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Legislative and Regulatory Update

April 2007 by Scott

• Comments needed
The Bureau of Land Management published an “Advance notice of proposed rulemaking” in the Federal Register regarding charging fair market value for public lands. This could have an effect on exploration or nugget hunting on unclaimed lands and could possibly result in some type of fee being charged for access.

Below is only a portion of what appeared in the Federal Register. We suggest you click on the “Pending Rules & Regulations” link on our website, www.icmj.com, to read the entire text.

Comments must be submitted by April 24, 2007.

In Mineral Policy Center v. Norton, 292 F. Supp. 2d 30 (D.D.C. 2003), plaintiffs challenged the BLM’s surface management regulations for hardrock mining, which are found at 43 CFR subpart 3809. One of the arguments that the plaintiffs made was that, on lands on which there are no valid mining claims, the BLM should be charging fair market value for use of the public lands for mining operations. (Mineral Policy Center, 292 F. Supp. 2d at 40.)

In response, the BLM argued that, “the ‘otherwise provided for by statute’ exception set forth in FLPMA (Federal Land Policy and Management Act) section 102(a)(9) exempts mining operations on both claimed and unclaimed lands from the fair market value policy, where such operations are conducted under the Mining Law.’’ (Federal Defendants’ Consolidated Motion for Summary Judgment at page 38).

Nevertheless, the court concluded that “[o]perations neither conducted pursuant to valid mining claims nor otherwise explicitly protected by FLPMA or the Mining Law (i.e., exploration activities, ingress and egress, and limited utilization of mill sites) must be evaluated in light of Congress’s expressed policy goal for the United States to ‘receive fair market value of the use of the public lands and their resources’” (Mineral Policy Center, 292 F. Supp. 2d at page 51). The court then remanded the regulations to the Department to evaluate the competing priorities set forth in FLPMA as applied to invalidly claimed or unclaimed lands “in light of Congress’s expressed policy goal for the United States to ‘receive fair market value of the use of public lands and their resources’” (id. at pages 51 and 57).

The fair market value policy in FLPMA applies “unless otherwise provided for by statute” (43 U.S.C. 1701(a)(9)). Based on this exception, the court in Mineral Policy Center concluded that the Mining Law authorizes operations, including possession, occupancy, and mineral extraction activities, on valid mining claims without payment of fair market value for that use (292 F. Supp. 2d at pages 47 and 51). The court also concluded that the Mining Law authorizes exploration activities, mill site use in association with valid claims, and ingress and egress to valid claims, without payment of fair market value for that use (id.). The court instructed the BLM to evaluate the application of FLPMA’s competing priorities, in light of the policy goal to receive fair market value for the use of the public land, to mining activities that amount to more than initial exploration activities conducted on invalidly claimed or unclaimed lands (id. at pages 46 and 50).

However, almost all of the 250,000 existing mining claims are on public lands that remain open to the operation of the Mining Law. On these open lands, a validity determination is an inefficient use if not an outright waste of government resources, because nothing stops the claimant from immediately relocating a new claim on the same lands covered by the invalidated mining claim.

In light of these practical administrative considerations, the BLM reasonably focuses its limited appropriations on conducting validity examinations where they are required. The BLM’s regulations at 43 CFR 3809.100 and 3862.1-1 require a complete validity determination only if a claimant:

(1) Proposes mining operations on lands that were withdrawn or segregated from the operation of the Mining Law, or

(2) Has applied for a patent.

Because Congress allows mining claimants to locate mining claims under the Mining Law and maintain them by making annual payments to the BLM while the validity of the claims is unknown, the use of these mining claims for mining operations falls within the “otherwise provided for by statute” exception set forth in FLPMA’s Section 102(a)(9). Therefore, the BLM has tentatively concluded that it may not apply FLPMA’s fair market value policy to approved mining operations that occur on mining claims of unknown validity.

“Unclaimed lands” are lands on which no mining claims are located. The BLM is not aware of any instance in which a miner or mining company would use unclaimed lands to conduct mining and mineral production operations or related uses. The BLM is not aware of any miner or mining company that would be willing to invest money or resources in the development of a mine without some tenure in the land in the form of a mining claim or mill site. If a mining company were to file a plan of operations to develop a mine on unclaimed lands, a third party could easily locate mining claims over the area and assert adverse rights to the lands. Therefore, it is the BLM’s tentative conclusion that no one uses unclaimed lands for mining operations that go beyond exploration activities on the public lands.

Nevertheless, the BLM requests public comments regarding whether any miners or mining companies in fact use unclaimed lands for such mining operations. The BLM asks for detailed examples of any such use. After the BLM receives and considers these comments, it will determine whether further evaluation of FLPMA’s competing priorities is needed with regard to any mining operations that go beyond exploration activities on unclaimed lands.

You must submit your comments by April 24, 2007. The BLM may not necessarily consider or include in the Administrative Record for the advance notice of proposed rulemaking comments that the BLM receives after the close of the comment period or comments delivered to an address other than those listed below.
Send comments via mail:

Director (630), BLM
US Department of the Interior
Attn: 1004-AD69
Mail Stop 401 LS
1849 C St. NW.
Washington, DC 20240

Send comments via email:
comments_washington@blm.gov
(include “Attn: 1004-AD69” in subject line).

• California tries another route to restrict miners and dredgers
Thanks to the efforts of Public Lands for the People, the New 49’ers, and others, the California Department of Fish & Game lost in its attempt to place further restrictions on gold dredging. They were ordered by a court to complete an Environmental Impact Report to justify any changes to gold dredging regulations. The mining organizations are well represented in this process. (See “Karuk Tribe case over, for now,” February 2006, pg 3.)

The state is now trying to use the California State Water Resources Control Board to further restrict or eliminate mining and dredging in waters of the state.

Jerry Hobbs of Public Lands for the People, along with your editor, attended a meeting of the Water Board in late 2006 after they announced their intent to amend water quality regulations.

Now the Water Board has issued a proposal with four “alternatives” for further controlling or restricting “discharges” in waterways. Their proposal declares that “Alternative 4” is the only alternative that meets all of its goals, so we will only address this section. The Water Board states that “nutrients” are a pollutant and need to be regulated. They also list “hydromodification” as a problem that needs to be addressed. Both of these terms are not defined by the Water Board. It is unclear whether or not they will be using these vague terms as avenues to place further restrictions on miners and suction dredgers.Also, to place a financial burden on miners, Alternative 4 states, “Compensatory mitigation would be required for all impacts.”

Following are some excerpts:

“Under Alternative 4, the State Water Board would develop a new state policy to regulate a variety of discharges and activities that impact wetlands and riparian areas; including, but not limited to, dredge or fill material discharges; discharges of other pollutants (e.g., nutrients); hydromodification; land and vegetation clearing activities; and invasive species. This action would provide a minimum level of protection to all waters of the state from these discharges and activities. With respect to dredge or fill material discharges, Alternative 4 would provide a level of protection that likely would be higher than the level of protection currently provided to those waters through the section 401 and 404 programs (for federal jurisdictional waters) and existing state policies (for all waters).”

“The requirements would establish that impacts from discharges and activities that impact wetlands and riparian areas be avoided if possible and that all unavoidable impacts be minimized to the maximum extent practicable. Compensatory mitigation would be required for all impacts. The amount of compensatory mitigation would be determined based on the functions lost at the impact site and the proposed method of mitigation, including the location and timing of the mitigation project.”

The Water Board also makes it difficult for concerned miners to provide constructive comments by setting a comment deadline of April 7, 2007. Many miners are out working in the field, and won’t know about this situation until after the deadline passes.

We have placed links to the proposals and documentation on our website for your convenience. You can find them by clicking on the “Pending Rules & Regulations” tab. Constructive comments are needed from concerned miners.

These proposed regulations will most certainly result in a lawsuit. Public Lands for the People has already committed to litigation, if necessary.

The National Association of Home Builders has been involved in several lawsuits against the Army Corps of Engineers involving similar restrictions. The proposal by the Water Board would obviously place further restrictions on home builders and developers. We have notified their attorney of this latest attempt by California to further restrict mining and development and expect they will also commit to litigation.