Legislative and Regulatory Update
November 2002 by Staff
• “Sacred” Indian sites and Glamis Gold
Sacramento, California (AP)—Governor Davis vetoed a bill that would have markedly increased American Indians’ ability to protect tribal land.
The bill would have required local governments to notify a tribe of proposed construction within 20 miles of a reservation and protect from development sacred sites that tribes have used for generations.
It was opposed by developers and business groups that said it was so broad it would have granted tribes veto power over both private and public land, potentially delaying or blocking public improvement projects, home building and mining-related projects.
“There is no doubt more must be done to protect sacred sites. Unfortunately, this bill is a flawed attempt to do that,” Davis said in vetoing the main legislation hours before his midnight deadline to act on bills sent to him in the closing days of the legislative session.
The bill, authored by state Senator John Burton, was spurred by opposition from the Quechan Nation to plans by Glamis Gold Ltd., to build a gold mine on federal land near the tribe’s reservation near the Arizona-California line. The Imperial County land includes Indian Pass, which the Quechan Nation claims is a site of religious ceremonies.
But Davis did sign separate legislation by Senator Byron Sher designed to derail the Glamis Gold project. Among other provisions, it bars metallic mining within a mile of any Indian sacred site unless certain conditions are met.
Davis said in his veto message that he had directed his administration “to pursue all possible legal and administrative remedies that will assist in stopping the development of that mine.”
A provision in the Senate’s annual Interior Department spending bill would bar the administration from spending any money to continue evaluating the Glamis proposal.
Davis also signed a third bill that makes it a misdemeanor punishable by up to a year in jail to deface or destroy an Indian historic, cultural, or sacred site that is listed or may be eligible for listing in the California Register of Historic Resources.
The Interior Department recently revived the mine proposal, which had been blocked by the Clinton administration. A lawyer for the tribe, Courtney Coyle, said the ruling was intended to bolster the project against potentially unfavorable state action, an assertion dismissed by spokesmen for Glamis Gold and the government.
• Regulatory Flexibility Act
President Bush signed Executive Order 13272 that requires all federal agencies to review their policies to ensure compliance with the Regulatory Flexibility Act (RFA). The Executive Order requires agency heads to prepare a written review of their policies and procedures and to submit the review to the Small Business Administration Office of Advocacy within 90 days.
The RFA mandates that agencies minimize the economic impact on small entities when establishing or changing regulations.
The Regulatory Flexibility Act of 1980, and the Small Business Regulatory Enforcement Fairness Act of 1996, are good tools that are under- utilized by miners and mining-related businesses.
Learn more about these acts at www.sba.gov/advo/laws/regflex.html or by contacting the Small Business Administration Office of Advocacy at (202) 205-6533.
• Miner acquitted
In the August 2002 issue we reported on the case of Jim Creegan. He was the Washington miner charged with using a suction nozzle greater than 4 inches in diameter without a reducer, and failure to use or maintain an approved fish guard on his pump intake. Washington Dept. of Fish and Wildlife (WDFW) officers cut the hose off Creegan’s dredge after they decided that the manufacturer-supplied intake measured 4.1 inches! A damaged fish guard had already been removed by Creegan and a replacement part was near the unattended and non-operating dredge when the officers conducted their investigation. While it certainly appeared that Creegan was making a good-faith effort to comply with the laws of the State of Washington, the officers plowed ahead with their case against the miner.
After countless delays, the judge in this case ruled that the search and seizure of Creegan’s equipment was illegal, and any statements made by him were inadmissible because the officers failed to read him his Miranda rights. Creegan was acquitted before the regulatory issues were addressed. While we are certainly happy for him, we are disappointed that the charges were dismissed before the court was able to hear arguments regarding the lack of scientific basis for the nozzle and screen restrictions.
At press time, Creegan was still waiting for his confiscated equipment to be returned.
• Environmentalists at it again in Oregon
Radical environmentalists are pushing for another wilderness study area in southeastern Oregon after most of their previously requested withdrawal was canceled due to the efforts of the Waldo Mining District, the Oregon Independent Miners, and miners everywhere. The latest request, this time by the Oregon Natural Desert Association, is to designate 363,000 acres in eight areas of southeastern Oregon as wilderness study areas.
They claim to have surveyed and mapped the proposed areas as they walked and recorded scenic views and native cultural sites with 13 volunteers this past summer. That would mean each and every volunteer was relied on to accurately survey and map an area of over 43 square miles, or roughly an area equal to the city of Salem, Oregon, in one summer!
• Mine owners want high court to overturn ruling
Helena, Montana (AP)—Owners of an open pit gold mine near Whitehall are hoping the state Supreme Court agrees that a costly reclamation project isn’t necessary, asking for the high court’s first evaluation on a portion of Montana’s Constitution.
A lower court ruled earlier this summer the mine must immediately backfill the pits.
Alan Joscelyn, a Helena lawyer for Golden Sunlight Mines, Inc., filed an appeal earlier this week before the Montana Supreme Court.
The lower court’s order, from District Court Judge Thomas Honzel of Helena, also asked the state to raise the company’s reclamation bond to reflect what it would actually cost to reclaim the site, if it should close.
The case dates back 10 years, when five environmental groups sued to force the Montana Department of Environmental Quality to make the mine backfill the pits.
The agency had previously determined that the company couldn’t afford backfilling the pits, even though it agreed such reclamation was a good idea.
Environmental groups are worried the challenge before the state Supreme Court could end up nullifying part of the Constitution that reads, “all lands disturbed by the taking of natural resources be reclaimed.”
“If the Supreme Court overturns the ruling, it would mean the provision in Montana’s Constitution that all mine lands be reclaimed will be a simple, hollow promise with no real meaning,” said Jim Jensen, executive director of the Montana Environmental Information Center.
The company has continued mining throughout the legal challenge. In early June, Golden Sunlight got permission to mine an extra 600,000 tons of ore beneath the current pit.
• More of the same from the EPA
The EPA, in cooperation with Mexico’s environmental agency, is laying the groundwork for more regulations along the US/Mexico border in what they call The Border 2012 Program. Additional “Regulation and Policy Development” is one of the “tools” the agreement will utilize to promote the latest buzzword—sustainable development. A stated goal is to “provide leadership for the three types of coordinating bodies—Regional Workgroups, Border-wide Workgroups and Policy Forums—and their respective Task Forces. All of the coordinating bodies will have broad-based stakeholder participation by including non-government organizations (read as professional environmental lobbyists), community-based organizations, private sector representatives, academic institutions, local, state, and tribal representatives, bi-national organizations and organizations with expertise in a particular media or geographic area.”
The area encompasses all lands and towns within 62.5 miles of the border.
The EPA’s press release states they will work with Mexican authorities to address environmental and public health issues with the goals of environmental protection, conservation, sustainable development, and undue degradation of natural resources.
The full text is available at: www.epa.gov/usmexicoborder or by calling 1-800-334-0741.
Comments are due by Nov. 15, 2002, and can be sent to: EPA, David Fege, 610 West Ash St., Suite 905, San Diego, CA 92101, or faxed to (619) 235-4771.
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