Legislation & Regulation
Free / Legislation & Regulation
November 2018 by Scott
Clark Pearson of Public Lands for the People and I took part in several meetings in Washington, DC, last year, and again this March and June in 2018. During discussions with other property rights advocates and members of the current administration, Karen Budd-Falen’s name was mentioned many times as a possible director for the Bureau of Land Management (BLM).
Budd-Falen has now accepted a position as deputy solicitor for Fish, Wildlife and Parks.
For those who are unfamiliar with her, she is a Wyoming-based attorney and fifth-generation rancher who has been a staunch supporter of private property rights.
Budd-Falen often represented ranchers and other public land users in lawsuits against the federal government. In one of her more noteworthy cases, she sued BLM employees under the Racketeer Influenced and Corrupt Organizations (RICO) Act, though the US Supreme Court rejected the challenge.
Budd-Falen stated she withdrew her name from consideration for the BLM director position because of the growing list of conditions sought by the current administration in order to avoid any conflicts of interest. She and her husband, Frank Falen, who is also an attorney, agreed to change the name of their law firm and not represent any clients in disputes with the Department of Interior. She said the final straw was when she was asked to sell the family ranch and her husband was asked to sell his ranch in Nevada to avoid any perception of a conflict.
Budd-Falen’s new post as solicitor with Fish, Wildlife and Parks does not require Senate confirmation and she will start her new job on November 1, 2018.
Clark Pearson and I are planning our next trip to DC for early December. We plan to meet with the EPA to seek clarification regarding suction dredge permitting; meet with influential members of the House and Senate regarding our “Small Miner Amendments” to the National Defense Authorization Act; and meet with appointees at the Forest Service regarding their proposed changes to mining regulations under CFR (Code of Federal Regulations) Part 228.
We also have tentative meetings scheduled with members of the Western Caucus, which is comprised of over seventy members of the House who have similar views on mining and private property rights.
PLP submitted extensive comments (seven pages) to the Forest Service on proposed changes to Part 228 regulations, including recommendations for streamlining the permitting process and providing regulatory certainty for small miners. The length of the comments precludes them from being included in the print version of the Mining Journal, but the comments are included below:
USDA – Forest Service
RE: 2018 Public Lands for the People Comments on changes to 36 CFR 228 subpart A (Locatable Minerals) Regulations
The Mining Law presently codified under 30 U.S.C. section 22 states:
Many legal arguments have been made in various federal courts since 1974 against Forest Service personnel, and courts have ruled that regulations were being administered in a hostile fashion inconsistent with the intent of Congress. PLP understands that over the years, Congress has given a rather conflicted message , along with some strange 9th Circuit Court of Appeals rulings that have led us to a rather unpredictable situation regarding mineral development upon our public lands such as Karuk v. Forest Service 681 F. 3d. 1006. Because of this, America is second to last in the world rankings of conducive regulatory environments to do business. Simply put – America has way too much conflicting red tape that is needlessly hampering its domestic producers.
Small Miner Amendments (SMAs)
The following is an excerpt from PLP’s “Small Miner Amendments” for which we would like to see as much language as possible integrated into the 36 CFR 228 regulations:
“SECTION 103: UNIFORM FEDERAL REGULATION
(b) A new section is created at 43 U.S.C § 1748(c), titled: “Administration of Unpatented Mining Claims” with the following additions:
SECTION 104. MINE OPERATION EXEMPTIONS FROM THE CLEAN WATER ACT
PLP and ICMJ’s Prospecting and Mining Journal has presented this language to over 40,000 miners across the United States and received an overwhelming number of endorsements with little-to-no complaints. PLP understands the Forest Service does not implement the Clean Water Act, but none-the-less, we have added this language because it is a major sticking point to the small mining community. So, any clarity from the Forest Service on the issue in coordination with the EPA and Army Corp would be greatly appreciated in order to facilitate regulatory certainty consistent with EO 13817 and EO 13783.
Why Clean up the language of Notices of Non-Compliance consistent with the SMAs?
While the Forest Service and the BLM both admittedly have many civil and criminal remedies available to them in order to rectify miner’s noncompliance with federal regulations, most fundamentally as founded in our countries Bill of Rights under the 5th Amendment to our Constitution is the right of Due Process. Citing a miner under 36 CFR 261 without first providing a hearing at a meaningful time and place is not Constitutional nor acceptable under normal legal jurisprudence unless you are the 9th Circuit Court of Appeals. (Regarding U.S. v. Godfrey, where he got the shaft and the 9th averted their eyes to the fact no administrative hearing was provided and 36 CFR 228.7, 14 was not complied with by the Forest Service in order to gain a criminal conviction on two of the 5 counts.) If the Forest Service does not rectify these abuses in the application of their regulations under 36 CFR 228, it will never comport with future legal challenges PLP has prepared that are not within the 9th Circuit jurisdiction. And, as such, the Forest Service is encouraged to adopt the notice of non-compliance language provided in PLP’s “Small Miner Amendments” in order to cure its existing constitutional defects.
Why define Significant Surface Resource Disturbance?
Fundamentally, the word “significant” is an arbitrary term that invites a wide range of perception not at all fitting to use for regulatory certainty. Significant surface resource disturbance as to require the submission of a NOI or POO is a horrible regulatory standard that invites abuse every time. As stated by judge Carlton in U.S. v Lex, 300 F. Supp. 2d 951: “There is a serious argument to be made that the regulation was ‘so vague and standard-less that it leaves the public uncertain as to’ what is prohibited. City of Chicago v. Mo-rales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402–403, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966)). As such, the enforcement of the regulation would offend due process. In any event, the rule of lenity requires that courts infer the rationale most favorable to defendants in construing the residential purpose element. See United States v. Martinez, 946 F.2d 100, 102 (9th Cir.1991)”.
The Forest Service regulatory intent in dealing with this Lex decision in 2005 (70 FR 32713) stated:
Response: The intent in adopting § 228.4(a)(1) of the interim rule was not to authorize a District Ranger to require a plan of operations for operations which will not exceed the scope of one or more of the exemptions in § 228.4(a)(1)(i)-(v) of the interim rule. To ensure that the final rule is not interpreted in such an unintended manner, the phrase "unless the District Ranger determines that an operation is causing or will likely cause a significant disturbance of surface resources" is not included in the final rule. Thus, pursuant to § 228.4(a)(3) of the final rule, it is clear that prior submission and approval of a proposed plan of operations is not required if the proposed operations will be confined in scope to one or more of the exempted operations mentioned in that paragraph.” (Emphasis added.)
Unfortunately, in actual practice, PLP has documented that the Forest Service routinely requires POO’s for de-minimus operations. In our opinion, the regulatory intent should discourage this practice among competent minerals officers and stop wasting government time and the miner’s patience. Such abuse has, in fact, continued, as demonstrated in U.S v. Tierney, District court, AZ (2012) where the court found that 36 CFR 228 and 261 regulations were to be applied in such a manner to not pass the vagueness test. It was the original intent of the 1974 regulations to allow the miner to make the first call in what was significant surface resource disturbance, so long as the miner is not cutting trees or using a back hoe or bulldozer. (See Pearson v. Madrid, Plumas National Forest et. al, unpublished case from 2001 District court for the Eastern District of Cal.)
PLP is aware that the Forest Service does not have the Congressional authority to require a financial assurance before a miner proceeds to exercise his rights under the U.S. Mining Act (30 U.S.C. §§ 22-54). In Pearson v. Madrid, Plumas National Forest et. al, unpublished case from 2001 District court for the Eastern District of Cal., Pearson was able to demonstrate to the court that he availed himself to 26 bonding companies (approved list of reclamation bonding companies) the Forest Service provided, where not one would issue and bond! Judge Peter Nowinski stated in open court that Pearson had done his due diligence to obtain a bond and the Forest Service could not prevent him from proceeding without a financial assurance (bond) in part because it would be an unreasonable circumscription of his placer mining rights and in order for an agency such as the Forest Service to require monies from the public in light of their mining rights it must be accompanied by an express intent of Congress.
The problem (as PLP sees it), was created by the Forest Service itself on this matter not just because the Forest Service lacks the legal authority to require a bond, but the fact in many cases the Forest Service regulates the miner out of business over time and does not refund the bond even after reclamation is performed to the conditions of the agreed reclamation plan. The monies are held for “ongoing monitoring”—which can be endless until the monies are used up—all the while the miner has no say in this arbitrary process. Bonding companies stay away from bonding mining projects for the fact there is a lack of regulatory certainty. If the miner performs the labor to reclaim the site as specified by the conditions of his approval, then the money should be refunded—not held forever. This is a sign that “Best Management Practices” are not being applied in a fair and reasonable matter. As stated in the 1974 Congressional oversight hearing on the proposed 36 CFR 252 (now 36 CFR 228) regulations: “…the regulations must be fair to the miner and fair to the Forest Service...”. Therefore, the Forest Service is encouraged to adopt the definitions and language provided in PLP’s “Small Miner Amendments” to cure the defects.
Expiring POO’s before orebodies are exhausted
A common problem PLP has observed for the last 28 years is the Forest Service practice of placing an expiration date on the terms of an NOI or approval of a POO. This practice must stop. BLM does not do this, and this practice does not provide regulatory certainty consistent with EO 13817. The original point of submitting a NOI or POO in 1974 was to give the Forest Service a reasonable opportunity to mitigate surface impacts in connection with mineral operations. The Forest Service is reminded that operations under 36 CFR 228 and 30 U.S.C. 22-54 is not for the purposes of exercising a term lease system where the Federal government retains mineral ownership. Therefore, the Forest Service is encouraged to adopt the definitions and language provided in PLP’s “Small Miner Amendments” to cure the defects in the application of the 36 CFR 228 regulations.
POO Approval Time Limits
Everywhere across the United States, PLP has fielded complaints from miners that they are being delayed for years on the approval of their POO; some have been delayed for over a decade! Most miners give up and the activists within the Forest Service think they have won and deterred another “evil miner” in their eyes. PLP is aware that not all the Forest Service plays this game, so it does vary from district to district wholly dependent on each staff and their training within their districts. Mark Amodei’s Critical Minerals bill passed into law FY 2019 deals with this problem in part. This new law, under the National Defense Authorization Act, places a 30-month limit on the time the Forest Service must mitigate and place terms and conditions upon the approval of a POO. Amodei’s bill will not cure the problem. It is PLP’s opinion that all it will accomplish is more litigation against the Forest Service (for their failure to act or undue delay after 30 months has gone by) brought forth under the Administrative Procedures Act.
In light of the fact that in Karuk v. Forest Service 681 F. 3d. 1006 the 9th Circuit told the Forest Service that an inaction under a NOI is still an action within the meaning of NEPA, the Forest Service is not foreclosed in adopting the language of PLP’s “Small Miner Amendments” in its fullest (cited above). Providing regulatory certainty in the smoke-filled air of the 9th Circuit where miners presently loath to submit is a real incentive now and down the road.
Therefore, the Forest Service is encouraged to adopt the definitions and language provided in PLP’s “Small Miner Amendments” to cure the defects.
PLP’s “Small Miner Amendments” presently sitting in committee gaining sponsorship does, in our opinion, cure the problem–it helps the Forest Service and helps all miners. Why? Because PLP is asserting that while the government has a reasonable right to mitigate surface impacts under the various environmental laws The MINER still retains the bundle of rights to extract those minerals he or she has lawfully laid claim to under federal mining law. These rights, albeit not unlimited,, referred to in the library of Congress (Mining Law – Legal and Historical Analysis published in 1989) teaches us that miners have a “Right of Self-Initiation” that cannot be unreasonably circumscribed that is not to be confused with a lease system. PLP’s “Small Miner Amendments” attempt to place clear guidance to this contentious issue of minerals development upon public lands in the 21st Century.
Thank You for your consideration in this matter from the entire Board of Directors of Public Lands for the People.
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