January 2019 by Scott Harn
In early January, 2019, I’ll be heading back to Washington, DC, with Clark Pearson of Public Lands for the People. It will be our fourth trip to “the swamp” in the past 24 months.
We will be building on past successes, which began back in 2015 with a meeting with General John F. Kelly, who later became President Trump’s Chief of Staff. America’s reliance on foreign entities for critical and strategic minerals was discussed, along with the need for a bill to include critical and strategic minerals as part of America’s national defense strategy.
The National Mining Association and American Mining and Exploration Association were also warning members of Congress about the dangers of relying on unfriendly countries like China and Russia for critical minerals.
During previous trips, Clark and I met with influential members of the House, Senate, Forest Service, Bureau of Land Management, Mine Safety and Health Administration, Environmental Protection Agency, and the President’s Council on Energy and the Environment. We discussed critical and strategic minerals and the need for regulatory relief for miners. We also presented a series of “Small Miner Amendments” written by Clark to provide this regulatory relief.
Some of our collective efforts have paid off.
On December 20, 2017, President Trump signed Executive Order 13817, which directed the federal government to create a list of critical minerals and to come up with a plan to reduce America’s dependency on foreign entities. A list was published by the US Geological Survey in May 2018.
On August 13, 2018, President Trump signed the National Defense Authorization Act (NDAA), which, for the first time, recognized critical and strategic minerals and metals as an essential part of our national defense. We were in DC and spent five days in meetings with several key Senators in the weeks leading up to passage of the NDAA. Our Small Miner Amendments were considered for inclusion in the NDAA, but staffers wanted more time to review our proposed regulatory changes. We were so close we could taste it!
Additions to the NDAA are made every year. The House submits a version, and the Senate writes their own version.
We established relationships in both the House and Senate, but we will be focussing on the Senate side because Democrats will be taking control of the House but Republicans added to their majority in the Senate.
We were very close to getting a few of our proposals into the last NDAA. We’ve learned a lot during these trips about how things work (and don’t work) in DC. The time is right to get at least a portion of our proposed amendments through Congress in the next NDAA cycle.
This time, we are starting a little earlier. We originally planned to return to DC in December 2018, but we chose early January to allow new members of Congress to arrive and new committee assignments to be made. We’ve received assistance in setting up meetings from a gentleman who was in charge of public land issues during the Trump transition, and these introductions have been invaluable. Additionally, we have a new helper.
It turns out a fellow miner who has been searching for regulatory relief for his small operation has a personal relationship with one of the key Senators with whom we has planned to meet. This fellow miner has briefed the Senator on our Small Miner Amendments and helped facilitate a meeting for us to discuss bill sponsorship.
We have additional meetings scheduled with those Senators who expressed interest in supporting the Small Miner Amendments during the last NDAA cycle, along with a follow-up meeting with the Forest Service regarding 412 complaints from our readers that we delivered to a Forest Service deputy director back in June.
Despite the inclusion of critical minerals in the NDAA, it still can take more than five years to get an approved Plan of Operation from the US Forest Service for a mere five acres; a larger project can take ten years, fifteen years, or more. The Forest Service has blocked off historic roads and routes necessary for exploration and continues to ask for a Notice or Plan by labeling trivial activities as a “significant disturbance.” This is unacceptable, and we’ve asked the Trump Administration to assist us to make sure these complaints are addressed.
We are heading into 2019 with a cautiously optimistic view. We feel we are very close to obtaining regulatory relief for miners, and believe this NDAA cycle will prove fruitful.
On another, related note, I want to mention a recent court decision that demonstrates why we are seeking relief at the federal level rather than the state level.
In United States of America v. State of California, the federal government challenged California’s state law that restricted the transfer of federal lands.
California passed Senate Bill 50 in 2017, which sought to require the federal government to give the California State Lands Commission the first right of refusal over government proposals to sell federal land. The Trump Administration sued, and Judge William Shubb of the US District Court for the Eastern District of California recently ruled the California law violated the US Constitution by interfering with the federal government’s right to dispose of federal land.
It’s a similar supremacy argument to the one made in Rinehart v. California related to suction gold dredging that the US Supreme Court refused to review. In that case, California essentially banned miners from working their federal mining claims by requiring a state permit for suction gold dredging but refusing to issue such a permit. A Department of Justice attorney—a holdover from the previous administration—backed California and argued there was no federal supremacy in that case. A BLM official later admitted to us that they made a mistake and federal supremacy should have been claimed in the briefs submitted to the Supreme Court, but it wasn’t caught in time.
We believe, by providing regulatory relief at the federal level, we can enact changes that will withstand challenges at the state level and win out under the supremacy clause.
And last but not least, we need your continued support. When we go into these meetings with members of Congress, they want to know that they have the support of their constituents when they consider the Small Miner Amendments. I’ve already received letters of support from some of our readers, which I will be taking with me to DC, and I thank you for those.
PLP is developing an online form so miners can easily sign on to support the Small Miner Amendments. It should be available soon. When it comes online, I will provide links to it on our website at www.icmj.com and I’ll post it to social media. I’m happy to accept letters of support the old-fashioned way for those of you who are computer-challenged. Just drop me a letter or postcard that says something similar to:
“Miners across the US are in need of regulatory relief, especially in the area of critical and strategic minerals and metals to improve our national security. I support the Small Miner Amendments to the NDAA.”
Be sure to include your name and hometown. Your support is crucial in this effort.
If you haven’t yet read the Small Miner Amendments to the NDAA, you can find them on our website at www.icmj.com or at www.public landsforthepeople.org. PLP provided a brochure insert in this issue that summarizes the proposed Small Miner Amendments. It also includes a PLP membership form.
In the meantime, we will continue our multi-pronged approach to seek regulatory relief at the federal level while supporting those court cases that are built on a strong legal foundation.
Is there any hope for a solution? Yes, there is, and we’ve been working with Public Lands for the People, the Minerals and Mining Advisory Council, attorney James Buchal and others on that solution.
We’ve heard from miners in Arizona about federal agencies closing off historic roads that provide access for miners, and we need your input.
Many miners have failed to exercise their rights by using the power of their Mining Districts and laws that are already on the books, such as 43 CFR 9712.1, which states…
…what I’d like to focus on in this update is the assistance they provided to a suction gold dredger in Idaho being harassed by an environmental group.
Within these districts, some of the roads and trails have been reopened for access, critical habitat designations have been scaled back, and a few Mining Districts were completely removed from proposed withdrawals.
It's a proven civil remedy to put an end to harassment by notifying a person who is either overstepping their authority, or failing to act as required, that they will be sued personally for an act or omission.
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