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Legislative and Regulatory Update

July 2010 by Scott Harn

• Cap and trade
Cap and trade legislation to regulate carbon emission is moving back to the forefront in Congress, in large part due to the continuing oil leak in the Gulf of Mexico.

The House passed its version of a climate change bill last summer that sets goals of reducing carbon emissions from major polluters 80 percent by the year 2050 and includes a cap and trade program. But the Senate’s version has been stalled, and it doesn’t appear that the required 60 votes to pass such a bill are available at the present time.

Democrats are acting with some urgency as recent polls indicate they may lose seats in both the Senate and the House in the November elections.

Senator Lisa Murkowski’s Resolution of Disapproval, which would have prevented the EPA from regulating carbon emissions under the Clean Air Act for two years, was defeated by a 53-47 vote on June 10.

Several Democrats and every Republican in the Senate came together in voting for the measure, but it wasn’t enough to produce a majority.

• Roadless rule
Secretary of Agriculture Tom Vilsack renewed an interim directive on May 28 that gives him authority to approve activities in so-called roadless areas in national forests, but he did not expand it as requested by environmental groups to include areas under consideration since 2000.

During the past year, Vilsack personally approved 21 projects in roadless areas. The interim directive is valid for one year.

The roadless rules put into place by the Clinton administration and subsequently revoked by Bush are still in the courts. On June 16, 2009, Judge Clarence Brimmer determined the rules were illegal, but the Ninth US Circuit Court of Appeals had earlier ruled it was valid. The Tenth US Circuit Court of Appeals is currently reviewing Brimmer’s decision and a ruling is expected any time.

• WDFW backs down thanks to miners
The Washington Department of Fish & Wildlife (WDFW) has backed off its plan to impose new restrictions on small-scale miners.

Through a Freedom of Information Act request, the Resources Coalition had learned that WDFW had been meeting behind closed doors with members of the National Oceanic and Atmospheric Administration to craft new, severe restrictions on small-scale miners in Washington even though new rules were just recently promulgated following public comments and accepted procedures.

After the Resources Coalition attorney sent a letter to the agencies, WDFW agreed to meet with miners and discuss the situation. WDFW subsequently backed off and agreed to consult with miners if additional changes or restrictions are sought.

• California dredge permits
Senator Sam Aanestad’s bill to require the State of California to refund all dredge permit fees collected in 2009 was amended by Democrats in the Assembly Committee on Water, Parks and Wildlife to reduce the amount of the refund. Senator Aanestad’s reaction is located later in this issue. (See “California Dredgers Shafted by Assembly Democrats”).

We strongly suggest that suction dredgers sue the Department of Fish & Game in small claims court to recover the permit fee, as Walt Wegner of Public Lands for the People successfully did earlier this year. (See “Dredger Wins Claim Against Fish & Game Director” in our March 2010 issue.)

We are quite surprised that others haven’t followed in Wegner’s footsteps—at least we aren’t aware of other small claims cases being filed. In small claims court you can seek a return of the permit fee, the court filing fee, and the income lost from being unable to recover gold by the only economical method available—gold dredging—if you can sufficiently document your losses. The rules in small claims court dictate that the parties must represent themselves. No attorneys are allowed. The Fish & Game director is required to appear if sued using this method, and you can win by default if he doesn’t show up. We would love to see the California Department of Fish & Game inundated with these cases.

Feel free to contact the Journal if you would like a free copy of the article describing how Walt Wegner won his case, and please contact us if you sue the state—we would like to report your success to our readers.

The process of completing a new Environmental Impact Report continues at a snail’s pace while challenges to the dredging moratorium continue in state and federal courts.

• BLM faces lawsuit in Washington State over access
Subscriber and miner Dennis Beal teamed up with 96-year-old retired Senator Wilber Hallauer, other inholders, and Washington’s Okanogan County in a lawsuit against BLM over road access.

Beal, one of several inholders, stated he was invited by Hallauer to join the lawsuit and gladly accepted.
BLM obtained land on Palmer Mountain in 1995 after a series of land exchanges, and subsequently placed a locked gate on an access road. Beal stated the agency was trying to force landowners and mining claim holders to sign an agreement in exchange for a key to the gate.

Several of the inholders and their attorneys met with BLM to try and resolve the issue but the agency refused to remove the gate, Beal added.

Hallauer stated he would just like to see his rights restored while he is still alive. Okanogan County wants complete public access restored.

by Scott Harn

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