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Legislative and Regulatory Update

June 2005 by Staff

• Funds eliminated for federal land acquisitions
The House Appropriations committee approved a fiscal 2006 bill that would eliminate new federal land acquisitions from the Land and Water Conservation Fund (LCWF), saving $122 million.

“I do sympathize with constituents of those programs, but core programs such as agency operations frankly must come before grant programs,” said Democrat Norman Dicks (D-Washington).

The bill includes $43 million for LCWF, but that would only cover current administrative costs.

• ANWR leasing
Both the House and Senate approved a fiscal 2006 Congressional budget that would allow oil and gas leasing in the Arctic National Wildlife Refuge (ANWR).

ANWR is still far from final approval. The Senate will not be writing their reconciliation bill until late September, allowing time for a Medicaid study to be completed first. The reconciliation bill will include specific language about ANWR leasing. Using the budget reconciliation bill, instead of including ANWR in the separate energy bill, would exempt ANWR from a Democratic filibuster—only 50 votes are needed to pass the budget bill.

• GAO scolds Fish & Wildlife
The General Accounting Office (GAO) released a report that stated the Fish and Wildlife Service (FWS) needs to address its priorities. The GAO said the FWS sometimes prioritizes expenditures based on the availability of partnership money from groups like environmental organizations rather than prioritizing based on the most endangered species.

House Resources Committee Chairman Richard Pombo (R-California) said the report is another reason why the Endangered Species Act should be rewritten.

“Congress bears just as much responsibility for the poor track record as the agencies implementing the law,” said Pombo. “This is just another symptom of a law that desperately needs updating.”

• Red Rock wilderness proposed again
Fifteen senators and 152 representatives signed on to legislation that would create a 9.5 million acre Red Rock wilderness area in Utah. All of the sponsors are Democrats and there are no sponsors from Utah.

The bill has been introduced every year since 1989 in the House, and every year since 1997 in the Senate without success.

Three members from Utah have sponsored a much more modest wilderness bill that would place 100,000 acres off-limits in the Cedar Mountains on the eastern edge of the Great Salt Lake Desert.

• BLM websites still down
Most Bureau of Land Management (BLM) websites have been kept off-line since early April 2005, and remain so at press time.

BLM stated they are concerned that hackers could gain access and alter some files. They are particularly concerned about files related to the Indian trust fund.

Other Department of Interior websites could also be taken off-line. Plaintiffs in a lawsuit filed regarding Indian trust fund payments asked a federal judge to close all Interior websites that contain trust fund data, but a decision has not yet been made.

Regarding how long the websites will be unavailable, one department official stated, “We’re optimistic it won’t be long.”

• Karuk lawsuit update
The New 49’ers obtained intervener status in the lawsuit filed by the Karuk Tribe against the Forest Service (“Suit Filed to Stop Mining in Northern California”—January 2005 issue).

The Karuk’s are attempting to force the USFS to require a Plan of Operation, including financial guarantees (bonding), for any and all types of mining in riparian areas of the Six Rivers and Klamath National Forests.

The New 49’ers announced that, prior to the granting of intervener status, the USFS signed a partial settlement, agreeing that the USFS must consult other agencies prior to approving a Plan of Operation where threatened or endangered species are present.

The following comments are from Dave McCracken of the New 49’ers:

Existing 36 C.F.R. Part 228 mining regulations allow the District Ranger to use his or her own discretion, based upon the best advice of his or her staff and other experts, to decide what type of mining activity will likely cause a significant disturbance of surface resources. A Ranger’s determination of a significant disturbance requires a formal Operating Plan to be filed by the miner, which will now trigger the lengthy consultation process with other agencies.

Generally, District Rangers have determined that hand-mining and suction dredging activity conforming to state regulations do not rise to the level of a “significant disturbance.”

On April 29, the Karuks filed a Motion for Summary Judgment and Injunctive Relief asking Judge Saundra B. Armstrong in Oakland, California, to decide otherwise. The Karuk’s position is that without first going through a full consultation process, the USFS is not qualified to determine there will not be a “significant impact” upon any existing listed species. Therefore, they argue, the judge should prohibit the USFS from allowing any type of mining activity in Riparian Reserves in the Klamath National Forest without requiring a plan of operations, reclamation plan, and reclamation bond, preparing an environmental assessment or environmental impact statement, which reviews the individual and cumulative impacts from proposed mining in Riparian Reserves, and going through an extensive consultation process with other federal agencies pursuant to the Endangered Species Act.

In short, the Karuks are asking the judge to overturn existing Section 228 regulations.

As the Karuks do not distinguish any difference in their summary judgment motion or other moving papers in the lawsuit between hand-mining (panning, etc.) from mechanized mining (bulldozers), we are presuming they are asking the judge to stop all forms of mining or prospecting activity in Riparian Reserves in the Klamath National Forest.

The hearing for the Karuk’s motion is currently set for June 21 of this year, and the judge has agreed to issue her decision before July 1. The New 49’ers are actively working on a response opposing the Karuk’s motion for summary judgment.

The decision on this motion will likely have an impact upon other national forests on the west coast of the United States.

In view of the USFS concession concerning the requirement of consultation to support any Operating Plan, we do not feel very comfortable that it will mount an adequate defense to this latest motion, either. I think it is safe to say that much of the small-scale mining as we know it in America hangs in the balance on this one decision that will happen in just a few short weeks from now.

Naturally, these proceedings have caused different USFS land managers to be uncertain how to administer small-scale mining programs. This slows down the process, or stops it altogether in some places.

I feel it is important to point out that the attack against mining is coming from organizations outside of government that do not want to see miners in the National Forest anymore. The USFS is caught in the middle. Under the circumstances, there is no clear-cut correct answer to anything. So we need to patiently wait out the system and keep our sights on the long term. The mining law has always vindicated the rights of miners. It is not over until it is over! Let’s keep our chins up and be effective.

With a little luck, Judge Armstrong will decide in our favor and give the USFS some direction about how to exercise the discretion granted to them by Congress. That could actually make things better for us.

The legal fund needs replenishment. Without access to legal funds, we could not counter anti-mining activists in court. So we must replenish the fund as it gets used up. Just a little help from everyone is all that it takes to keep us in the game with really good attorneys. Fortunately, to date, our continued requests for replenishment have been answered by members and other concerned people within the industry.

Once again, I am requesting anyone and everyone who is able to please send in a $10 donation to help replenish the legal fund. Checks can be made out to New 49’ers Legal Fund, PO Box 47, Happy Camp, CA 96039. The office (530-493-2012) will also process credit or debit cards, or receive payment through PayPal. There are also Paypal “donation” buttons on the New 49er’s message forum as well as the Alaska Gold forums for your convenience.

Thanks for whatever you can do to help. We would not be able to do this without your support. Together, we are defending against one of the most serious threats to our industry that has been mounted in a very long time.

Court documents related to this case can be found on our website, www.icmj.com, in the “Additional Resources” section—scroll down to “Court Cases.”

by Staff

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