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Legislative and Regulatory Update

May 2001 by Staff

• BLM proposes suspension of 3809 Regulation changes
There has been some good news coming out of Washington, DC, lately. The Bureau of Land Management published a proposal in the Federal Register to suspend the agency’s recently adopted 3809 Surface Management Regulations. BLM has requested public input over a 45-day comment period. If adopted as a final rule, the proposal would suspend the current regulations governing surface management of mining operations on public lands, which became effective on January 20, 2001. It would also reinstate the regulations that were in place on January 19, 2001. The current rule, which became effective January 20, 2001, will continue in effect until a final rule is published. BLM anticipates publishing a final rule in July. In developing the final rule, the BLM will consider comments received in response to the proposed suspension.

The changes that were made on Clinton’s last day in office, if allowed to stand, could severely restrict both small and large mining operations (see March 2001 ICMJ).

“People have raised concerns about the new rules on both policy and legal grounds. If there are legitimate issues which need to be addressed, we should do so sooner rather than later,” said acting BLM Director Nina Rose Hatfield. There are four lawsuits challenging the current rules and creating uncertainty that the rules will remain in place in their current form. “It would be better to address these concerns now in a thorough review rather than have a partial implementation which may be delayed or subsequently stopped. We want to avoid creating disruption and uncertainty for the industry, the states and the BLM which jointly regulate the mining industry, and the public.”

The proposal gives the BLM the flexibility to review public comments before issuing a final rule resulting in the agency (1) suspending the current rules completely and reinstating the former rules, as is proposed; (2) retaining parts of the current rule while suspending others; or (3) retaining the current rules in their present form. Address comments to:

Director (630)
BLM Administrative Record
Room 401 LS
1849 C Street NW
Washington, DC 20240

Comments can also be e-mailed to WOComment@blm.gov and be sure to include “Attn AD22” in the subject field.

Copies of the 3809 proposal can be obtained from any of the BLM’s State Offices or accessed from the Bureau’s national Internet Web site (www.blm.gov/nhp/news/regulatory/index.htm) or the Federal Register Web site (www.access.gpo.gov).

• Monuments addressed by new administration
“We are dedicated to charting a new course of responsibility. President Bush and I want to partner with local people at the beginning—not at the end of the process,” said Secretary Norton.

The previous administration—in their final hours—designated over one million acres of National Monuments. In 2000 and 2001, the total amount of monument land designated was over 3 million acres—about the size of the state of Connecticut.

In letters sent to governors, members of Congress, state house and senate leaders, county commissioners and tribal chairmen, Secretary Norton left the door wide open to reducing the size and scope of National Monuments. The letters stated, “Are there boundary adjustments that the Department should consider recommending? Are there existing uses inside these monuments that we should accommodate?”

The letter initiates the Department’s effort to gather information to determine an appropriate future for each monument.

“One of the most disturbing discoveries was that the previous administration took little trouble to assure that the monuments will be adequately maintained,” Secretary Norton said. “They didn’t include needed funds to hire rangers to protect the monuments. They didn’t even include money to put up signs so visitors can actually find the new monuments. Worst of all, they failed to effectively partner with local property owners, elected officials and other people whose lives were affected by the last minute designations.”

“The Interior Department is also dedicated to listening to all people to develop real results, instead of focusing on conflict and divisiveness,” concluded Secretary Norton.

It’s time for all miners and prospectors to contact local, state, and national officials, to provide them with your comments. Senators and Representatives can be contacted at our web site through “Info & Links.” City and county officials can be found in your local phone book.

• Progress made on Clinton’s Roadless Rule
U.S. District Judge Edward Lodge responded April 5 to plaintiff’s claims and intervenor’s arguments on the lawsuit over the Forest Service’s Roadless Rule. The rule is being reviewed by the Bush Administration and they are scheduled to give the judge a status report in early May.

The plaintiffs, which include two counties in Idaho, the Kootenai Tribe, the Blue Ribbon Coalition, Boise Cascade, state and national snowmobile associations, and land and livestock companies, requested an injunction to stop implementation of the Roadless Rule. While the judge postponed ruling on the injunction until he receives the review from the Bush Administration, he did find that the plaintiff’s claims had merit.

The ruling stated, “Having previously found that the Plaintiff’s have demonstrated a strong likelihood of success on the merits, under the Ninth Circuit’s test for equitable relief Plaintiffs need only make a minimal showing of harm to justify an injunction.”

• Changes at USFS
USFS Chief Mike Dombeck retired effective March 31, 2001. Dale Bosworth, regional forester for the agency’s Northern Region, was named to replace Dombeck.

It’s unclear what this will mean to mining and public access, but several environmental groups and former chief Dombeck have praised the choice.

Dombeck stated, “He is among those I recommended and discussed with (Agriculture) Secretary Veneman. Dale was instrumental in developing key parts of the Forest Service’s natural resource agenda and led development of the roads rule.”

• Federal agencies pull back salmon biological opinion
Washington, DC (AP)—Two federal agencies have blocked a last-minute move by Clinton to place additional restrictions on federal lands east of the Cascades.

In two letters from early March, regional directors of the Fish and Wildlife Service and the National Marine Fisheries Service told five land management officials that they no longer support a “supplemental biological opinion” signed on President Clinton’s last full day in office.

The supplement clarified and extended a 1998 biological opinion governing how federal lands are managed east of the Cascades. It also expanded existing buffers along streams to protect fish habitats by preventing logging in those areas.

The withdrawal means the 1998 opinion remains in effect, without the extension of the buffers and other clarifications.

Brian Gorman, spokesman for the NMFS in Seattle, said that the 1998 regulations provide “more than enough” help to threatened and endangered salmon.

“It still controls what you can and cannot do on the east side (of the Cascades). It still provides the protection the law requires for protected species in the (national) forests,” he said.

Gorman said the withdrawal of the opinion was inspired in part by questions over whether the regional directors of either agency had the authority to sign the supplemental opinion.

But environmentalists see the withdrawal as a rollback of protections for fish.

“This is the beginning of a chipping away of what we think is necessary to save these fish,” said Kristen Boyles, attorney for Earthjustice Legal Defense Fund. “All of a sudden the agencies that are pushing these requirements are saying they are not going to push them so hard.”