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 (5^th 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 9^th 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 24^th, 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

 

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. 9^th 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.

 

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!

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!

Critical Minerals: Breaking China’s Grip on American Mining and Production Through the NDAA

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 9^th 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 5^th 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 9^th Circuit Court of Appeals. (Regarding U.S. v. Godfrey, where he got the shaft and the 9^th 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 9^th 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 9^th 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 9^th 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 21^st 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