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Legislative and Regulatory Update

July 2004 by Staff

• Enviros lose in Utah, but is this a win for miners?
The Supreme Court rejected an effort by Southern Utah Wilderness Alliance (SUWA), an environmental group, to force the Bureau of Land Management (BLM) and the Bush administration to limit off-highway vehicle (OHV) use in Utah wilderness areas. The decision will have other implications for the off-road community and mining.

SUWA argued that BLM had an obligation to protect potential wilderness areas. The group tried to force BLM to take action with the lawsuit.

The Administrative Procedures Act allows lawsuits to compel non-discretionary actions that have been unlawfully withheld or unreasonably delayed. The OHV groups convinced the District Court that SUWA’s claims went far beyond this standard and were really attempting to dictate the everyday activity of the BLM. Thus, the case focused on the degree to which private parties dissatisfied with government action can sue the agency under an alternate “failure to act” theory.

The good news is that, in a 9-0 decision, the Supreme Court said that land managers are allowed to use their expertise to make discretionary decisions when dealing with management decisions regarding public lands. For now, it amounts to more public access and multiple use of the public lands.

The bad news is that this discretionary power could lean in the opposite direction depending upon the administration in power in Washington, DC.

“We’ve about had it in Utah with environmental groups trying to micromanage, through the courts, decisions that should be left to the professionals on the ground,” said Senator Orrin Hatch. “Today, the Supreme Court has said, ‘Enough is enough, let’s let the professionals do their jobs.’”

Justice Antonin Scalia said SUWA’s argument would insert the court into the day-to-day operations of the agency and “would divert BLM’s energies from other projects throughout the country that are in fact more pressing. While such a decree might please the environmental plaintiffs in the present case, it would ultimately operate to the detriment of sound environmental management.”

“We have raised these arguments with limited success since the mid-1990s, and it is reassuring to see the Court has ultimately agreed with our analysis,” said lawyer Paul Turcke, lead counsel for the OHV groups. “This case was never about limiting legitimate review of formal agency decisions, but will clarify that disgruntled and well-funded special interest groups cannot interfere with the ongoing administrative process simply by claiming the agency is failing to act.”

• BLM slates July meetings for Cortez Gold Mine
BLM will hold public meetings on the draft study of Cortez Gold Mines’ proposed expansion in Crescent Valley, Nevada.

The meetings are scheduled for 6-8pm on July 13, 2004, at the Crescent Valley Community Center, and 6-8pm on July 14, 2004, at the Battle Mountain BLM office.

Cortez proposes to deepen and expand the existing open pit in stages, add a waste dump, increase the size of heap leach pads and expand waste rock dumps. The plan also calls for backfilling most of the open pit said Pam Jarnecke, environmental coordinator for BLM at Battle Mountain.

Cortez has ordered new 400-ton trucks and plans to hire more workers toward the end of the year for the expansion, pending final BLM approval.

“Every time they drill, they find more gold,” Jarnecke said.

The public comment period on the draft supplemental EIS is currently open. Written comments and requests for copies of the draft document may be submitted to Pam Jarnecke, environmental coordinator, Bureau of Land Management, 50 Bastian Road, Battle Mountain, NV 89820. Pam Jarnecke may be reached at (775) 635-4144.

Comments must be postmarked by the close of business July 25, 2004.

• ESA comments needed
Public comment periods are currently open for the following critical habitats, threatened or endangered species:

—California red-legged frog, critical habitat, affecting most counties in California. Comment period closes July 14, 2004. On the Internet at www.regulations.gov/ freddocs/04-13400.htm

Email comments to: fw1crlf@r1.fws.gov

Send written comments to: Field Supervisor, Sacramento Fish and Wildlife Office, US Fish and Wildlife Service, 2800 Cottage Way, Suite W. 2605, Sacramento, California 95825.

—Take permits for threatened or endangered species for all states. Comment period closes July 26, 2004. On the Internet at www.regulations.gov/freddocs/04-11741.htm

Email comments to: pprr@fws.gov

Send written comments to: Chief, Division of Consultation, Habitat Conservation Planning, Recovery and State Grants, US Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203.

—Fish Slough Milk-vetch, critical habitat in Mono and Inyo counties, California. Comment period closes August 3, 2004. On the Internet at www.regulations.gov/ freddocs/04-12658.htm

Email comments to: fw1fsmv_pch @r1.fws.gov

Send written comments to: Field Supervisor, Ventura Fish and Wildlife Office, US Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003.

—Munz’s onion, critical habitat in Riverside County, California. Comment period closes August 3, 2004. On the Internet at www.regulations.gov/freddocs/04-12657.htm

Email comments to: fw1cfwoalmu @r1.fws.gov

Send written comments to: Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, CA 92009.

• NMFS hatchery policy angers ESA critics
The National Marine Fisheries Service (NMFS) announced they will grant Endangered Species Act (ESA) protection to some hatchery-raised salmon, despite a recent court ruling that requires them to count hatchery fish when considering threatened or endangered listings.

The listings impact many different groups in the western states. Dredgers and placer miners face seasonal restrictions to avoid disturbing salmon breeding grounds and migration patterns.

Several groups had accused NMFS of underestimating population counts and using artificially low numbers to justify ESA listings for wild salmon by not including hatchery-raised fish even though no genetic difference can be proven.

NMFS officials said they will not base listing or delisting decisions solely upon the abundance of fish within a given evolutionary significant unit (ESU). Other considerations will include geographic distribution, stock genetics, and whether stocks are reproducing at sustainable levels.

“Numbers alone will not be acceptable,” said NMFS Northwest regional director Bob Lohn. “In assessing the status of an ESU, NMFS will apply this policy in support of conservation of naturally spawning salmon and the ecosystems upon which they depend.”

Russell Brooks of the Pacific Legal Foundation was angered by Lohn’s comments. He promised that if the policy is adopted after 90 days, NMFS can expect another round of legal action, this time to explain how the new policy meets the judicial order to include hatchery fish in ESUs.

“I’ll just drag Bob Lohn right back into court where I beat him once already, and I’ll beat him again,” said Brooks, one of the plaintiffs in the original coho lawsuit. “And hopefully the second time around they’ll be a little more humble and perhaps they’ll even comply with the law.”

Lohn stated his agency will re-evaluate listings for at least two stocks later in the year—Oregon coastal coho and mid-Columbia River steelhead. Another stock that may warrant delisting is Snake River fall chinook, which according to NMFS’s documents is benefiting from improvements in hatchery practices. NMFS documents note that Lyons Ferry hatchery releases have contributed to high returns in recent years.