” as practicable.
3. BLM will direct its California employees who review notices under 43 CFR 3809 to complete in as timely a manner as possible their review and other actions necessary to process a notice that may be submitted by the BLM reflecting an operation involving an occupancy that would result in no greater than negligible disturbance.
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