PLP Solving Dredging Problems in the Western U.S.

PLP and its members move to solve the #2 item stopping dredging in the western states. This will solve the CA Water Board, Oregon DEQ and other states implementing the Clean Water Act on dredging. The number one issue is Federal Preemption which was covered in the petition we brought out last month.

 

Certified RRR mail#__________________________

 

August 12, 2019

Donald G. Smith

 

Riggins, ID 83549

 

U.S. Environmental Protection Agency

Attn: Chris Hladick, Region 10 Administrator

1200 Sixth Ave., Suite 155

Seattle, WA 98101-3188

 

RE: Administrative Appeal & Petition for Rulemaking under 5 U.S.C. A. § 553

 

Dear Administrator Hladick,

 

I, Donald G. Smith, hereinafter referred to as “Appellant” or “Petitioner,” am in receipt of a July 24, 2019 letter and decision authored by Cindi Godsey (attached) that Appellant’s proposed regulated activities under the authority of the Army Corps. (under section 10 of the Rivers & Harbors Act) may be subject to additional permitting by your agency under section 402 of the Clean Water Act (CWA).

 

Appellant is very aware of the cases cited by the decision of Cindi Godsey’s July 24, 2019 letter.  However, because of the fact the EPA has not addressed the facts and court decisions set forth below, Appellant sets forth and Appeals said decision of the July 24, 2019 letter.

 

Appellant’s activities do not add a pollutant

within the meaning of the CWA

 

It is within the province of the Environmental Protection Agency (EPA), as contemplated by the Clean Water Act (CWA), to impose a duty to apply for a National Pollutant Discharge Elimination System (NPDES) permit, pursuant to the Clean Water Act (CWA), on individuals who are discharging pollutants, given that the primary purpose of the NPDES permitting scheme is to control pollution through regulation of discharges into navigable waters. Clean Water Act, § 402, 33 U.S.C.A. § 1342.

 

In National Pork Producers v. EPA 635 F.3d 738 (5th Cir. 2011) the court held:

 

…The 2003 Rule’s “duty to apply” required all CAFOs to apply for an NPDES permit or demonstrate that they do not have the potential to discharge. 68 Fed.Reg. at 7266. In Waterkeeper, the Second Circuit held that the 2003 Rule’s “duty to apply” was ultra vires because the EPA exceeded its statutory authority. Waterkeeper, 399 F.3d at 504. The court explained that the CWA is clear that the EPA can only regulate the discharge of pollutants. To support its interpretation, the Second Circuit examined the text of the Act. The court noted: (1) 33 U.S.C. § 1311(a) of the CWA “provides … [that] the discharge of any pollutant by any person shall be unlawful,” (2) section 1311(e) of the CWA provides that “[e]ffluent limitations … shall be applied to all point sources of discharge of pollutants,” and (3) section 1342 of the Act gives “NPDES authorities the power to issue permits authorizing the discharge of any pollutant or combination of pollutants.”  Waterkeeper, 399 F.3d at 504. Accordingly, the Second Circuit concluded that in the absence of an actual addition of any pollutant to navigable waters from any point, there is no point source discharge, no statutory violation, no statutory obligation of point sources to comply with EPA regulations for point source discharges, and no statutory obligation of point sources to seek or obtain an NPDES permit in the first instance. (Emphasis added.)

 

Id. at 505. The Second Circuit’s decision is clear: without a discharge, the EPA has no authority and there can be no duty to apply for a permit. (Note: this holding was multi-circuit, including the 9th Circuit Court of Appeals.)

 

Specifically, the United States Supreme Court explained:

 

[T]he National Pollutant Discharge Elimination System [requires] a permit for the “discharge of any pollutant” into the navigable waters of the United States, 33 U.S.C. § 1342(a). The triggering statutory term here is not the word “discharge” alone, but “discharge of a pollutant,” a phrase made narrower by its specific definition requiring an “addition” of a pollutant to the water. S.D. Warren Co. v. Maine Bd. of Envtl. Protection, 547 U.S. 370, 380–81, 126 S.Ct. 1843, 164 L.Ed.2d 625 (2006).

 

Appellant acknowledges that much of the reasoning behind the EPA’s request for a section 402 permit is to address turbidity stirred up from the act of suction dredging, not the actual addition prerequisite Congress mandated.  Turbidity from a suction dredge is not a product of an addition, rather, it is the relatively insignificant movement of native substance of local rock, sand and sediment in contrast to that which is carried on at much greater volumes by natural weathering processes every season by acts of God.

 

To illustrate this point the court in Froebel v. Meyer 13 F.Supp.2d 843 (E.D. Wisconsin, 1998) held:

 

…Movement of indigenous sediment through a dam was not a “discharge of a pollutant” that would require National Pollutant Discharge Elimination System (NPDES) permit pursuant to Clean Water Act (CWA). Federal Water Pollution Control Act, §§ 402, 502(12), as amended, 33 U.S.C.A. §§ 1342, 1362(12).

 

The court added:

Redepositing of indigenous sediment caused by state agency’s removal of dam did not result in any “discharge of dredged material” that would require permit from Army Corps of Engineers under Clean Water Act (CWA) and either possible version of implementing regulations, even if manner in which dam was removed created a “scouring action” that disturbed sediment and funneled it downstream. Federal Water Pollution Control Act, § 404(a), as amended, 33 U.S.C.A. § 1344(a); 33 C.F.R. § 323.2(d).” (Emphasis added)

 

Unlike the EPA, Appellant does not rely on Dave Erlanson’s proceeding by EPA’s own administrative law judge, rather, a de nova review proceeding by an Article III Federal District Court judge on appeal from a federal magistrate.  The decision in U.S. v. Godfrey, Eastern District CA 2:14-cr-00323 JAM (2015) illustrates that a suction dredge sluice box is not a point source discharge within the meaning of the CWA.  The District Court found as a matter of law and fact the following:

 

Defendant is alleged to have violated 36 C.F.R. § 261.11, which prohibits “[p]lacing in or near a stream, lake, or other water any substance which does or may pollute a stream, lake, or other water[.]” 36 C.F.R. § 261.11(c). Defendant argues that his conviction on this count must be reversed because “[p]utting materials from the creek back into the creek does not constitute the ‘placing’ of a ‘pollutant’ into the creek.” (Opening Brief at 17.)

 

Defendant cites language from a Supreme Court case concerning the Clean Water Act: “If one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not ‘added’ soup or anything else to the pot.” Opening Brief at 16-17 (citing S. Florida Water Mgmt.  Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 110 (2004)). Defendant contends that the evidence offered at trial shows that he “did not introduce pollutants such as chemicals, oils, outside dirt, other liquids, or trash into Poorman Creek.”

 

…The legal issue of whether the release of materials found within the high-water mark of Poorman Creek constitutes “placing a pollutant” into the creek remains. As this is an issue of statutory construction, the Court’s review is de novo. United States v. Montes-Ruiz, 745 F.3d 1286, 1289 (9th Cir.2014). (Emphasis added.)

 

As an initial matter, the structure of 36 C.F.R. § 261.11 is informative. The subsection is labeled “Sanitation” and 36 C.F.R. § 261.11(c) is surrounded by prohibitions on (1) depositing in a toilet or plumbing fixture a substance which could interfere with its operation; (2) leaving refuse, debris, or litter in an unsanitary condition; 3) failing to properly dispose of all garbage; and (4) improperly dumping refuse, debris, trash, or litter. 36 C.F.R. § 261.11(a)-(e). Thus, the provisions surrounding 36 C.F.R. § 261.11(c) lend support to Defendant’s argument that “any substance which does or may pollute” must be a foreign substance, not a substance which is already found within the high-water mark of the river. (Emphasis added.)

 

Although “pollute” is not defined within Part 261, the dictionary definition of “pollute” is instructive. See Phillips v. AWH Corp., 415 F.3d 1303, 1319 (Fed. Cir. 2005) (noting that “dictionaries, encyclopedias and treatises are particularly useful resources to assist the court in determining the ordinary and customary meanings of [relevant] terms”). The Merriam-Webster Dictionary offers two definitions of “pollute:” (1) “to make physically impure or unclean;” and (2) “to contaminate (an environment) especially with man-made waste.” As with the structure of the regulation, these definitions suggest that “placing any substance which does or may pollute” necessarily entails the introduction of a foreign substance, possibly even a man-made substance. (Emphasis added.)

 

Returning to the Supreme Court’s “one ladle of soup” example, the Court agrees that the present case is not closely analogous. S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 110 (2004)). Defendant did not merely remove water from one location in Poorman Creek and return that same water to another location in Poorman Creek. Rather, he diverted the water through his mining operation, and returned it, along with “sands, silts and clays and bottom deposits” to Poorman Creek, downstream of his operation. However, as noted by the Magistrate Judge and as emphasized now by Defendant, the entire mining operation occurred beneath the high-water mark of Poorman Creek. Importantly, there is no evidence that any foreign substance (such as a chemical) was introduced to Poorman Creek. See RT2 at 2-44 – 2-45 (Note: the Magistrate Judge, noting that “there wasn’t any evidence that I’m aware of that any of those broken up rocks or chemicals ended up in the creek”); see also  RT1 at 182 (Testimony of Huggins, noting that “chemicals getting into the water” was “not the major concern in this case”.)

 

In this sense, a more apt analogy may be that of a bowl of cereal. At its low point, Poorman Creek is much like a bowl of Cheerios with very little milk in it, with a number of Cheerios pieces “stranded” up on the sides of the bowl. Filling the bowl with milk releases those “stranded” Cheerios pieces back into the milk, but nothing foreign has been added to the bowl. Similarly, Defendant’s operation merely released sediment that was already part of the creek-bed back into the creek. (Emphasis added.)

 

the Government’s evidence was insufficient to sustain Defendant’s conviction under 36 C.F.R. § 261.11 for polluting the creek. Accordingly, Defendant’s conviction on Count 5 is reversed.” (Emphasis added)

 

Appellant believes the analysis of the facts and law by District Judge John Mendez of the Eastern District of California in U.S. v. Godfrey, supra is directly on point controlling the important factors of CWA law and its application in relation to Appellant’s situation.  Appellant is not legally bound to submit a 402 EPA permit when there is no “addition” to report, nor is he bound to report that which does not exist in violation of the basic tenets of the body of law on the maxims of impossibilities—the law does not require the impossible.

 

Appellant is informed and believes that the EPA is outside its authority regulating non-addition producing activities such as suction dredging.  This is misplaced and in contradiction of the Congressional mandate of the CWA, i.e., to only regulate “additions” and foreign introduced substances.

 

Appellant wishes to point out the fact that if all materials coming off a suction dredge are to be deemed a point source pollutant rather than reclamation to remove heavy metal toxins would be made a legal impossibility, creating no incentive for reclamation on water-covered lands of the United States nor improving spawning habitat for spawning salmon.  See: https://www.publiclandsforthepeople.org/reclaiming-our-waterways/

 

Finally, Appellant is informed and believes that the EPA may have already violated the Administrative Procedures Act (APA) under 5 U.S.C.A. 553 by identifying and singling out a suction dredge as a point source without a proper rulemaking in the Federal Register with notice to the public. This places Appellant at a disadvantage to address the science and expertise in finding that a suction dredge is, or is not, a point source or a cause of pollution.  This also places the July 24th, 2019 decision by Cindi Godsey in a position that a future court may conclude the EPA is acting in an arbitrary and capricious fashion for failure to comply with the APA.

 

Therefore, pursuant to the holding in Sackett v. United States Environmental Protection Agency, 566 U.S. 120 (2012), Appellant requests that the decision made by Mrs. Godsey be rescinded under proceedings protected by the Administrative Procedures Act with a decision informing appellant that he is free to pursue permitting exclusively under the Army Corp and section 10 of the Rivers & Harbors Act respectively without the need for a 402 CWA permit from the EPA.

 

 

 

 

 

Request for Rulemaking under 5 U.S.C.A. § 553

 

Don G. Smith, hereinafter referred to as “Petitioner,” requests that pursuant to 5 U.S.C.A § 553(e) that the EPA and the Army Corp jointly promulgate regulations clarifying that suction dredges do not as a matter of practice constitute a point source discharge of a pollutant namely because they do not add a pollutant within the meaning of the CWA.  The EPA strictly regulates activities that add pollutants to the nation’s navigable waterways but exempts those activities (non-additions) where it has no expressed or implied jurisdiction from Congress.

 

Petitioner wishes to point out the fact that if all materials coming off a suction dredge are to be deemed a point source pollutant rather than reclamation to remove heavy metal toxins would be made a legal impossibility, creating no incentive for reclamation on water-covered lands of the United States nor improving spawning habitat for spawning salmon.  See: https://www.publiclandsforthepeople.org/reclaiming-our-waterways/

 

A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals” has now been released by an interagency report.  This strategy was set in motion by President Trump’s Executive Order 13817.  Call to action item #5.16 states:

5.16 Evaluate Sections 404 and 408 of the Clean Water Act and Sections 10 and 14 of the Rivers and Harbors Act and develop recommendations to streamline and improve the permitting process. (DOD [USACE]; 2-4 years)

 

This would be an ideal time to make Appellant’s recommendations into a clarified rulemaking.

 

This rulemaking should make consistent that which has been found by numerous courts in the last 20 years (partially cited above) that not all activities such as sluicing and suction dredging constitute a regulatable event subject to CWA permitting.  It would also provide regulatory certainty to the reclamation and suction dredge mining industry of the United States.

 

Respectfully submitted,

 

__________________________________

Donald G. Smith

 

 

 

Enclosure

 

Cc:    Via electronic mail

Duane Mitchell, Army Corps of Engineers, Walla Walla District

Kat Sarensen, U.S. Fish & Wildlife Service

David Arthaud, National Marine Fisheries Service

Aaron Golart, IDWR

Andrew R. Wheeler, EPA Administrator Washington D.C. c/o Cathy Milbourne

Public Lands for the People c/o Clark Pearson

Scott Harn, ICMJs Prospecting and Mining Journal

 

2019 Grand Raffle Winners!

We would like to thank everyone who participated in this year’s Grand Raffle, both those who donated prizes and those who purchased raffle tickets. Together we made it a success! This raises funds to support the work we are doing to preserve and take back our rights granted to us by the 1872 Mining Act and other key laws.
1. 1/2 ounce nugget: Harold Clapper
2. 4 stack Gold Cube with Trommel: Foothills Prospectors
3. Makro Gold Racer detector: Norman Bauer
4. Mad Mining Electric Drywasher: Betty Peck
5. Mad Ming Cleanup Kit: Brett Humphries
6. Mad Mining 1105 Sluicebox: Doug McCormick
7. Fast furnace Kiln: Frank Madsem.
8. 20 acre mining claim: Aaron Tuck
9. Goldstrike Adventure package: Jon Wentzel
10. Josh Reinke’s Claim Location Service: Everett GPAA Chapter
11. 1851 Colt replica: Michael Smith
12. Spin It Off: Bill Heinle
13. Spin It Off: Francis Mcnaul
14. Bucket Flair: Tony LaValle
15. Bucket Flair: Robert Young
MINI-PREVIEW OF 2020 Grand Raffle and PLP’s 30th Year defending your rights to enjoy multiple use on Public Lands:
1. 10 Ounces of Silver donated by John Godfrey
2. 20 Acre Placer Mining Claim donated by Ron Kliewer
3. And…Much More to Come!

MINERS FILE PETITION TO CHANGE FEDERAL MINING REGULATIONS

On June 18, 2019, In the wake of the Bohmker case being denied a hearing by the Supreme Court, a coalition spearheaded by the Waldo & Galice Mining Districts, along with nine other mining organizations including PLP, sent a “Petition for Rulemaking to Stop State-Law Based Prohibitions of Mining on Federal Lands” to Secretary of Interior Bernhardt and Secretary of Agriculture Purdue. Read the petition for rulemaking document here.

A more through explanation of how to send a letter in support of this important petition can be found on the Waldo Mining District website.

Submitted by Tom Kitchar of the Waldo Mining District:

In their Petition, the Miners request that the BLM regulations at 43 CFR 3809, and the Forest Service regulations at CFR 228, be amended where the regulations currently allow or authorize states to set unlimited restrictions (above and beyond any federal regulations) on mining on lands of the United States open to mining.

Q:  How can the BLM or FS (lawfully) authorize the states to do something they themselves are barred from doing? 

A:  They can’t… but they did it anyway because guess-who was President.

Amendments to the Mining Law in 1955 gave the United States the right to manage the non-mineral resources on unpatented mining claims providing that:

 “…any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto…”     30 U.S.C. 612(b)  (emphasis added)

Under the U.S. Constitution, Congress has the ultimate authority over all lands owned by the United States.  Congress has delegated the authority to manage the public domain lands to a variety of federal agencies, including the Dept. of Interior (and BLM) and the Dept. of Agriculture (and Forest Service), who manage the Public Lands that are open to mining.

However, 30 U.S.C. 612(b) prohibits the federal agencies from endangering or materially interfering with mining on unpatented claims.  This is because on mineralized land, mining is the “best use” and all other uses are at the most equal or secondary to mining (this is why the BLM or USFS cannot “prohibit” mining).

So, in the early 2000’s, the BLM and USFS amended their mining regulations adding language requiring all miners obtain all required state permits… and then went on to say even if those state regulations are more strict than the federal regulations require… with no set limit.

The Rinehart and Bohmker cases were denied by the U.S. Supreme Court in part because the BLM and USFS regulations gave the states the authority to restrict mining basically anyway they wanted, and apparently without any federal oversight.  If the state required a permit, all the BLM or USFS cared about was that miner obtained the permit, without really caring about what restrictions were in the permit…

…and thus, California shut down all suction dredge mining statewide in 2009, followed by Oregon’s ban on motorized in-stream mining in most streams in 2017 – and got away with it.  Because of those regulations, and the standing U.S. 9th Circuit decision in Bohmker, until those regulations are amended, the states have carte blanche to regulate or restrict nearly any mining or other use of the federal lands by passing a law (for any reason and without any proof under the guise of “protecting the environment” from an undisclosed harm to ???); even to the point of a prohibition.

Q:  How can the BLM or FS (lawfully) authorize the states to do something they themselves are barred from doing? 

 A:  They can’t… And now we are formally petitioning for change as allowed under 5 U.S.C. § 553(e) to amend the 3809 and 228 regulations adding language that any state restrictions on mining on federal lands that endanger or materially interfere with the mining are automatically preempted by federal law… limiting state authority to reasonable “standards based” restrictions without any prohibitions or moratoriums.

 

LAST Call for 2019 Grand Raffle Tickets

Here we are again, it’s now officially THE LAST MINUTE! What am I talking about you ask? Well it’s the HUGE annual 2019 Grand Raffle drawing of course! AND it is happening JULY 9th!

This means you have mere days to call in your order. It’s now too late to order by snail mail. We have operators standing by. Well, not really. We have a couple of dedicated volunteers who will get back to you as fast as possible when you leave a message on our toll free phone line. We keep our overhead as low as possible so all proceeds can be put into the fight. There are a lot of great prizes too! Even if you don’t happen win a prize, please support the businesses that donated the prizes, because they are big supporters of PLP and what we are accomplishing.

The DEADLINE IS Midnight JULY 7TH for Grand Raffle Ticket ordered by phone. The Grand Raffle is a great way to support the fight to keep our public lands open for multiple use PLUS win some great gear, expert help, club memberships, a mining claim and GOLD ! The Grand Raffle drawing is right around the corner on July 9th and we don’t want you to miss out!
Since July 9th is the Grand Raffle Drawing, so at this late date we are not mailing out your tickets. Instead, we are assigning your tickets to you as you purchase them and are putting them in the ticket barrel to be included in the drawing.
If you wish to purchase tickets, you can call our toll free number (844)-PLP-1990 which is (844) 757-1990.

Why is it important to buy PLP Grand Raffle tickets? Because the raffle helps raise critical funds to help us stay in the fight for such things as bringing back dredging on Public Lands.
Why is all this important? Because it matters greatly to the next generation what we do now. If we fail to act, we fail our children and grandchildren. We are not giving up! We are the Patriots of our generation. It’s about more than Mining Rights, it’s about Freedom!

You can sign our petition to be part of the solution here: www.publiclandsforthepeople.org/NDAA
Ron Kliewer
President

No photo description available.

JUNE Newsletter

PLP exists to “Represent and assist outdoor user groups and individuals interested in keeping public and private lands open to prospecting, mining and outdoor recreation through education, scientific data and legal means.”

Hello Friends,

The much-anticipated “Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals” has now been released by an interagency report.  This strategy was set in motion by President Trump’s Executive Order 13817, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” on December 20, 2017. The Executive Order directs the Secretary of Commerce, in coordination with heads of selected executive branch agencies and offices, to submit a report to the President that includes key points to help the ailing U.S. mining industry and the U.S. minerals supply chain.

This report focuses on 6 call to action items, 24 goals, and 61 recommendations that describe specific steps that the federal government will take to achieve the objectives outlined in Executive Order 13817.  Call to action number 5 is of the most importance to PLP and our members because this section will benefit the average miner and public lands user who embraces multiple-use access principles upon our public lands.  PLP’s Clark Pearson and the ICMJs Prospecting & Mining Journal’s Scott Harn delivered many educational materials (and complaints) in multiple meetings with federal agency department heads over the course of two years covering many of the points now called for in this new Federal Strategy report.

We wish to thank our membership and our financial sponsors that allowed us to make these important trips to DC so that the decision makers could better understand our specific needs in the over-arching quest for regulatory relief.

The following subparts of call to action number 5 we wish to highlight and are as follows:

 5.2         Revise land-use planning processes to require that Surface Management Agencies (SMAs) designate and classify lands based on whether they are prospectively valuable for mineral development.

5.3          Revise policies to ensure Federal lands identified as prospectively valuable for exploration or development of mineral resources are properly considered before they can be recommended for withdrawal or encumbered with a land-use designation that would restrict the development of these resources. (DOI [BLM] and USDA [USFS]; 1 year)

5.4          Review existing withdrawals, land-use designations, and planning allocations and recommend appropriate measures to reduce unnecessary impacts that they may have on mineral exploration, development, and other activities. Any analysis performed should quantify and qualify the economic and national security implications of: reducing the size of an existing withdrawal, reducing the area affected by a land-use designation, changing planning allocations, or revoking an existing withdrawal. When deciding the order in which to review existing withdrawals, restrictions, or allocations, land management agencies should prioritize consideration of areas with the greatest potential for discovery of critical minerals. (DOI [BLM] and USDA [USFS]; 2 years)

Mining claim holders may be guaranteed reasonable access across Federal lands to their mining claims by law.  However, the term “access” is not clearly defined under existing policies and this leads to problems with the implementation of travel management plans. Travel management plans identify which roads or trails are open to motorized vehicles, off highway vehicles, and identifies areas that may be closed altogether and blocked from motorized use. However, these plans do not adequately account for the importance of access to lands for mineral development. Accordingly, SMA’s travel management plans should be created or amended to prioritize access for mineral exploration. Further, existing infrastructure should be maintained or improved to allow access to mineral resources. Maintaining infrastructure may be the responsibility of the SMA or the private sector and depends on the purpose of the infrastructure.

5.5          SMAs should create or amend travel management plans to facilitate access for exploration and development of minerals to the extent practicable. When deciding the order in which to amend or create new travel management plans, land management agencies should prioritize consideration of areas that contain the greatest critical mineral potential. (DOI [BLM] and USDA [USFS]; 1-2 years)

Note: Currently, there is no agreement between federal and state regulatory agencies, industry, non-governmental organizations, and the Government Accountability Office on a uniform definition for time spent reviewing, processing, and issuing permits for prospecting, exploring, and developing a mine or mine site. Accordingly, land-use management and permitting agencies do not have suitable tools to analyze the performance of permitting processes. It is PLP’s opinion that this will most likely usher into play federal pre-emption of conflicting state prohibitions that is currently on display in California and Oregon and resolve them in the miner’s favor absent real science.

5.6          Develop a publicly accessible online system to track milestones for mining projects, including the time it takes State and Federal agencies to review, process and issue permits. (DOI [BLM] and USDA [USFS]; 1-2 years)

5.7          Update agency NEPA processes to streamline NEPA analysis with an emphasis on providing timely processing of mining Plans of Operations.  (DOD [U.S. Army Corps of Engineers (USACE)], DOI [BLM], and USDA [USFS]; 2-4 years)

5.10        Revise BLM and USFS procedures to allow for the incorporation and validation of existing environmental review and analysis for mining projects completed by States and other entities. (DOI [BLM] and USDA [USFS]; 1-2 years) (I think we know what State reviews are Not Valid)

5.11        Provide recommendations for revisions to 43 CFR 3809, Surface Management, and to 36 CFR 228 Subpart A, Locatable Minerals, to streamline and reduce redundant reviews. (DOI [BLM], USDA [USFS]; 1-2 years)

5.12        Harmonize regulations that affect surface mining. (DOD [USACE], DOI [BLM], and USDA [USFS]; 1-2 years)

5.14        Execute MOUs for the review of Plans of Operation for mines with mixed ownership status that includes timelines and procedures for participation and dispute resolution. (DOI [BLM] and USDA [USFS], in coordination with State agencies; 1-2 years)

_______________

There you have the top ten highlights from the guidance report, but there are many more. Overall, PLP is very pleased with the direction of this report and the upcoming results through de-regulation that will follow.  America will be stronger and more secure without sacrifice to the environment.  The full report can be viewed online.

Q: What does all this mean?  A: New, revised travel plans must consider unpatented claimholders and the mining industry must be accommodated in revised mineral regulations that work for us and are truly reasonable, not guided by arbitrary bureaucratic terms that can be written by the Sierra Club and weaponized against the miner.

And finally, it potentially means—for those miners in California and Oregon—that the Trump administration may move to displace prohibitive state regulations that cannot be harmonized or validated with respect for, or in accordance with, a federal preemption mining claim located upon federal managed land.  Now wouldn’t that be great!

PLP expects a draft of the new mineral regulations to come out next year.  PLP will be engaged in this upcoming rule cleaning process in DC and ICMJ Prospecting & Mining Journal will report on it in greater detail in the coming months.

PLP’s proposed amendment to the National Defense Authorization Act (NDAA) called “Critical Minerals: National Security Amendments to the NDAA”, for the time being, has taken a back seat to Congressman Amodei’s reintroduced proposal on Critical Minerals.  In the meantime, we are encouraged by support from the leadership at the Western Caucus that two of our amendments (sections 104-105) will be integrated into a compatible bipartisan bill in the near future.  These two sections are to clarify EPA “incidental fallback” and to preclude MSHA mine owner/operators with no employees from being treated like large corporate entities. They appear to be the least controversial, yet will help most small miners in the process.

Also, PLP has renewed our push at the federal EPA to get a resolution on “incidental fallback” so the California State Water Resources Control Board, Oregon’s DEQ, and the federal regional offices of the EPA do not require 402 permitting for suction dredge miners because the activity fits squarely within this exemption. This will squash the state-rigged game and torture cycle of requiring a permit and then not issuing one.

If you have not already signed on to the support petition we have on our website, please do so. The Critical Minerals amendments are 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’s petition drive is at: https://www.publiclandsforthepeople.org/take-action/ where you can read the proposed legislation and support material and sign our petition to US Senators and Representatives. Thousands of signatures will prove to the legislators the groundswell grassroots support is there and convince them that the time to act is now.  ICMJs Prospecting and Mining Journal also has it available for viewing and comment at: www.icmj.com, and has faithfully documented our progress in Washington, D.C.  The ICMJ has 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 sending to their mailing address: ICMJ, P.O. Box 2260, Aptos, CA 95001. You can read the latest update on our trips to DC online.

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.

We look forward to hearing from you,

JOIN, VOLUNTEER or DONATE

Your PLP Board of Directors

Public Lands for the People, 23501 Burbank Blvd., Woodland Hills CA 91367

PLP CALL TO ACTION

2019 article by Brad Jones that was published by GPAA in the June Pick and Shovel Gazette:

PLP proposes amendments to NDAA in support of mining rights

 

By Brad Jones

 

After many years of fighting costly court battles, Public Lands for the People has launched a new strategy to defend mining rights for all miners large and small.

 

This year alone, PLP — working in conjunction with Scott Harn, editor and publisher of ICMJ’s Prospecting and Mining Journal — has made four trips to Washington, D.C. to meet with lawmakers, their aides and federal government departments. And, a fifth trip is expected soon.

 

PLP’s researcher Clark Pearson was invited to the White House in 2018 and he and Harn recently returned from a second meeting at the White House in April.

 

“Both meetings were very important to express the concerns of small miners to President Trump’s key advisors,” Pearson said. “For the last three years, PLP has distributed education materials to members of Congress, and for the last two years has been engaging in ongoing meetings with top officials at the Environmental Protection Agency (EPA), Mine Safety and Health Administration (MSHA), the U.S. Forest Service, Department of Interior and even the Pentagon, providing specific language needed regarding regulatory certainty for the mining industry.”

 

PLP has long held the position that without consistency and clearly defined regulations, America’s mining industry will continue to find itself in peril. For the last few decades, mining groups have been railroaded into state courtrooms to fight the onslaught of overregulation spurred on by sue-and-settle lawsuits from radical environmental lobby groups which have been accused of working in collusion with federal, state and local agencies to restrict mining operations and peddle government land grabs.

 

Individual states trampling on the federal rights of miners under the law has been the crucible of contention for decades. And, at the crux of all the court battles is the miners’ steadfast belief in their congressionally granted mining rights under the federal Mining Law of 1872, and federal preemption. In other words, miners believe that federal mining law supersedes, or preempts, state law under the Supremacy Clause of the Constitution of the United States, which states that federal law is the “supreme law of the land,” and therefore trumps state law.

 

“Without a reasonable permit system and access to known and potential mineral deposits, there cannot be regulatory certainty. Without regulatory certainty, there will be no development of critical minerals in the United States and no critical minerals supply chain,” Harn said. “And, without a critical minerals supply chain in America, our national security is continually in jeopardy.”

 

National Defense

For these reasons, PLP has proposed amendments to the National Defense Authorization Act. The proposed legislation, “Critical Minerals: National Security Amendments to the NDAA,” is subtitled “Breaking China’s grip on America’s mining and production of critical minerals.” It is further subtitled, “China’s well-executed plan, complicity of the American tech industry and U.S. policy failures led to a major national security vulnerability in critical minerals.”

 

The proposed amendments, if adopted, would:

  • Provide regulatory certainty that is critical for the mining industry and American investment in critical minerals.
  • Provide relief from America’s dependency on China and other unfriendly nations for critical minerals essential for our high-tech and military needs, which is essential for America’s national security.
  • Help curb the devastating environmental destruction occurring in China, which has profound and unwelcome effects on the United States and the world.
  • Help prevent the theft of intellectual property by eliminating the need for American companies to relocate manufacturing to China in order to secure a critical mineral supply chain.

 

The proposed legislation is available on PLP’s website: PublicLandsForThePeople.org/ndaa

 

Congress oversees the defense budget mainly through two yearly bills: the NDAA and defense appropriations bills. The authorization bill determines the agencies responsible for national defense, sets funding levels and policies under which money will be spent.

 

PLP President Ron Kliewer said the NDAA provides a practical means for miners’ voices to finally be heard.

 

“Our best bet is to get mining rights legislation into the NDAA because Congress has to pass it every year. I don’t see any other way,” Kliewer said. “In the last three years, American companies have made $1.66 billion in mining deals with the Chinese.”

 

The actual mining, he said, is taking place in China and other countries, and although this is a lucrative arrangement for the Chinese government and American tech companies, it is putting American national security at risk.

 

After countless hours of legal research, PLP began to develop a new strategy to connect with the powers-that-be in D.C. by educating lawmakers about the importance of mining to national security.

 

PLP board members were also shocked to discover that some of the so-called national mining advocacy groups appear to be working against the best of interests of small-scale miners.

 

So, with nowhere left to turn it seemed, PLP decided to go to where the buck stops: Congress and the Trump administration.

 

“We’ve learned that we can’t get a fair shake in the California courts,” Kliewer said. “The bigger picture is what’s going on nationally and internationally. We’ve learned where to put our efforts to get the biggest bang for the buck, and by getting this proposed legislation into the National Defense Authorization Act, it will take precedence over state jurisdiction.”

 

“We’re making inroads but we haven’t gotten any legislation through yet,”  The proposed legislation is currently going through the final edit and formatting by legislative council on Capitol Hill.”  Kliewer said.

 

The Trump Factor

PLP remains optimistic with the pro-mining and national security policies of President Donald Trump compared to the restrictive anti-mining policies of former president Barack Obama and his administration.

 

PLP Treasurer Walt Wegner concurred that the Trump administration is more mining friendly and has shown a much deeper interest in the need for securing the availability and independent production of strategic minerals for national defense.

 

“Trump has changed the direction of where we were going as far as environmental issues. If he could just wave his magic wand, he would help us tomorrow, but this president has a big part of Washington including the Democrats and Republicans against him,” Wegner said. “You’ve got to remember he beat the hell outta the Republicans, too. He’s been fighting an uphill battle since the day he got into office.”

 

While Trump has voiced many concerns about China’s unfair manipulation of currency and theft of intellectual property rights in the global marketplace, the issue of strategic minerals for America’s national defense rarely, if ever, surfaces in the mainstream news cycle.

 

“This president is all about national security. He’s going after China. He’s put tariffs on them. China has been ripping us off. This has been one of his main platforms,” Wegner said. “We are importing over 90 percent of our strategic minerals from China, so it is a national security issue. Hands down! We have taken it to the top level of our government’s concern.”

 

China could shut down the production of rare earth minerals overnight and it would take the U.S. at least two years to recover with its own mining production, he said.

 

“The military is on board with us but they’re not a political arm. So, I think this president has done a lot to help us, but he’s got a lot on his plate. We’re encouraged that these amendments will go into the National Defense Authorization Act,” Wegner said. “Trump is doing some great things! We haven’t seen a president like this ever. I would say this president is more conservative than any conservative president we’ve had in years and years.”

 

PLP’s Mission

Despite the new strategy, the fundamental mission of PLP and the vision of its late founder Jerry Hobbs have remained the same since its inception in 1990, said Wegner.

 

“We haven’t changed our course. We’ve stayed with his vision and we’ve stayed with our no-compromise philosophy. Of course, there is no way to say, ‘Well, Jerry Hobbs would have done this’ or ‘Jerry Hobbs would have done that.’ A lot of people do that, but very few people knew Jerry as well as I did. I was vice-president, so I knew him as far as PLP goes better than anybody.”

 

For many years, PLP was involved in court battles in support of mining rights, most notably those in support of suction dredge mining when California imposed a statewide ban in 2009.

 

“What we’ve found through years of litigation ­­— and Jerry Hobbs really recognized this too — is that the courts are corrupt and we weren’t getting justice, especially in California,” Wegner said.

 

And, although PLP wanted to appeal Judge Gilbert Ochoa’s ruling on the suction dredge cases in California Superior Court, the mining community had grown weary of legal wrangling after small-scale gold miner Brandon Rinehart’s federal preemption case was overturned, and funding completely dried up, Wegner said.

 

“This left the prohibitive 2012 California suction dredge mining regulations in place that had been promulgated illegally, relying on a phony Supplemental Environmental Impact Report,” Kliewer said.

 

Educating Lawmakers

One of the problems miners face in the courts is that federal mining laws are often vague and should be updated to cover technological advances and more modern mining methods, Wegner said. And, because creating laws is the job of Congress — not the courts or sometimes partisan, rule-making bureaucrats — the best place to start is in Washington, D.C.

 

Considered archaic by some, the Mining Law of 1872 doesn’t spell out that it’s legal to use a suction dredge on your mining claim, for example, because suction dredges didn’t exist when the law was written.

 

“We need Congress to speak about a lot of issues on what has happened between 1872 and now. Congress really hasn’t spoken on this,” Wegner said. “We are not going to win in court here. In our opinion, it’s a corrupt system in California. But we can win in court if Congress speaks. That’s why we’ve taken this journey to get our amendment in the National Defense Authorization Act.”

 

Though PLP’s board of directors pondered the idea of proposing stand-alone legislation, the board knew it would mean digging deeper into miners’ pockets to pay for lobbying.

 

“We realized that miners, with our meager money, are not going to get stand-alone legislation,” Wegner said. “And, the State of California is never going to help the small-scale miners. We don’t need their permission and that’s why we’ve taken this route.”

 

Instead, PLP is encouraged with its latest move to educate Congress on strategic minerals and mining rights through proposed amendments to the NDAA.

 

A Practical Approach

“It’s about national security and minerals. It’s not all about gold,” Wegner said.

 

While some gold miners may scoff at PLP’s proposed legislation because it’s not hyper-focused on gold mining specifically, Wegner said skeptics may be failing to see the forest for the trees and asked that they try harder to see the big picture.

 

“Read it, and then read it again,” he said. “They will benefit. What we are pushing for in our proposed critical minerals legislation will support small miners as well.”

 

Harn agreed that the proposed amendments, if passed, will have a far-reaching, positive impact on the entire mining industry.

 

“Gold miners will certainly reap the benefits of our proposed critical minerals legislation, but the focus needs to be on critical minerals to get our proposals through Congress,” Harn said.

 

Whether newly re-established or strengthened mining rights result in the excavation of rare earth minerals used in national defense or other minerals that are refined into metals used for manufacturing solar panels, wind turbines, computers, smart phones, electric cars and all things green, all miners and America itself will benefit, Wegner explained. Critical minerals are a necessary component for everyday items from flat-screen televisions to lithium batteries to aircraft components, radar arrays and missile guidance systems.

 

“It’s all mined. We know this,” he said.

 

Mining Districts

Wegner acknowledged that mining districts remain one of the most powerful tools small-scale miners possess in their efforts to reclaim or strengthen mining rights on public lands in the western states, but motivating miners to re-establish mining district boards can be like trying to herd cats at times, he admitted.

 

Though PLP is no longer actively involved in coordinating the re-establishment of mining districts, it still supports the concept.

 

“Mining districts are the most powerful tool small-scale miners have, but lighting a fire under them or motivating them I don’t know how to do,” he said. “We encourage it. Mining districts could make huge progress on the ground level.”

 

Grassroots Support

Wegner stressed the importance of miners continuing to support PLP by backing the proposed amendments to the NDAA, purchasing a raffle ticket, becoming a member or donating funds.

 

PLP already has the attention of lawmakers in Washington, but with all the activity in D.C. and competition with other groups and causes, the challenge is to keep lawmakers focused on the importance of these proposed amendments, he said. Doing this means traveling to Washington, attending meetings and spending time educating lawmakers about the importance of mining rights.

 

“We’re a grassroots group on a shoestring budget but we’ve been able to make progress in D.C. because our cause is great. Everybody loves it. It’s for the nation and our security,” said Wegner.

 

WHAT YOU CAN DO:

  • TAKE ACTION! Participate by endorsing PLP’s proposed legislation:

PublicLandsForThePeople.org/take-action

PublicLandsForThePeople.org/ndaa

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