July 2019 by Scott Harn
I’ve been reporting in this column on our numerous trips to Washington, DC, as Clark Pearson (Public Lands for the People) and I have sought to obtain regulatory certainty and regulatory relief for miners with a series of proposed amendments titled “Critical Minerals: National Security Amendments to the NDAA.”
“NDAA” stands for “National Defense Authorization Act.” Including our proposed amendments in the NDAA seems to be the only viable path forward while the US House and Senate are controlled by different political parties.
There are ten sections in our proposed legislation, dealing with everything from fixing Forest Service Travel Management Plans for mining claim access and excluding one-man or family operations from MSHA reporting requirements, to clarifying EPA and Army Corps definitions of “incidental fallback” so suction gold dredgers can get back to work.
There are two sections Congressman Gosar believes he might be able to get through Congress using other means and we continue to work with his office.
In addition to all the meetings with Senate and House staffers, we also had meetings with Trump administration appointees at the Forest Service, Bureau of Land Management, Fish and Wildlife, and the EPA, and with several of President Trump’s advisors. We’ve found that many of the folks in the current administration are willing to listen and willing to address mining-related issues that have been festering for years once they understand the full extent of the problems.
While progress with Congress has been slow, the Trump administration has taken the lead to start making needed changes at the Department of Interior and US Department of Agriculture to support miners, using quite a few of our suggestions and even some of the language Clark and I provided.
Public Lands for the People sent a newsletter to their members recently that summarized this progress. Rather than rewrite it, I’m going to include much of it here.
From the PLP Newsletter:
The much-anticipated “Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals” has now been released by an interagency report. This strategy was set in motion by President Trump’s Executive Order 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” on December 20, 2017. The Executive Order directs the Secretary of Commerce, in coordination with heads of selected executive branch agencies and offices, to submit a report to the President that include key points to help the ailing U.S. mining industry and the U.S. minerals supply chain.
This report focuses on 6 call to action items, 24 goals, and 61 recommendations that describe specific steps that the federal government will take to achieve the objectives outlined in Executive Order 13817. Call to action number 5 is of the most importance to PLP and our members because this section will benefit the average miner and public lands user who embraces multiple-use access principles upon our public lands. PLP’s Clark Pearson and the ICMJs Prospecting & Mining Journal’s Scott Harn delivered many educational materials (and complaints) in multiple meetings with federal agency department heads over the course of two years covering many of the points now called for in this new Federal Strategy report.
We wish to thank our membership and our financial sponsors that allowed us to make these important trips to DC so that the decision makers could better understand our specific needs in the over-arching quest for regulatory relief.
The following subparts of call to action number 5 we wish to highlight and are as follows:
5.2 Revise land-use planning processes to require that Surface Management Agencies (SMAs) designate and classify lands based on whether they are prospectively valuable for mineral development.
5.3 Revise policies to ensure Federal lands identified as prospectively valuable for exploration or development of mineral resources are properly considered before they can be recommended for withdrawal or encumbered with a land-use designation that would restrict the development of these resources. (DOI [BLM] and USDA [USFS]; 1 year)
5.4 Review existing withdrawals, land-use designations, and planning allocations and recommend appropriate measures to reduce unnecessary impacts that they may have on mineral exploration, development, and other activities. Any analysis performed should quantify and qualify the economic and national security implications of: reducing the size of an existing withdrawal, reducing the area affected by a land-use designation, changing planning allocations, or revoking an existing withdrawal. When deciding the order in which to review existing withdrawals, restrictions, or allocations, land management agencies should prioritize consideration of areas with the greatest potential for discovery of critical minerals. (DOI [BLM] and USDA [USFS]; 2 years)
Mining claim holders may be guaranteed reasonable access across Federal lands to their mining claims by law. However, the term “access” is not clearly defined under existing policies and this leads to problems with the implementation of travel management plans. Travel management plans identify which roads or trails are open to motorized vehicles, off highway vehicles, and identifies areas that may be closed altogether and blocked from motorized use. However, these plans do not adequately account for the importance of access to lands for mineral development. Accordingly, SMA’s travel management plans should be created or amended to prioritize access for mineral exploration. Further, existing infrastructure should be maintained or improved to allow access to mineral resources. Maintaining infrastructure may be the responsibility of the SMA or the private sector and depends on the purpose of the infrastructure.
5.5 SMAs should create or amend travel management plans to facilitate access for exploration and development of minerals to the extent practicable. When deciding the order in which to amend or create new travel management plans, land management agencies should prioritize consideration of areas that contain the greatest critical mineral potential. (DOI [BLM] and USDA [USFS]; 1-2 years)
Note: Currently, there is no agreement between federal and state regulatory agencies, industry, non-governmental organizations, and the Government Accountability Office on a uniform definition for time spent reviewing, processing, and issuing permits for prospecting, exploring, and developing a mine or mine site. Accordingly, land-use management and permitting agencies do not have suitable tools to analyze the performance of permitting processes. It is PLP’s opinion that this will most likely usher into play federal pre-emption of conflicting state prohibitions that is currently on display in California and Oregon and resolve them in the miner’s favor absent real science.
5.6 Develop a publicly accessible online system to track milestones for mining projects, including the time it takes State and Federal agencies to review, process and issue permits. (DOI [BLM] and USDA [USFS]; 1-2 years)
5.7 Update agency NEPA processes to streamline NEPA analysis with an emphasis on providing timely processing of mining Plans of Operations. (DOD [U.S. Army Corps of Engineers (USACE)], DOI [BLM], and USDA [USFS]; 2-4 years)
5.10 Revise BLM and USFS procedures to allow for the incorporation and validation of existing environmental review and analysis for mining projects completed by States and other entities. (DOI [BLM] and USDA [USFS]; 1-2 years) (I think we know what State reviews are Not Valid)
5.11 Provide recommendations for revisions to 43 CFR 3809, Surface Management, and to 36 CFR 228 Subpart A, Locatable Minerals, to streamline and reduce redundant reviews. (DOI [BLM], USDA [USFS]; 1-2 years)
5.12 Harmonize regulations that affect surface mining. (DOD [USACE], DOI [BLM], and USDA [USFS]; 1-2 years)
5.14 Execute MOUs for the review of Plans of Operation for mines with mixed ownership status that includes timelines and procedures for participation and dispute resolution. (DOI [BLM] and USDA [USFS], in coordination with State agencies; 1-2 years)
There you have the top ten highlights from the guidance report, but there are many more. Overall, PLP is very pleased with the direction of this report and the upcoming results through de-regulation that will follow. America will be stronger and more secure without sacrifice to the environment. The full report can be viewed online.
Q: What does all this mean?
A: New, revised travel plans must consider unpatented claimholders and the mining industry must be accommodated in revised mineral regulations that work for us and are truly reasonable, not guided by arbitrary bureaucratic terms that can be written by the Sierra Club and weaponized against the miner.
And finally, it potentially means—for those miners in California and Oregon—that the Trump administration may move to displace prohibitive state regulations that cannot be harmonized or validated with respect for, or in accordance with, a federal preemption mining claim located upon federal managed land. Now wouldn’t that be great!
PLP expects a draft of the new mineral regulations to come out next year. PLP will be engaged in this upcoming rule cleaning process in DC and ICMJs Prospecting & Mining Journal will report on it in greater detail in the coming months.
PLP’s proposed amendment to the National Defense Authorization Act (NDAA) called “Critical Minerals: National Security Amendments to the NDAA”, for the time being, has taken a back seat to Congressman Amodei’s reintroduced proposal on Critical Minerals. In the meantime, we are encouraged by support from the leadership at the Western Caucus that two of our amendments (sections 104-105) will be integrated into a compatible bipartisan bill in the near future. These two sections are to clarify EPA “incidental fallback” and to preclude MSHA mine owner/operators with no employees from being treated like large corporate entities. They appear to be the least controversial, yet will help most small miners in the process.
Also, PLP has renewed our push at the federal EPA to get a resolution on “incidental fallback” so the California State Water Resources Control Board, Oregon’s DEQ, and the federal regional offices of the EPA do not require 402 permitting for suction dredge miners because the activity fits squarely within this exemption. This will squash the state-rigged game and torture cycle of requiring a permit and then not issuing one.
If you have not already signed on to the support petition we have on our website, please do so. The Critical Minerals amendments are a must read and should go down as the most important piece of legislation to help the mining industry in a very long time.
PLP’s petition drive is online at: www.publiclandsforthepeople.org/take-action/ where you can read the proposed legislation and support material and sign our petition to US Senators and Representatives. Thousands of signatures will prove to the legislators the groundswell grassroots support is there and convince them that the time to act is now.
ICMJs Prospecting and Mining Journal also has it available for viewing and comment at: www.icmj.com, and has faithfully documented our progress in Washington, D.C. The ICMJ has taken the lead to receive individual miner and mining association endorsements in support of the “Critical Minerals: National Security Amendments to the NDAA” on their Facebook page or sending to their mailing address:
P.O. Box 2260
Aptos, CA 95001
You can always read the latest update on our trips to DC online at www.icmj.com.
Your PLP Board of Directors
As you can see from items highlighted above, we have an administration willing to make the changes necessary to get miners back to work. Some of the regulatory changes are scheduled to take place in the next 1-2 years. We will certainly keep you posted when these items are published in the Federal Register and hope you will take the time to submit your constructive comments.
Public Lands for the People has agreed to support the US Supreme Court appeal with financial assistance and with the filing of an amicus brief. (We here at the Mining Journal have also agreed to participate in the amicus brief.)
If you need more proof that having an organized Mining District can help you, look no further than the recently proposed Methow Headwaters Withdrawal in north-central Washington State.
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…
... officials with BLM have been impressed by MMAC’s professional approach and consistency.
Toward the end of this summer, we expect another Federal Register notice will be published that deals with Forest Service mining regulations.
We have been playing defense for 100% of the game, and now we are finally playing some offense.
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