Legislation & Regulation

Legislative and Regulatory Update

November 2013 by Scott

• Comment deadlines approaching for frog listings and habitat
The Western Mining Alliance (WMA) is spearheading the effort to stop the unwarranted endangered and threatened species listings and the critical habitat designations for the Mountain Yellow-Legged frog, the Yosemite toad and the Oregon Spotted frog.

The US Fish & Wildlife Service readily admits that the frogs are in decline because of the “chytrid fungus” and predators that include crayfish, non-native bullfrogs and stocked trout, yet the Service seeks restrictions on public land users while continuing to stock trout!

The Service also admits that the “historic range” of these animals is relatively unknown.

Regarding the Oregon Spotted frog, literature cited by the Service says, “This recently described species has an impoverished historic record that complicates interpretation of its historic distribution.”

The fact is that the Service has no idea where the frogs “historic range” is—the frogs have been eliminated in many areas and have moved from other areas due to natural predators, non-native predators and disease.

The Service is attempting to list the Oregon Spotted frog and designate critical habitat, which would close off 24 miles of rivers to miners and other public land users.

“No amount of regulation or land use restrictions will bring this frog back until they eliminate the non-native predators such as stocked trout and bullfrogs,” said the WMA.

The Service wants to place restrictions on 68,192 acres in Oregon and Washington for the Oregon Spotted frog (including 24 miles of streams, many of those gold-bearing).

The Service seeks a whopping 2,000,000 acres of critical habitat for the Mountain Yellow-Legged frog and the Yosemite toad in northern California, which also includes many gold-bearing lands and streams.

The WMA recommends the following actions:

1) Write or call your Congressional representative and ask them to intercede.

2) Go online to www.regulations.gov and voice your opposition.

3) Request a public meeting or hearing.

4) Write a letter to the US Fish & Wildlife Service.

5) Write letters to the editor of your local papers.

6) Attend public hearings.

Comments are due by November 12, 2013 for the Oregon Spotted frog, and by November 18, 2013 for the Mountain Yellow-Legged frog and Yosemite toad.

Submitting Comments by Mail

Comments for the proposed listing of the Oregon Spotted frog can be sent to:

Public Comments Processing
Attn: FWS-R1-ES-2013-0013
Div. of Policy and Directives Mgmt
U.S. Fish and Wildlife Service
4401 N. Fairfax Dr., MS 2042-PDM
Arlington, VA 22203

Comments for the proposed critical habitat of the Oregon Spotted frog can be sent to:

Public Comments Processing
Attn: FWS-R1-ES-2013-0088
Div. of Policy and Directives Mgmt
U.S. Fish and Wildlife Service
4401 N. Fairfax Dr., MS 2042-PDM
Arlington, VA 22203

Comments for the proposed listing of the Yellow-Legged frog and the Yosemite toad can be sent to:
Public Comments Processing

Attn: FWS-R8-ES-2012-0100
Div. of Policy and Directives Mgmt
U.S. Fish and Wildlife Service
4401 N. Fairfax Dr., MS 2042-PDM
Arlington, VA 22203

Comments for the proposed critical habitat of the Yellow-Legged frog and the Yosemite toad can be sent to:

Public Comments Processing
Attn: FWS-R8-ES-2012-0074
Div. of Policy and Directives Mgmt
U.S. Fish and Wildlife Service
4401 N. Fairfax Dr., MS 2042-PDM
Arlington, VA 22203

Submitting Comments Online

Go to www.regulations.gov and enter one of the docket numbers listed above (i.e., FWS-R8-ES-2012-0074). You will be directed to a page that provides links to the published documents and a “Comment Now” link.

For additional background information and talking points, we suggest you visit the WMA website at www.westernminingalliance.org and read their latest newsletters.

• EPA seeks more control
The Environmental Protection Agency has issued a major new report that synthesizes over 1,000 studies about connections between lakes, rivers, streams and wetlands.

The EPA is attempting, again, to claim jurisdiction over non-navigable waters by using this latest study to clarify jurisdiction of the EPA and Army Corps of Engineers under the Clean Water Act.

The report is titled “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Sythesis of Scientific Evidence.”

The EPA hopes to obtain by rule the authority to regulate all waters in the United States after the agency was rebuked several times by the US Supreme Court for overstepping their authority. The agency, along with the Army Corps of Engineers, stated they sent a copy of the new report to the Office of Management and Budget and hope to receive clarification from their own rulemaking panel—the Science Advisory Board—on jurisdiction of the Clean Water Act based on this new connectivity report.

The EPA states the Science Advisory Board will accept public comments regarding the report until November 6, 2013, which will be considered during a public meeting on December 18, 2013, in Washington DC.

Visit www.regulations.gov and search for EPA-HQ-OA-2013-0582 to view the report and provide comments.

• Comments due in Washington
The Washington Department of Fish and Wildlife is proposing changes to the Hydraulic Code, which governs in-stream mining and other public uses in and around Washington State waterways.
Many of the proposed changes would negatively impact in-stream miners across the state. Comments on the proposed changes are due by November 15, 2013.

The proposed changes, along with methods to provide public comments, can be found online at: wdfw.wa.gov/licensing/hpa/rulemaking/

• California dredging moratorium
While we wait for a scheduled May 2014 court date to address the illegalities of the dredging moratorium in California, Public Lands for the People continues to rack up bills in the case.

The bill for obtaining the complete court record is in the tens of thousands of dollars and funds are needed to continue the fight. PLP is filing an appeal of Judge Ochoa’s decision to deny a preliminary injunction. Please see their ad on page 14 and make a contribution now.

Meanwhile, miner Brandon Rinehart’s appeal regarding his conviction for dredging without a permit has been accepted by the Third Appellate District. Rinehart’s defense rides on federal preemption and the fact that the State of California cannot prohibit mining, which is exactly what it is doing by placing a moratorium on the only reasonable, environmentally-safe mining method for extracting gold from rivers and streams.

Attorney James Buchal is handling Rinehart’s case. A lower court refused to address the preemption issue, so this issue will be handled by the Appellate Court.

• PLF sues to delist polar bear
The Pacific Legal Foundation filed a petition with the US Supreme Court seeking to challenge the listing of the polar bear as threatened under the Endangered Species Act.

US Fish & Wildlife determined the polar bear was threatened due to speculative climate models despite there being no current decline in polar bear population. There are currently approximately 25,000 bears, which is roughly five times more than fifty years ago.