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Legislative and Regulatory Update

November 2001 by Staff

• Forest chief asks Norton to end Oregon mining moratorium
Medford, Oregon—The chief of the Forest Service has asked Interior Secretary Gale Norton to end a two-year moratorium on new mining claims in southern Oregon instituted in the closing days of the Clinton administration.

In a recent letter, Forest Service Chief Dale Bosworth told Norton that public response has been strongly opposed to the closure of new mining claims on 1.15 million acres of federal land, including areas being discussed as a possible new 700,000-acre Siskiyou-Wild Rivers National Monument.

Existing laws, including the Endangered Species Act, are sufficient to protect the environment, as well as endangered fish and wildlife, Bosworth wrote.

Bosworth said the Forest Service is looking at the cumulative effects of mining and recreational rock collecting, and will propose withdrawal from future mining of specific areas of the Siskiyou National Forest (SNF).

Under the advice of outgoing Interior Secretary Bruce Babbitt, President Clinton imposed a two-year moratorium on new mining claims and a review of more than 1,000 existing ones in the area covering the Siskiyou National Forest and adjacent US Bureau of Land Management lands.

Babbitt claimed that small suction dredges damaged streams that are home to young salmon and steelhead. Babbitt said he ran out of time before the end of his term in office to hold the public debate he had promised before trying to establish another national monument. Babbitt apparently didn’t review the 1999 US Geological Survey study of large suction dredges which indicated there was no lasting damage from dredges as large as ten inches. This study is available on the ICMJ website under the heading of “Additional Resources.”

“It was definitely unwarranted to start with,” said Lisa Barton, owner with her husband, Bob, of the Armadillo Mining Shop in Grants Pass, which supplies local gold miners. “But we’re hoping they don’t propose any more withdrawals.”

The Waldo Mining District (WMD) recently sent a Notice of Non-Compliance to Siskiyou National Forest Supervisors, and Harv Forsgren of the Pacific Northwest Region of the US Forest Service. The WMD outlines numerous statutes ignored or violated by SNF Supervisor Jack Williams, District Ranger James Fincher, and USFS Forester Forsgren.

Tom Kitchar, WMD president, stated that Williams sent a letter to prospectors in March of 2001, notifying them that all of the SNF was subject to a mineral withdrawal. Kitchar, through use of the Freedom of Information Act (FOIA), found that the withdrawal left portions of SNF open to prospecting, and more importantly, that at least some of the public officials were aware of this.

Kitchar states, “They were aware of this before they sent out letters declaring the entire area was closed. They had hundreds of Plans of Operation awaiting approval (for areas outside the mineral withdrawal) and they didn’t act on a single one of them. They were perfectly legal applications.”

Title 36 CFR 228.5(a) states that a Plan of Operation shall be reviewed within 30 days, with a 60-day extension allowed under certain circumstances. Additional Oregon statutes prohibit restricting access to open mining areas or interfering with a mining operation.

Kitchar said they are asking US Forest Chief Dale Bosworth to intervene and remove the offending public officials. The miner’s group is giving Chief Bosworth a chance to respond before seeking civil damages.

• DOI orders review of “science” used in Klamath Basin decisions
The Department of the Interior announced it has signed an agreement with the National Academy of Sciences (NAS) to review scientific and technical information regarding aquatic endangered species conservation in the Klamath Basin.

“I believe we should base our decisions on the best available science,” Secretary Norton said. “We hope that by seeking this independent review we can assure the many constituencies affected by the Klamath Basin Project that our decisions meet that standard.”

The NAS will consider hydrologic and other environmental parameters necessary for the listed species at critical times during their life cycles. The review will also evaluate probable consequences to these species when environmental parameters fall below these conditions. The NAS will evaluate existing scientific information and review the way it was applied in developing the February 2001 biological assessments of the Bureau of Reclamation and April 2001 biological opinions of the US Fish & Wildlife Service and the National Marine Fisheries Service.

Hopefully, any study will take into account the recent court decision that says hatchery populations must be considered when deciding whether an Endangered Species listing is even warranted (ICMJ October 2001 issue).

• BLM Launches EIS for Conservation and Restoration of BLM Public Lands in Western U.S.
The Bureau of Land Management will prepare an environmental impact statement for the conservation and restoration of vegetation, watershed and wildlife habitat treatments on public lands administered by its staff in the western United States, including Alaska. To begin the process, the agency will hold scoping meetings across the West and in Alaska, starting in November. Completion of the EIS is scheduled for the summer of 2003.

The comprehensive EIS will update and replace analyses contained in four existing vegetation treatment and noxious weed management EISs completed from 1986 to 1992.

The EIS, which is national in scope, will consider reasonably foreseeable activities planned in each state, to include reduction and treatment of highly flammable forest and rangeland fuel (trees, brush and other plants that have accumulated). Treatment activities may include, but are not limited to, prescribed fire, riparian restoration, restoration of native plant communities, control of invasive plants and noxious weeds, thinning of forest under-story, forest health activities, and other treatment projects in ecosystems where fire has historically played an active role.

The analysis area will include all surface estate public lands administered by the BLM in Alaska, Arizona, California, Colorado, Idaho, Kansas, Montana, Nevada, North and South Dakota, New Mexico, Oklahoma, Oregon, Utah, Washington and Wyoming.

Issues that have been initially identified for analysis during the EIS process are:

• reduction and treatment of highly flammable forest and rangeland fuel (trees, brush and other plants that have accumulated), including mechanical treatments.

• noxious weed control activities.

• restoration of ecosystem processes.

• protection of cultural resources.

• watershed and vegetative community health.

• habitat improvement opportunities for threatened and endangered species, and sensitive and special status species.

• new chemical formulations for herbicides that may be more environmentally favorable than those now being used.

• smoke management and air quality.

• emergency stabilization and restoration of wildfire-affected landscapes.

• watershed and water quality improvement.

The EIS will also address human health risk assessments for a variety of chemical herbicides that have become available since the last EIS was written.

A reasonable range of alternatives, including a No Action alternative, will be developed to respond to the issues identified at the outset of the NEPA process. Each alternative will provide solutions to the issues and concerns brought out through public scoping to develop reasonable approaches to conservation and restoration activities.

The BLM’s interdisciplinary project team will coordinate closely with local, state and tribal governments, in addition to working with the Western Governors Association and the National Association of Counties. Locations and dates for public scoping meetings will be announced in a future Federal Register notice and in local and statewide media. This information will also be provided, when available, under the Recent News heading on the ICMJ website.

During the initial scoping phase, written or e-mailed comments regarding the issues listed above or any additional issues will be accepted for 30 days after publication of the Notice in the Federal Register.

To provide written comments, or to be placed on the mailing list, contact:

Brian Amme
Acting Project Manager
Bureau of land Management
P.O. Box 12000
Reno, NV 89520-0006
E-mail: Phone: (775) 861-6645.

Comments will be available for public inspection at the BLM Nevada State Office, 1340 Financial Blvd., Reno, NV 98502.

People making comments may request confidentiality. If you wish your name and/or address withheld from public review or disclosure under the Freedom of Information Act, you must state this prominently at the beginning of your written or e-mailed comment. Such requests will be honored to the extent allowed by law. The BLM will not, however, consider anonymous comments. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be available for public inspection in their entirety.

• Fish & Wildlife service approach to critical habitat ruled unlawful in Arizona case
A federal judge in Phoenix vacated all critical habitat designated for the Arizona population of the cactus ferruginous pygmy-owl, and criticized the Fish & Wildlife Service for their approach to the designation.

U.S. District Judge Susan R. Bolton ruled that the Fish & Wildlife Service’s designation of critical habitat for the pygmy-owl was unlawful because the agency failed to fully evaluate the economic and other impacts of designating areas in southern Arizona as critical habitat. Judge Bolton also stated that the designation was overbroad.

Most importantly, Judge Bolton found that the general approach used by the agency was unlawful. The Fish & Wildlife Service designated over 700,000 acres of land in Arizona as critical habitat, regardless of whether or not the land was occupied or contained essential habitat.

The Southern Arizona Home Builders Association (SAHBA) filed the suit, along with two similar associations. The group provided the Fish & Wildlife Service with a study prepared by a Phoenix economist that concluded the economic impact would cost the region billions of dollars. The Fish & Wildlife Service initially claimed that the designation would have no economic impact. They later admitted that their economic analysis was improper.

Judge Bolton rejected the challenge to the listing, but vacated the critical habitat designation. The critical habitat designation was remanded to the Fish & Wildlife Service for further proceedings consistent with the ruling.

“We were amazed that the Fish & Wildlife Service would simply ignore a report authored by a reputable Arizona economist and assert that designating over 700,000 acres of land as critical habitat would have no effect on southern Arizona,” stated Alan Lurie, SAHBA Executive Vice President.

Terry Klinger, President of SAHBA, said his association is pleased with the Court’s ruling. “The Fish and Wildlife Service didn’t fully evaluate the impacts of designating critical habitat, as required under federal law,” Klinger stated. “The critical habitat designation placed an unfair burden on both private landowners and the State of Arizona. The Fish and Wildlife Service designated land as critical habitat based on its potential to become suitable for owls in the future, without regard to legitimate land uses,” Klinger said.

Both Klinger and Lurie expressed disappointment in the court’s ruling on their challenge to the listing of the pygmy-owl population in Arizona as “endangered.” While the pygmy-owl is rare in Arizona, it is regarded as common over much of its range, including Mexico. In a report submitted to the Fish & Wildlife Service last December, University of Arizona researchers concluded pygmy-owls were common in the Mexican state of Sonora, immediately south of the international border. The population in Mexico, where most of the pygmy-owl’s range is found, was not listed, nor was the population in south Texas.

For more information, contact Roger Yohem, Communications Director, SAHBA, 2840 N. Country Club, Tucson, Az. 85716. Phone (520) 795-5114, or visit

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