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Legislative and Regulatory Update

April 2006 by Scott Harn

• USFS cost recovery
The US Forest Service issued final cost recovery rules on February 21, 2006, for special use permits.

Special use permits do not apply to locatable minerals under the Mining Law. Mining activities are non-discretionary and are governed by 36 CFR 228 regulations.

• Measure 37 affirmed
Measure 37 was passed by Oregon voters in 2004. Measure 37 provides: “If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to December 2, 2004, that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation.”

In lieu of providing just compensation, the measure allows the governing body responsible for enacting the land use regulation to modify, remove or not apply the regulations.

A Circuit Court had ruled that Measure 37 violated the state and federal constitutions and intruded on the authority of the legislature.

The Oregon Supreme Court overturned the lower court.

The case is Macpherson, et al v. Department of Administrative Services, et al (CC No. 05C10444; SC S52875). The case is available on the Oregon Supreme Court website at www.publications.ojd.state.or.us/S52875.htm

• Court declines to hear Canyon Resources claim
The US Supreme Court declined to hear Canyon Resources’ claim that the anti-cyanide initiative passed by voters in Montana in 1998 amounted to an illegal taking.

Canyon Resources already lost in the Montana Supreme Court. They may try to take their case to the US District Court in Montana. Canyon Resources has stated that the initiative prevents the company from bringing the Seven-Up Pete Joint Venture into production.

• Kempthorne nominated to head Interior
President Bush chose Idaho Governor Dirk Kempthorne to be the next Interior Secretary following the departure of Gale Norton.

Kempthorne spent six years in the Senate. He was elected as governor in 1998, and re-elected in 2002.

The League of Conservation Voters, the main lobbying arm for environmental groups, said its scorekeeping shows Kempthorne hostile to their interests.