Legislative and Regulatory Update
March 2011 by Scott HarnThere have been a flurry of bills coming out of the House in an attempt to curtail the heavy-handed approach of the current administration regarding over regulation, and there are several recent Federal Register notices you need to be aware of. Here’s the latest regarding issues that affect miners:
• Idaho maintains control
Idaho District Court Chief Judge William Winmill rejected all arguments from environmental groups and upheld an October 2008 ruling from the Bush administration that allowed the state to operate under its own plan for roadless areas.
Idaho had submitted its own roadless plan to the federal government during the Bush administration that is less restrictive than the Clinton-era rule that would have prevented development in many roadless areas of the state.
Clinton created a 2001 nationwide Roadless Rule that barred most development and new road construction on nearly 58 million acres of National Forests. President Bush modified the rule to allow states to submit their own plans. Only Idaho and Colorado submitted plans, and Colorado’s is still pending.
The legal status of Clinton’s Roadless Rule is still unsettled—the 9th Circuit Court of Appeals determined the rule was legal, but US District Court Judge Clarence Brimmer in Wyoming subsequently held the rule was illegal.
• Enough wilderness already
Senator Dianne Feinstein (D-California) has again introduced a bill (S 138) to create a Mojave Trails National Monument in Southern California, which would place 1.6 million acres off-limits to mining, off-road vehicles, solar energy development and other uses.
• Restraining the EPA
Eleven Republican senators introduced S 228, a bill that would prohibit the Environmental Protection Agency from regulating greenhouse gases. Seven Democratic senators introduced S 231, which would prevent EPA from regulating greenhouse gases for two years and could allow sufficient time for Congress to create their own regulations.
• Republicans on the attack
As reported last month, Interior Secretary Ken Salazar announced that his agency was creating a new designation of “Wild Lands” that will be managed to preserve wilderness characteristics until Congress decides to either return the lands to multiple-use or add them to the Wilderness Preservation System. Now that Republicans are in control of the House, they are making a move to block Salazar from implementing this plan.
HR 1, the fiscal appropriations bill that funds the federal government, includes a provision to prevent Salazar from implementing his Wild Lands program by blocking all funding for it. The bill also slashes $100 billion in funding from public lands programs, and prevents the IRS and Health and Human Services from spending funds on ObamaCare.
Also in the bill, the Land and Water Conservation Fund would see their proposed budget of $619 million reduced to only $86.4 million. President Obama requested an increase to $900 million for the agency.
HR 1 passed the House on Friday, February 18. A Senate version of the bill is not scheduled for a hearing until the end of February.
Obama has threatened to veto the bill, but he will be in a bind if he does so. The federal government is operating under a temporary funding measure that expires March 4. The federal government will run out of money on that date and be forced to shut down if new funding is not authorized by Congress.
• DOI requests hard rock royalty
The Department of the Interior formally requested that Congress pass legislation to impose a gross royalty on hard rock mining. In a February 14 budget request, DOI also requested that claim maintenance fees be increased, though they did not specify an amount. Congress would have to act on this request for it to impact miners, and it does not appear likely to do so now that Republicans are in control of the House.
• New Forest Service plans
The Forest Service has opened another can of worms by publishing another proposed rule—this one would focus on “species viability” in individual forest plans. While there are some benefits to addressing forests individually instead of on a national scale, the Forest Service included a controversial provision in the rule to go beyond animals and include all plant and animal communities. The proposed rule is available online at www.fs.usda.gov/planningrule
Comments must be received by May 16, 2011.
• Bill supporting small miners
Senator Lisa Murkowski (R-Alaska) introduced S 303, a bill that would provide small miners up to 60 days to fix defects in annual maintenance fee waiver filings. The 60 days would also apply if BLM did not receive or process applications in time. Existing law allows for a 60-day waiver for maintenance fees for small miners (10 or fewer claims), but only if the applications were received on time by BLM.
• New mercury emission regs
The EPA published a final rule in the Federal Register on February 17 to limit mercury emissions from gold mine processing facilities.
The rule would require large facilities to spend millions to limit mercury emissions and would require a permit under Title V of the Clean Air Act.
Thanks go to our Associate Editor Chris Ralph and to many of our readers and advertisers for sending in comments on this rule when it was first proposed. Some of our recommendations were included, such as an exclusion for assayers and small operators, although we believe the threshold should be much higher. Excluded from this rule are laboratories, individual prospectors and small-scale operations that produce or process less than 100 pounds of concentrate per year. Also excluded are operations where 95% of the metals produced are those other than gold.
The rule is available on the Internet in pdf format.
• Latest info on California suction dredging
The Supplemental Environmental Impact Report (SEIR) for suction dredging in California should be available by the time you receive this issue.
Mark Stopher, Environmental Program Manager for the Department of Fish & Game, sent out an email advising that the SEIR would be available to the public on February 28. This will be followed by opportunities to submit public comments and public meetings.
We don’t expect to see the entire process completed nor dredging permits issued until after the 2011 season. We do expect a lot of biased information against suction dredgers in the SEIR. Be prepared for a battle.
The document will be posted on our website as soon as it’s available.
We ask that all who attend this demonstration bring their mining equipment to display and actively talk with the attending public in a courteous fashion about the benefits of suction dredging…
• It's almost November
• Two federal land managers found guilty of contempt
• A chance to halt additional wilderness in Southern California
• Oregon mineral withdrawal
• A really good reason to get out and vote in Oregon
On Tuesday morning, August 26, 2010, my clients Michael and Linda Backlund were forced to plead guilty to a charge of violating 36 CFR §261.10(b), which criminalizes maintaining a residence on Forest Service land without authorization “when such authorization is required.” This is a new regulation pursuant to which virtually anything, even a tent, is an unlawful “residence” unless authorized in advance.
The Senator’s office was very receptive to the small miner’s plight and was unaware of the dire problems created by the over-regulation of small-scale mining from so many different fronts. It was pointed out that S 145 may help the large mining companies a little, but falls woefully short in addressing the needs of small operators who make up 85% of domestic mines.
• Settlement hearings
• Fighting back
The Washington Department of Fish and Wildlife (WDFW) issued emergency rules without public comment just prior to our publication deadline.
Alaska Governor Sean Parnell has ordered an investigation of the recent raids, saying he will not tolerate a state agency's participation in the sort of conduct displayed.
The Bawl Mill • So You Want To Be A Full-Time Prospector? • Ask The Experts—Do I still have rights to this mining claim? • Ask The Experts—What is a "closed" claim? • Eastern Arizona: Gold and Base Metal Deposits Part II • Rediscovering Placerville, California Part II • Prospecting With The Help of Fluvial Geomorphology • Oregon Anti-Dredging Bill • Mud Men: Pocket Miners of Southwest Oregon Part II • The Gold of Plumas de Oro • Melman on Gold & Silver • Mining Stock Quotes and Mineral & Metal Prices