PLP To Address Needs Of Small Miners With Proposed Amendment
March 2018 by Scott Harn
On February 1, Public Lands for the People (PLP) members Ernie Peachay and Clark Pearson attended a meeting with US Senator Dean Heller’s staff to discuss Senator Heller’s proposed legislation (S 145) called the “National Strategic and Critical Minerals Production Act,” presently in the Senate Energy and Resource Committee.
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.
Ernie and Clark provided specific legislative written solutions to clear the present obstacles miners face. Some of the topics covered were: President Trump’s recent Executive Order on domestic mineral production; the EPA and State Water Board not observing Clean Water Act suction dredge exemptions (incidental fallback); NEPA abuse by the agencies/courts; MSHA abuse against owner operators with no employees; Forest Service abuses; and the miner’s right of self-initiation under the spirit of the Mining Law.
Ernie and Clark addressed at depth the 2012 Karuk v. Forest Service (in banc) case where the 9th Circuit Court of Appeals overturned a 30-year precedent that provided reasonable regulations in relation to the National Environmental Policy Act (NEPA), creating legislation from the bench for which the present version of S 145 does not address, but needs to.
Dean Heller’s office accepted Ernie and Clark’s guidance research and specific language in the form of an amendment to facilitate this material dovetailing into S 145. PLP will have a follow up meeting with Dean Heller’s legislative director in Washington, DC, in mid-March.
The proposed amendment addresses problems with NEPA; timely review of plans and notices and approval by operation of law if the agency fails to meet the deadline; MSHA exemptions for small operators; land designations that are detrimental to mining including re-opening closed or designated lands with the approval of a competent geologist; and establishes minimum qualifications for personnel who review notices or plans.
It also re-establishes previous thresholds for “casual use,” places exclusive authority over mining with the Bureau of Land Management (BLM), and exempts suction gold dredging from state regulation.
We talk with miners on a weekly basis who are frustrated with the US Forest Service and their lack of knowledge and consistency in regulating the small-scale miner, and with miners who have difficulty dealing with BLM employees in some jurisdictions. Along those same lines, many states impose draconian restrictions on small-scale miners which prevents them from moving from exploration to the production stage. The use of the word “exclusive” in this amendment is specifically to remove states and other federal agencies (like the US Forest Service) from interfering with mining operations, and the wording in the amendment regarding “casual use” can help to remedy these conflicts for many of these small operations.
There is also specific language to clarify that suction gold dredging does not involve the “addition of a pollutant” under the Clean Water Act and “incidental fallback” is not covered under the Act.
While the proposed amendment is only about five pages, it is too lengthy to include here in its entirety. For this reason, we have made this article available to anyone for free on our website, and the online version of this article includes a link to the entire amendment (below).
The amendment was written by Clark Pearson of PLP and it’s immediately obvious that a lot of thought and effort was put into the details. I’m scheduled to travel to Washington, DC, with Clark in mid-March for further meetings with Senator Heller regarding this amendment, and we plan to meet with additional members of Congress in both the Senate and House to gain support for the amendment.
If you wish to support the efforts of PLP, I encourage you to visit www.publiclandsforthepeople.org and click on the “Join/Donate” or “Membership” link. In addition, we offer the option to support PLP via our website at www.icmj.com. Subscribers can make a contribution to PLP or receive a discounted yearly membership—you can join PLP for a year for the discounted price of $25 and we contribute an additional $10 so you receive a full, one-year PLP membership.
I was privileged to travel to Washington, DC, twice in 2017 with members of the Minerals and Mining Council. The main points made by members of Congress during these trips were that we have to be patient and we have to be persistent. Timing matters. There is constant chaos in DC. Members of Congress have dealt with pressing issues related to immigration, tax reform, possible election interference, and more. It takes patience and persistence to get a bill or amendment passed in Congress, and we are committed to continuing this effort until the timing is right and we see results.
A two-pronged approach is necessary to restore suction dredging; federal preemption needs to be established as addressed above via petition; and clarification from the EPA is needed to establish that no Section 402 permit is necessary when there is no “addition” of a pollutant.
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