Thinking outside the box: Critical Minerals Petition

Latest News

April 29, 2019
PLP has proposed an amendment to the National Defense Authorization Act (NDAA) called “Critical Minerals: National Security Amendments to the NDAA”. This Critical Minerals Amendment, written and proposed by our legal researcher Clark Pearson, solves most of the small miner’s regulatory problems observed by PLP over the last 29 years. A huge amount of research and practical knowledge has gone into this amendment. It was written by a working small miner to help all miners, big and small. It provides clear and concise regulatory certainty in dealing with all regulatory bodies the miner faces today. PLP is presently seeking co-sponsors on the House and Senate side.

This Critical Minerals amendment is a must read and should go down as the most important piece of legislation to help the mining industry in a very long time. You can help us TAKE ACTION! PLP has started a petition drive at: https://www.publiclandsforthepeople.org/take-action/ where you can read the proposed legislation and support material then electronically sign the petition. Your signature, along with thousands of others will be shown to select members of the United States Congress and Senate. The signatures will convince legislators of the groundswell grassroots support and that the time to act is now. ICMJ’s Prospecting and Mining Journal, which has documented our progress in Washington, D.C., also has it available for viewing and comment at: www.icmj.com.

The ICMJ has also taken the lead to receive individual miner and mining association endorsements in support of the “Critical Minerals: National Security Amendments to the NDAA” on their Facebook page or by sending your endorsement to their mailing address:

ICMJ P.O. Box 2260 Aptos, CA 95001
Read the detailed PLP update here: https://www.icmj.com/magazine/article/plp-update-4022/

Please do your part to help us Take It Back and Keep It! Renew your personal, business or club membership and PLEASE HAVE ALL YOUR CLUB members join PLP as well. Encourage everyone to be an active part of the solution and be among those who are making history.

Don’t forget, there is still time to purchase your 2019 Grand Raffle tickets! A book of 12 tickets only costs $10. Don’t wait until the last-minute rush! You can’t win if you don’t enter!

We can mail them to you or drop your tickets in the barrel for the July 9th drawing- your choice. To purchase tickets, call our toll-free number (844)-PLP-1990 which is (844) 757-1990 OR Mail a Check (to the address below), and specify the number of ticket books you wish to purchase. Let us know if you want us to assign your ticket numbers and drop them in the barrel or mail them to you to fill out and mail back. Supporting the PLP Grand Raffle helps us continue to fight for your rights.

PLP
23501 Burbank Blvd. Woodland Hills, CA 91367

We look forward to hearing from you,
Your PLP Board of Directors

CA Fish and Game posts FALSE INFO RE: Dredging regulations

Now the lowdown on the State’s FAKE INFO, designed to keep more people off the waterways. Read the bottom half of this news item for the real code language!

Fake info on CA Fish & Wildlife website:
www.wildlife.ca.gov/licensing/suction-dredge-permits

Suction Dredge Permits

Last update : 10/19/2017 11:08:30 PM

Current Status

The use of vacuum or suction dredge equipment, otherwise known as suction dredging, is currently prohibited and unlawful throughout California.

Under new state law effective January 1, 2016, the use of vacuum or suction dredge equipment is defined to mean the use of a mechanized or motorized system for removing or assisting in the removal of, or the processing of, material from the bed, bank, or channel of a river, stream, or lake in order to recover minerals.

Under existing state law the California Department of Fish and Wildlife is also currently prohibited from issuing any permits for suction dredging in California under the Fish and Game Code.

With state law in effect, the use of vacuum or suction dredge equipment, otherwise known as suction dredging, is unlawful in California rivers, streams, and lakes, and any such activity is subject to enforcement and prosecution as a criminal misdemeanor.

(See generally Fish & G. Code, §§ 5653, 5653.1, 12000, subd. (a).)

Mining Activity Not Currently Prohibited by the Moratorium

The ongoing statutory moratorium established by Fish and Game Code section 5653.1 prohibits some, but not all forms of mining in and near California rivers, streams, and lakes.

Individuals engaged or interested in otherwise lawful in-stream mining should be aware that other environmental laws may apply to these various other mining practices. Fish and Game Code section 5650, for example, prohibits the placement of materials deleterious to fish, including sand and gravel from outside of the current water level, into the river or stream. Further, Fish and Game Code section 1602 requires that any person notify the Department before substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel or bank of any river, stream or lake. See additional related information.

The information in bold print above DOES NOT reflect the actual language of the Fish & Game code

The code actually says:

“(a) Except as provided in subdivision (b), it is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of this state any of the following:

(1) Any petroleum, acid, coal or oil tar, lampblack, aniline, asphalt, bitumen, or residuary product of petroleum, or carbonaceous material or substance.

(2) Any refuse, liquid or solid, from any refinery, gas house, tannery, distillery, chemical works, mill, or factory of any kind.

(3) Any sawdust, shavings, slabs, or edgings.

(4) Any factory refuse, lime, or slag.

(5) Any cocculus indicus.

(6) Any substance or material deleterious to fish, plant life, mammals, or bird life.”

There you have it, the existing code. Now if PLP’s proposed legislation gets into the Federal code, the State will not have jurisdiction over dredging on Federally managed land. Help us get over the goal line! Join PLP today!

PLP to D.C. first thing in 2019

December 2018 PLP Newsletter

PLP’s Trump Card
Shhhhhhh… Don’t tell anyone but do you know what happens when dredge protests fail, fines are paid on unreasonable regulations and when the courts are not in your favor?  Legislation-  not ordinary legislation but must-pass legislation for budget and national security reasons. Fortunately, PLP along with the National Mining Association placed mining for the very first time in history (signed into law by President Trump August 13, 2018) so that the needs of the miners are a matter of national security under the National Defense Authorization Act (NDAA). Previously on December 20, 2017 PLP and the USGS were instrumental in having President Trump sign executive order #13817 requiring the federal government to develop and implement a strategy to reduce the nation’s dependence on foreign sources for critical and strategic minerals and metals.

PLP’s work in D.C. is starting to pay off – at the Presidential level, and the agency level through direct communication on the sound premise that domestic mining regulatory relief needs are a matter of national security. President Trump in signing executive orders such as #13771, #13777 and #13817 all move the federal agencies to provide the mining community the needed regulatory relief utilizing PLP’s supplied legal research, ICMJ supplied miners complaint letters, and the experience supplied at the right time and place to the top decision makers and their writers.

We are making incremental steps implementing PLP’s Small Miner Amendments through our influence at the Executive order level, the agency rulemaking level and the Congressional level through the NDAA. Rest assured, the foundations PLP are laying along with our property rights allies, are being laid regardless of the fighting between President Trump, the Democrats or the Republicans.

Fellow Miners and Patriots, if you are going to be part of the continuing effort to repeal duplicative regulations, join or renew your PLP Membership now to keep our gains moving forward and receive the…drum roll please…

The first annual “Drain the Swamp” PLP Calendar
This nifty calendar has many important dates highlighted such as the dates President Trump signed key Executive Orders that help miners. You will also receive a PLP T-Shirt AND a book of 12 raffle tickets to our 2019 Grand Raffle!

Please join or renew now while quantities last at www.PublicLandsForThePeople.org/join/  

You can also order extra 2019 Grand Raffle tickets by calling 844.PLP.1990 (844.757.1990). We are offering many expensive prizes this year!

We are happy to report that the SCOTUS made a great ruling regarding private property rights and critical habitat designations where the USFWS had designated critical habitat for a frog that no longer existing in that area. We are happy with this ruling and are looking forward to many more common sense rulings from the SCOTUS in the future. For the SCOTUS ruling, click here.

PLP is heading to D.C. again in early January, so please help us win the next round in getting regulatory relief for small scale miners, Join PLP or Renew today! With your support we can…..
“Take It Back And KEEP IT!”

Thank you!

Your  Board of Directors

Public Lands for the People

2019 Grand Raffle is underway! Get your tickets early!

PLP-ICMJ-Oct18

 

New prizes added as they are donated. For example, we haven’t added Spin-It-Off  to the official list yet. Thank you Spin-It-Off for donating to our raffle! This helps raise funds for things like helping get the “Small Miner Amendment” passed into law. We work hard for you, this is your chance to be part of changing what is broken in Public Lands Management. Thank you!

2018 Public Lands for the People Comments on changes to 36 CFR 228 subpart A (Locatable Minerals) Regulations

Oct. 7th, 2018

USDA – Forest Service

Attn: Director-MGM Staff

1617 Cole Boulevard Bldg. 17

Lakewood, CO 80401

 

RE: 2018 Public Lands for the People Comments on changes to 36 CFR 228 subpart A (Locatable Minerals) Regulations

 

Dear Director,

Public Lands for the People Inc. (PLP) wishes to comment on the proposed regulatory changes to 36 CFR 228 (Locatable Minerals) regulations.  PLP represents thousands of small miners in the United States who have an interest in fair and reasonable mineral regulations throughout the United States upon federally managed public land.  PLP has specific comments and language that your office will find extremely helpful in your efforts to comply with EO 13817, the GAO, and our National Minerals Policy codified under 30 U.S.C. 21(a).  Most importantly, as far as miners are concerned, our comments and specific, recommended language will provide regulatory certainty to a set of regulations that have been woefully deficient since their inception in 1974.  It is PLP’s position that for this reason alone our country has become over 92% dependent upon foreign sources of raw metals and rare earth minerals to meet America’s domestic needs.

 

The Mining Law presently codified under 30 U.S.C. section 22 states:

Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United 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)

As your office may already be aware, PLP submitted a courtesy copy of its proposed “Small Miner Amendments” to members of Congress (subcommittee on minerals and resources committees) and to your Washington, DC, Headquarters office of the U.S. Forest Service in March, 2018.  PLP is picking up good interest in these committees in addition to words of interest from your D.C. office “to implement as much reform within the Forest Service and not wait for Congress on matters of regulatory clarification for the mining industry”.  PLP wishes to reiterate that the Forest Service utilize the section of the “Small Miner Amendments” defining significant resource disturbance definitions and the enhanced section regarding notices of non-compliance mirroring the Bureau of Land Management (BLM).  This would provide the regulatory certainty the mining community has desired for a very long time plus eliminate abuse by some poorly trained non-minerals staffers PLP has observed and gone to court over in the past 25 years.  Several of these cases will be addressed later in this paper.

 

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

            (a)        43 U.S.C. § 1702 is amended as follows:

                        (i)         New subsections (q), (r) are added:

            “(q) ‘mine operator’ means any person or entity exercising rights of or through the holder of a federal unpatented mining claim.

            “(r) Generally ‘mining casual use’ means excavation and/or processing (including motorized excavation and processing) of less than 1,000 cubic yards of material annually per claim; or surface disturbance of less than five acres of ground; use, maintenance, or occupancy of visibly-existing or previously-existing roads / trails (implied easements), tunnels, mill sites, refining sites, bridges, or existing mining-related buildings; staging, use or occupancy of portable or removable equipment; subsurface operations; or any combination of the foregoing or similarly-limited mineral development activities.”

(b)        A new section is created at 43 U.S.C § 1748(c), titled: “Administration of Unpatented Mining Claims” with the following additions:

 

            “(a)     Federal unpatented mining claims are tracts of public land dedicated to the particular purpose of mineral development, and the exercise of the property rights in federal mining claims are to be managed exclusively in accordance with this section.”

            “(b)     Notices of Initiation (NOI) and Plans of Operation (POO)-”

                        “(i)      Mine operators may proceed with mining casual use without notice to the Bureau of Land Management (BLM).”

                        “(ii)     Mine operators must provide a Notice of Initiation (NOI) to the BLM thirty (30) days in advance of commencing mining operations beyond casual use. If BLM fails to respond to the NOI within thirty (30) days, the mine operator may commence operations, unless the operation involves a surface disturbance in excess of 100 acres but less than 1000 acres, in which case BLM shall have twelve (12) months to respond and mitigate impacts, after which the operation is approved by operation of law.  All other operations exceeding 1000 acres shall be covered under a plan of operations and approved by operation of law within twenty-four (24) months”

            “(c)      Upon receipt of a NOI, BLM shall review the proposed operations for compliance with best management practices and issue a determination as to what, if any, additional best management practices are required.  NOIs may be of any duration specified by the mine operator, and the BLM’s determination with respect to the NOI shall remain effective for so long as operations continue as specified in the NOI and may be assigned to future mine operators.”

                        “(i) Final reclamation activity in general shall only be required if a mine operator and BLM geologist concur that an ore body is exhausted and that the reclamation will not impede future operations.  Seasonal reclamation activity may be required if it will not materially interfere with future mining operations.”

                        “(ii) Reclamation bonding shall only apply if surface disturbance exceeds 5 acres or 1000 cu. yards annually of processed material per claim.  Haul roads, utility roads, temporary milling sites and portable structures, and any other pre-existing land disturbance shall not be included in the 5-acre calculation.  Reclamation costs shall be based upon the average of 3 independent bids.  BLM shall recognize and give effect to bonding pools through a memorandum of understanding to assist large and small mine operators in meeting the requirements of this section.  The bids for bonds and reclamation costs may not be reviewed more often than once every 7 years.  Reclamation bonds shall be refunded to the mining operator within one (1) year of completion of the reclamation, even if the site is subject to continuing monitoring.”    

            “(d) Any personnel employed by BLM to review an NOI shall have qualifications of at least a bachelor’s degree in mine engineering with a minimum of three (3) years or more experience in private sector commercial mining operations or over five (5) years production mining experience in lode, placer and milling operations.”

 

            “(e)      If BLM determines that any mine operator is conducting operations beyond casual use without providing an NOI, or that any mine operator is conducting operations contrary to published best management practices, BLM must provide formal, written notice to the mine operator through a Notice of Noncompliance.  Such notice shall describe the noncompliance and shall specify the action to comply and the time within which such action is to be completed, generally not to exceed thirty (30) days, provided, however, that days during which the area of operations is inaccessible shall not be included when computing the number of days allowed for compliance.  The requirements to issue a Notice of Non-compliance shall apply whether or not the operator has a submitted NOI on file with the BLM and shall not be used to shut down the entire mineral operation.  Actual notice shall be presumed effective when mailed by certified mail, return receipt requested to the owner of the mining claim and operator of record as specified in BLM records, or personally served upon the mine operator.  No enforcement action by any agency, civil or criminal, may be commenced until after delivery of such notice, and no adverse action may be taken against a mine operator until after a hearing with the protections of 5 U.S.C. § 554.  No enforcement action shall halt compliant aspects of the operations that the operator qualifies under casual use activities.” 

            “(f)      Action with respect to any NOI shall not be ‘major federal action’ within the meaning of 42 U.S.C. § 4332 or ‘agency action’ within the meaning of 16 U.S.C. § 1536(a)(2).”

 

 

 

SECTION 104.  MINE OPERATION EXEMPTIONS FROM THE CLEAN WATER ACT

            (a)        “Mining operations which do not add any chemicals to excavated aggregate or ore, other than water, and native materials, shall not be considered an “addition of any pollutant” within the meaning of 33 U.S.C. § 1362(12).” 

            (b)        “Mining and processing discharges from mining and processing involving the use of biodegradable chemicals that have a Material Safety Data Sheet (MSDS) reading, “This product is not classified as dangerous for the environment,” “The risk of environmental effects is considered small”, or substantially equivalent language.”

                        (c)        “Suction dredge and bucket excavation mining within the natural 100-year flood plain of a water body, or operations contained through artificial impoundments to reduce offsite sediment transport comprise incidental fallback and do not represent an “addition” or “discharge” within the meaning of 33 U.S.C. §§ 1341, 1342 or 1344.”

(i)         “Incidental fallback” is defined as: native rock, sand, soil, or vegetative materials picked up, processed to remove or reclaim the mined metal or minerals, and then backfilled at or near the same excavation site.  Offsite turbidity in connection with incidental fallback is also not an “addition” or “discharge” within the meaning of 33 U.S.C. §§ 1341, 1342 or 1344.”    

 

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:

Two respondents specifically requested the deletion of the phrase and its replacement by the prefatory *32725 language of §  228.4(a)(1) and the language of §  228.4(a)(1)(i)-(v). Those respondents commented that this change would ensure the continuation of the historic application of the terms ‘disturbance’ and “significant disturbance.”

 

 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.)

And as such, the Forest Service is encouraged to adopt the definitions and language provided in PLP’s “Small Miner Amendments” to cure the defects.

 

 

Reclamation Bonding

 

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.

 

 

Conclusion

 

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.

 

Ron Kliewer,

 

Ron Kliewer

 

President,

Public Lands For The People

CA Dredge Case update: Sept. 2018

PLP Legal update September 2018

The board of directors wishes to sincerely thank Gold Prospectors Assoc. of America (GPAA)/ Lost Dutchman’s Mining Assoc. (LDMA), along with Keene Engineering for being some of the major financial contributors to the small mining communities’ lawsuits against the state of California that PLP filed on behalf of the miners in 2010. They say, “one cannot fight the government”, but we can. However, it takes a lot of time and money.

It has been over 8 long years since PLP filed suit against the State over the suction dredge ban. This filing would not have been possible without our major donors. The PLP and the mining community has spent a lot of time and money bringing these causes of action against the state.  We knew we had a good chance of knocking out the 2012 Environmental Impact Report (EIR), and the state’s prohibitive regulations.  We filed a Notice of Appeal on Judge Ochoa’s dismissal of our causes of action. Moving forward, the board had to evaluate our chances. The State has requested punishing our Plaintiffs for attorney costs and record cost to the tune of over three hundred thousand dollars (charging the miners: individuals who put their names and fortunes on the line).  Unfortunately, our major contributors (some named above) have not continued to support the miner’s cases against the State for over 2 years. We have had no financial commitments from other “mining rights groups” who had spoken of unity with PLP to help bear the costs but never committed to meaningful action month after month. We do appreciate those clubs, families and individuals who have faithfully stayed the course. These funds are being used where we feel we are making the biggest impact (see below).

Faced with a rather tough decision to go forward with insufficient funds, the board has made the decision to settle the lawsuits against the State and not pursue an appeal.  The lack of unity within the small mining community was a major factor in the boards decision.  Our membership wishes (by your letters of support) us to pursue a federal solution to the plight of California miners and the miners in other States, which can be solved best federally.  As an alternative to not going on appeal, we have considered and had given the opportunity for Pacific Legal Foundation (PLF) and the Western Mining Alliance to take the CEQA case forward, and they have declined.  Now that we have hit you with a dose of sadness, here is where we are going from here and we are confident that we can solve the issues of the small-scale miner in California and throughout the United States. We recently aligned with a group of property and public land rights organizations regarding opening the Pebble Mine in Alaska (which would have the domino effect of opening other locked up public properties). Read the story here: https://www.icmj.com/resources/news-and-events/miners-news/plp-signs-on-to-support-revisiting-404-permit-denial-at-proposed-pebble-mine-390/

As many of you know PLP has been working publicly and behind the scenes within the Trump administration in Washington D.C. along with many members of Congress.  We are helping to educate members under Trump and likeminded members of Congress and their staffers of problems facing small miners in the U.S. and giving these members workable legal and educational solutions to help our industry. Our contacts and communications are fantastic considering we are now working within strategy think tanks with some of the best minds in the U.S. regarding property rights.  Much of the information that we have been allowed to release to our members and the public has been documented monthly in the ICMJ Mining Journal and have been released on an ongoing bases on Facebook.  To put it clearly – we have direct access to top level administrators in the Forest Service, Dept. of Interior, USGS, MSHA, and EPA.  The Trump picks are who we deal with period – the movers and the shakers.  We work directly with them because they want to help make mining great again.  We also work closely with many other property rights groups who share our core mission.

So, if you are having a problem locally and on federally managed public land, send us a letter and we will make sure it is delivered to high level people who care.  If your problem can be verified as unjust treatment, then someone down the federal or even state food chain will be transferred or worse.  There is a new Sherriff in town and his name is President Trump.   Do not underestimate how much he cares about our industry and your opinions, PLP knows, and wishes to help you be heard by him and his allies within the administrations.

Also, as you have probably already heard, PLP’s “Small Miner Amendment” is picking up support within the Minerals subcommittee in Congress thanks to your calls and letters of support – so keep them coming.  The National Mining Association (NMA) ran their minerals bill through the National Defense Authorization Act (NDAA) just as we planned, and we had shown the way.  Making mining a matter of NATIONAL SECURITY for the first time in history under the NDAA!  Now it is our turn in line to push in part or in whole PLP’s “Small Miner Amendments”, solving 30 years of documented abuse of small miners mining rights.  So, come on aboard, the future is in fact bright with regulatory reform and nuggets in your pockets!

WE, WITH YOUR CONTINUED SUPPORT, WILL HELP PRESIDENT TRUMP MAKE MINING GREAT AGAIN AND DRAIN THE SWAMP!   

Don’t forget: PLP’s 2019 Grand Raffle is underway! A list of raffle prizes is in the September www.icmj.com issue. Call 844.757.1990 to order your tickets today!

 

Taking it Back and Keeping it,

Your PLP Board of Directors

ATR, PLP and others Urge EPA to Rescind Obama Pebble Mine Veto

PLP joined Americans for Tax Reform and several other organizations in urging Acting EPA Administrator Andrew Wheeler to rescind an Obama-era preemptive veto to halt a mining project in Southwest Alaska.

 

September 6, 2018

The Honorable Andrew Wheeler
Acting Administrator
Environmental Protection Agency
1200 Pennsylvania Ave., N.W.
Washington, D.C. 20460

Dear Acting Administrator Wheeler,

In 2013, organizations from coast-to-coast called on then-U.S. Environmental Protection Agency (EPA) Administrator Gina McCarthy to reject an unprecedented decision on Pebble Mine and warned that a preemptive veto, “would have a dramatic chilling effect on investment in America.” Unfortunately, this call went unheeded as the Obama EPA promulgated the “Proposed Determination.”This action was essentially a preemptive veto on the development of a copper mine in Southwest Alaska (AKA Pebble Mine) before the project had a chance to go through the permitting process. The proposed veto was based on incomplete, shoddy analysis and agency collusion with liberal environmental activists and other project opponents.

The conduct of the EPA over the last forty years confirms that the issuance of a proposed preemptive veto is unprecedented. EPA has only exercised its authority under Section 404(c) thirteen times. In each previous instance, EPA invoked Section 404(c) only after receipt of a permit application describing the scope and details of the project proposed, the anticipated environmental impact, and the techniques employed to mitigate, which is normal for all applicants under the well-established NEPA process.

One does not have to be a mining proponent to oppose the unprecedented action taken by the Obama EPA with their proposed preemptive veto of the Pebble Mine—before it even submitted a permit application. The harmful effects of continuing with EPA’s veto process go well beyond the mining industry. The need to secure 404 permits touches every state and all areas of our economy.

In late June, former Administrator Pruitt correctly recognized the dangerous precedent set by the Obama EPA and issued a memorandum instructing the agency to update the regulations governing EPA’s role in permitting and its veto authority under section 404 of the Clean Water Act (CWA). In the news release on June 27, 2018, former Administrator Pruitt instructed the EPA to ensure the agency is “protecting public health and the environment in a way that is fair and consistent with due process. We must ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner.”

We applaud this action and encourage you to not back down to those who have asked you to withdraw the memo and the directive for the EPA to update the 404c regulations and guidelines. Further, with the proposed regulatory reform, the EPA has an opportunity to establish a lasting precedent for the federal permitting process that protects “human health and the environment while improving predictability and regulatory certainty,” per the EPA’s news release. The Agency can make sure that this message is received clearly by communicating that these rules will apply to all current and proposed projects, not just future permit applications.

Unfortunately, the Obama Administration’s proposed preemptive veto is still in place. While the developers of the Pebble Mine have been allowed to submit the permit application, the U.S. Army Corps of Engineers is still precluded from issuing any permits. So long as the preemptive veto on Pebble Mine remains in place, there remains a dangerous precedent for future administrations to undermine a fair, traditional, and rational permitting process.

We firmly believe that the continuing existence of the proposed preemptive veto on Pebble Mine undermines the Pruitt Memo and the necessary regulatory reform it seeks to establish.

You have the ability to right the wrongs of the Obama EPA and remove the precedent of a preemptive 404(c) veto entirely. We urge you to rescind the proposed “veto” (proposed determination) for Southwest Alaska as soon as possible. This action would be an important step to reestablishing a fair and due process at the EPA, which Pruitt called for in his memo.

We applaud the President’s proposal to eliminate the EPA’s statutory authority to issue a veto, which is part of his infrastructure plan. Implementing regulations based on Pruitt’s memo and taking the steps outlined in this letter is consistent with Trump’s intentions and would make it even more difficult for future administrators to use the 404c provision as a tool for ‘federal zoning.’

We appreciate your leadership and look forward to continued EPA action to reduce the burdensome regulations implemented by the Obama EPA.

Sincerely,
Grover Norquist
President
Americans for Tax Reform

Dick Patten
President
American Business Defense Council

Rick Manning
President
Americans for Limited Government

Brent Gardner
Chief Government Affairs Officer
Americans for Prosperity

Jennifer Fielder
CEO
American Lands Council

Myron Ebell
Director, Center for Energy & the Environment
Competitive Enterprise Institute

James Edwards
Executive Director
Conservatives for Property Rights

Ron Kliewer
President
Public Lands for the People

Derrick Hollie
President
Reaching America

Jim Martin
Chairman
60 Plus Association

Amy Oliver Cooke
Executive Vice President
Director, Energy and Environmental Policy
Independence Institute (Colorado)

Sal J. Nuzzo
Vice President of Policy
The James Madison Institute (Florida)

Paul Gessing
President
Rio Grande Foundation (New Mexico)

John M. Tidwell
Oklahoma State Director
Americans For Prosperity Oklahoma Chapter

Brett Healy
President
John K. MacIver Institute for Public Policy (Wisconsin)

August 2018: Reminder: Dredging does not add a pollutant

PLP Update as of 8-11-18:
Public Lands for the People delivered information to the Federal EPA in Washington DC in March that legally explained that suction dredgers do not “add” a pollutant within the meaning of the Federal Clean Water Act requiring a 402 or 404 pollution discharge permit. The EPA has assured us of a decision in the near future, as it was passed to their specialists on the matter.
As we know, whether it is California’s SB 637, or the CA Water Board, or Idaho’s IDWR, they all defer to the Federal EPA regarding exemptions when the Feds choose to specifically state such. The fact is, the States get funds from the Federal government to carry out these directives. PLP is continuing to follow this matter up and resolve it under the Trump administration so that suction dredgers will not be labeled polluters requiring discharge permits in CA or any other State. PLP strongly believes that by submitting to a 402 permit, as some have advocated (see the article below this newsletter: “Surrendering to the Pollution Permit”), miners will run the risk of undermining and subverting our negotiations with the Federal EPA to resolve this issue at a national level.
PLP also believes that when the true costs of the $6,000 permit plus the cost of hiring a water monitoring engineer per dredger (or group of dredgers), at $50,000 comes to light (which is now being hidden), dredgers will be rightfully outraged as this will not be affordable, nor reasonable. We can say this with relative certainty based upon our experts with real experience in past permitting, going back to the year 2000!
On a related note, these negotiations with the CA State Water Board will not lift the existing ban on suction dredging in class ‘A’ waters (closed to dredging), under the Fish & Game regulations along with many unreasonable restrictions such as no winching, no dredging within 3 feet of a stream bank, 4” maximum nozzle, etc. Please review the CDFW regulations thoroughly and judge for yourself. https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=46636
PLP has a solution to this situation through the “Small Miner Amendments to the NDAA” now presently sitting in the Minerals subcommittee in Congress under review and markup. We are presently being told by the subcommittee chair (Congressman Paul Gosar, AZ), that there is very positive interest in sponsors to get this bill on track for next year. We need and certainly appreciate your moral and financial support to keep this momentum going in the halls of Congress!
As an option, PLP is considering litigating CA SB 637 in Federal District court. Unfortunately, it’s presently beyond PLP’s sole financial means without your added financial support, and especially the promised support from several mining and prospecting organizations which has vaporized. We can’t even consider this option in light of the disappointing fact that AMRA and the GPAA has not committed, nor produced any civil litigation monies to PLP in the past 2 years to fight the ongoing dredge litigation against the State of California.
We believe that the more cost-effective solution is through our present Federal legislative push to override the state and the state court decisions, and to stay on track and within budget. Our “Small Miner Amendments” not only solves the dredgers problems, it solves many, many more regulatory issues in a simple but comprehensive way. Read it on our website if you have not already and tell your Congressman and Senator we need this now!
Read/LEARN/Support/ Join PLP today at our website: www.publiclandsforthepeople.org

Surrendering to the Pollution Permit
There has been a lot of buzz going around lately that “They might let us dredge in 2019” in California. That would truly be awesome after all these years! The small-scale mining industry will be back in full swing. Manufacturers would once again start cranking out dredges and other related equipment; good times to be enjoyed by one and all. That has been and continues to be the goal of Public Lands for the People.
We must at this point perform our due diligence.
Mining groups other than PLP have proposed that miners submit themselves to a water quality permit (permission) from the California Water Board, in order to obtain an additional permit from CDFW with the admission by the applicant that suction dredging for gold is adding a pollutant (although it be deminimus). That means the miner admits he is adding pollution to the waterway, but “please, let us dredge.” This one act alone not only is dishonest due to the fact that dredges remove material from the waterway (net withdrawal), this gives up one’s Mining Rights by contract to the government of California and turns away from the important win in the Godfrey case. Federal Mining rights can only be protected FEDERALLY – not at the state level. State law only fills the gaps where federal law does not speak or specifically occupy on federal lands.
The PLP Board agrees with the concerns the Mining Journal has regarding SB1222: https://www.icmj.com/magazine/article/california-to-allow-suction-dredging-in-2019-3828/
It appears at this time that SB1222 has come to a halt. Good riddance! Preserving federally granted mining rights has been a core value of PLP since its inception and is a responsibility the board will not waiver from. SB1222 as written demonizes the suction nozzle that many smart miners have been using via gravity systems. We cannot in good conscious support submitting to a state agency that will require we relinquish our Federal Mining Rights to a privilege-based permit “permission” system that states dredges pollute, and that the privilege can be taken away at any time via an agency, committee or legislature of the state.
Do you trust the Government or the Legislature of California to be fair? The same Government that some correctly has accused of tyranny, and the same government that continues to defy federal law on many other issues not directly related to mining which affects our whole country and the future of our Republic. This fight against the tyranny of the Government of California has always been that the state can only regulate reasonably. They are not authorized to prohibit! Mining law is authorized through Federal law, which supersedes state law when in conflict. By submitting to the CA Water Board or CDFW for a permit will not guarantee that they cannot deny that permit (permission), at any time in the future, even after permission was given! Is that not what happened to us in 2009?
We have faith that for the first time in a long time we have an Administration in Washington that values the Constitution and the rule of law! That same Administration has recently filed suit against the State of California over FEDERAL PREEMPTION. We believe we are on the verge of seeing great things happen in our country. And boy, it is about time!
This is one analogy:
Soldiers in our Revolutionary War were cold, hungry and tired. They longed for the warmth, safety and freedom they dreamt of and fought so hard for. A number of the men figure that if they could just cut a deal with the British, they could go home to their families, hold their wives and children, and trust that they would be safe and free of tyranny for awhile. That the British would honor the compromise. This sounded very appealing and many soldiers considered compromising.
Fortunately for America, the men of those days would not compromise at all when it came to rights and freedom. Many would be willing to die, and die they did to ensure the Rights and Freedom for future generations, even if it meant extreme pain and discomfort in the present. We consider that Courageous and of Noble Character. Fortunately for us, at this point in time we do not have to face death to stand strong.
Preserving federally granted mining rights has been a core value of PLP since its inception and is a responsibility the board will not waiver from. That is why PLP was founded and we continue in this vein. We understand this point of view may not be popular with some in the mining community, and we KNOW it is unpopular with the ones who want to diminish or take our rights away altogether! We will continue to:
TAKE IT BACK AND KEEP IT!
Federal Mining rights can only be protected FEDERALLY – not at the state level. State law only fills the gaps where federal law does not speak or specifically occupy on federal lands If the prospector / miner does not trust the State of California, then the miner could support the FEDERAL “Small Miner Amendment to S. 145” and join PLP to protect your Federal Mining Rights.

Your Board of Directors,
Public Lands for the People
P.S. Read PLP’s Legal Accomplishments here:
www.publiclandsforthepeople.org/accomplishments/

2018 Grand Raffle Winners!

Thank you to all the folks who donated prizes and bought tickets! This helps keep us in the fight for our rights by paying for lawyers and other legal expenses. THANK YOU! If you have something to donate for the 2019 Grand Raffle, let us know ASAP, we are organizing it to begin in a few weeks. Watch for the announcement in the Mining Journal: www.icmj.com

½ ounce gold nugget Donated by minerskeepersom – Richard Kelsey
4 stack gold cube Donated by Goldcube – John Cross
Dry concentrator Mad Mining – Jim Henesh
Macro Gold racer Detector Donated by The Miners Cache – Brian Winter
Mining claim location service Donated by Josh Reinke – Thomas Sager
Stake claim Workshop Donated by Josh Reinke – Dick Tieben
California Mining Claim Donated by Ron Kliewer/ www.goldrushu.com – Roger Bowman
Kwik Kiln Donated by GPK Company – Robert Davies
Recirculating sluicebox Donated by Mad Mining – Laren Crawford
Goldstrike mini washplant package Donated by Goldstrike Adventures – Jeff Lawlis
Fast Furnace Kiln Donated by fastfurnacecompany – Roger wingo
Tike Strike concentrator Donated by Spikestrike sluices – Gearge Cowie
Stowaway concentrator Donated by Spikestrike sluices – Jeffrey Courter
Gold ram panning sluice Donated by Spikestrike sluices – Ron Renter