[Federal Register Volume 63, Number 59 (Friday, March 27, 1998)]
[Rules and Regulations]
[Pages 15042-15062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7924]
[[Page 15041]]
_______________________________________________________________________
Part III
Department of Agriculture
_______________________________________________________________________
Forest Service
_______________________________________________________________________
36 CFR Part 292
Smith River National Recreation Area; Final Rule
Federal Register / Vol. 63, No. 59 / Friday, March 27, 1998 / Rules
and Regulations
[[Page 15042]]
DEPARTMENT OF AGRICULTURE
Forest Service
36 CFR Part 292
RIN 0596-AB39
Smith River National Recreation Area
AGENCY: Forest Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule implements Section 8(d) of the Smith River
National Recreation Area Act of 1990 and sets forth the procedures by
which the Forest Service will regulate mineral operations on National
Forest System lands within the Smith River National Recreation Area.
This rule supplements existing Forest Service regulations and is
intended to ensure that mineral operations are conducted in a manner
consistent with the purposes for which the Smith River National
Recreation Area was established.
EFFECTIVE DATE: This rule is effective April 27, 1998.
FOR FURTHER INFORMATION CONTACT: Sam Hotchkiss, Minerals and Geology
Management Staff, (202) 205-1535.
SUPPLEMENTARY INFORMATION:
Background
The Smith River National Recreation Area (SRNRA) was established by
the Smith River National Recreation Area Act of 1990 (the Act) (16
U.S.C. 460bbb et seq.). The purpose of the Act is to ensure ``* * * the
preservation, protection, enhancement, and interpretation for present
and future generations of the Smith River watershed's outstanding wild
and scenic rivers, ecological diversity, and recreation opportunities
while providing for the wise use and sustained productivity of its
natural resources * * *.''
In order to meet the purposes of the Act, Congress directed the
Forest Service to administer the SRNRA to, among other things, provide
for a broad range of recreation uses and improve fisheries and water
quality. Subject to valid existing rights, Congress prohibited
locatable mineral operations, prohibited mineral leasing (including
leasing of geothermal resources), and limited the extraction of mineral
materials within the SRNRA to situations where the material extracted
is used for construction and maintenance of roads and other facilities
within the SRNRA and in certain areas excluded from the SRNRA by the
Act.
The SRNRA consists of approximately 300,000 acres of National
Forest System lands in the Six Rivers National Forest in northern
California. The Act divides the SRNRA into eight distinct management
areas and specifies a management emphasis for each. There are also four
areas within the exterior boundaries of the SRNRA that were expressly
excluded from the provisions of the Act.
One of the eight management areas in the SRNRA is the Siskiyou
Wilderness, most of which was designated by Congress on September 26,
1984. The Gasquet-Orleans Corridor was added to the Siskiyou Wilderness
by the Act in 1990. The Act specifies that the Siskiyou Wilderness is
to continue to be managed pursuant to the provisions of the Wilderness
Act. In accordance with Section 4(d)(3) of the Wilderness Act, the
federal lands within the Siskiyou Wilderness (excluding the Gasquet-
Orleans Corridor addition) were withdrawn from the operation of the
mining and mineral leasing laws, subject to valid existing rights, as
of September 26, 1984.
The Act also redesignated the following rivers and some of their
tributaries as components of the National Wild and Scenic Rivers
System: (1) The Smith River; (2) the Middle Fork of the Smith River;
(3) the North Fork of the Smith River; (4) the Siskiyou Fork of the
Smith River; and (5) the South Fork of the Smith River. These same
rivers and most of the designated tributaries had previously been
designated components of the Wild and Scenic Rivers System on January
19, 1981, pursuant to Section 2(a)(ii) of the Wild and Scenic Rivers
Act. The Act designated as wild segments two tributaries which had not
previously been designated--Peridotite Creek, tributary to the North
Fork of the Smith River, and Harrington Creek, tributary to the South
Fork of the Smith River. The Act also changed the classification of
some tributaries designated in 1981, from recreational to scenic or
wild. For example, the lower 2.5 mile segment of Myrtle Creek,
tributary to the Middle Fork of the Smith River, was reclassified as
wild. In the Act, Congress directed that these designated wild and
scenic rivers and tributaries be managed in accordance with the Act and
the Wild and Scenic Rivers Act, whichever is more restrictive. In
accordance with Section 9(a)(iii) of the Wild and Scenic Rivers Act,
the federal lands within segments of designated rivers or tributaries
classified ``wild'' (except for Peridotite Creek, Harrington Creek, and
the lower 2.5 miles of Myrtle Creek that were reclassified in the Act)
were withdrawn from the operation of the mining and mineral leasing
laws, subject to valid existing rights on January 19, 1981.
Under this patchwork of wild and scenic rivers, wilderness, and
national recreation area designations there emerge three different
dates of withdrawal which apply to federal lands. First, there are the
federal lands within ``wild'' segments of wild and scenic rivers
(excluding those that were designated or reclassified as ``wild'' in
the Act) which were withdrawn subject to valid existing rights on
January 19, 1981, pursuant to Section 9(a)(iii) of the Wild and Scenic
Rivers Act. Second, there are the federal lands within the Siskiyou
Wilderness (excluding both the Gasquet-Orleans Corridor addition and
the aforementioned ``wild'' segments of wild and scenic rivers) which
were withdrawn subject to valid existing rights on September 26, 1984,
pursuant to Section 4(d)(3) of the Wilderness Act. Third, the remaining
federal lands that comprise the SRNRA (which includes, among others,
the ``scenic'' and ``recreational'' segments of wild and scenic rivers,
the ``wild'' segments of wild and scenic rivers as designated or
reclassified by the Act, and the Gasquet-Orleans Corridor addition to
the Siskiyou Wilderness) that were withdrawn subject to valid existing
rights on November 16, 1990, pursuant to Section 8(a) of the Act.
Mining and prospecting for minerals have been important parts of
the history of the Smith River area since the 1850's. Historically,
mining operations within the Smith River area have been small-scale
placer gold exploration and recovery operations within the bed and
banks of the Smith River and its main tributaries. Panning, sluicing,
and dredging operations occur predominantly during the summer months.
In recent years, large, low-grade, nickel-cobalt resources in the
uplands of the Smith River watershed have attracted the attention of
prospectors. Based on a review of Bureau of Land Management (BLM)
records, there were approximately 2,776 mining claims covering about
30,000 acres of National Forest System lands within the SRNRA upon the
date of enactment of the Act in 1990. By May 1997, however, BLM records
indicate that there were only approximately 297 mining claims covering
about 7,700 acres of National Forest System lands in the SRNRA that met
current filing requirements. None of the claims are for mill site
locations. There are no active operations on mining claims or on lands
with outstanding mineral rights.
[[Page 15043]]
In Section 8 of the Act, Congress addressed the extent to which
mineral operations would be authorized within the SRNRA. Section 8(a)
of the Act withdrew as of the effective date of the Act, all federal
lands in the SRNRA from the operation of the mining, mineral and
geothermal leasing laws subject to valid existing rights. Section 8(b)
precluded the issuance of patents for locations and claims made prior
to the establishment of the SRNRA. Section 8(c) of the Act prohibited
all mineral operations within the SRNRA except where valid existing
rights are established. Section 8(c) also prohibited the extraction of
mineral materials such as, common varieties of stone, sand, and gravel,
except if used in the construction and maintenance of roads and other
facilities within the SRNRA and the excluded areas. Finally, under
Section 8(d), the Secretary was authorized and directed to promulgate
supplementary regulations to promote and protect the purposes for which
the SRNRA was designated.
On November 8, 1994, the largest claimholder in the SRNRA filed
suit against the Department of Agriculture in United States District
Court for the Northern District of California alleging violations of
the Act. California Nickel Corp. v. Espy, No. C94-3904-DLJ (N.D. Cal.).
Specifically, the suit alleged that the Department violated the Act by
not promulgating regulations for mineral operations in the SRNRA as
required under Section 8(d). The Department did not dispute that
Section 8(d) of the Act required the promulgation of supplementary
regulations for the SRNRA. In fact, preliminary progress towards the
development of a regulation had been made prior to the initiation of
litigation.
On June 23, 1995, proposed supplementary regulations for mineral
activities in the SRNRA were published in the Federal Register for
notice and comment (60 FR 32633). Seven letters were received during
the 60-day comment period and were considered in the development of a
final rule which was published on April 3, 1996 (61 FR 14621). Upon
publication, the claimholder who had initiated litigation against the
agency amended its complaint to challenge the substance of the April 3,
1996, final rule. On March 14, 1997, the court invalidated three
provisions of the April 3, 1996, final rule. California Nickel Corp. v.
Glickman, No. C-94-3904-DLJ, slip op. (N.D. Cal. Mar. 14, 1997).
Specifically, the court held that a provision limiting the period of
approval of a plan of operations to 5 years was arbitrary and
capricious because the agency had failed to evaluate whether mining
under such a time constraint might result in a taking of private
property. The court also ruled that the agency had been arbitrary and
capricious by failing to explain why the supplementary regulations did
not include a timetable for processing and reviewing plans of
operations. Finally, the court ruled that mining operators had been
denied due process because the rule did not include a mechanism by
which Forest Service determinations that valid existing rights had not
been established could be reviewed within the Department of the
Interior.
On September 8, 1997, the Forest Service published a second
proposed rule for notice and comment which included provisions that
addressed the court's concerns (62 FR 47167). Specifically, the second
proposed rule provided that plans of operations would be approved for
the minimum time reasonably necessary for a prudent operator to
complete mining operations. The second proposed rule also stipulated
that plans of operations would be reviewed for completeness within 120
days of submission and that valid existing rights determinations would
be completed within 2 years except when the Forest Service could show
cause as to why additional time was necessary. Finally, the second
proposed rule included a provision requiring the Forest Service to
promptly request the Bureau of Land Management to initiate a contest
action whenever it concluded that an applicant had failed to establish
the presence of valid existing rights. Other modifications were made to
clarify and improve the regulations generally, but they were not
required as a result of the March 1997 court decision.
Four letters were submitted during the 60-day comment period that
ended on November 7, 1997. The comments contained in these four letters
were considered by the Forest Service in the development of this final
rule. Based on the comments, several changes were made in the text of
the final rule. Some of these changes were made to the provisions of
the second proposed rule which had been added to respond to the court's
concerns with the first final rule. For example, a new provision was
added to this final rule which expressly provides for an extension of
the approval period for a plan of operations. Additionally, the time to
review a plan of operations for completeness was shortened from 120 to
60 days. Finally, the procedure by which a Forest Service valid
existing rights determination is referred to the Bureau of Land
Management was refined and clarified. These and other changes and the
reasons for the changes are explained more fully in the following
paragraphs.
All comments received are available for review in the Office of the
Director, Minerals and Geology Management Staff, Auditors Building, 4th
Floor, 201 14th Street, SW., Washington, DC, during regular business
hours (8 a.m. to 5 p.m.) Monday through Friday. The Department
appreciates the time and energy the reviewers invested in preparing
these letters and in articulating their views regarding the proposed
rule.
Analysis of Public Comment
Comments on the proposed rule dealt with general issues, including
whether supplementary regulations are necessary, whether a taking of
private property had occurred, whether the agency exceeded its
authority to regulate mineral operations on National Forest System
lands, whether the new provisions in the second proposed rule were the
same or substantially similar to those in the first final rule that had
been struck down by the court, whether the supplementary regulations
were in furtherance of the Act, whether the supplementary regulations
were punitive, whether mineral collecting was a permissible
recreational activity in the SRNRA, whether the requirement for a plan
of operations should apply to suction dredge and sluice operations, and
whether delay by the Forest Service in promulgating the supplementary
regulations caused the abandonment of more than 4,500 mining claims. In
addition to the preceding general comments, several specific issues
concerning the enumerated provisions of the proposed rule were raised.
A summary of the comments and the Department's responses to them
follows.
General Comments
1. Supplementary mining regulations are unnecessary since the
Forest Service already has adequate authority to protect the SRNRA in
accordance with the Act. One reviewer stated that there is no need for
additional regulations pertaining to mineral operations in the SRNRA
since existing Forest Service regulations governing these activities at
36 CFR part 228 provide ample protection to the SRNRA and its
resources.
Response: The issue of whether additional regulation of mineral
operations in the SRNRA is necessary was conclusively determined by
Congress in Section 8(d) of the Act. This provision specifically states
that ``the Secretary (of Agriculture) is authorized and directed to
issue supplementary
[[Page 15044]]
regulations to promote and protect the purposes for which the (SRNRA)
is designated.'' It is not within the discretion of the Department to
evaluate whether such regulations are necessary. The Act obligates the
Department to issue them, therefore, no change to the rule has been
made based on the comment.
2. The new regulations should not differ from the Forest Service's
current mining regulations at 36 CFR part 228 unless ``some unique
aspect of the SRNRA'' justifies a change. One reviewer felt that the
supplementary regulations for mineral operations in the SRNRA should be
identical to the current mining regulations at 36 CFR part 228 unless
``a reasonable and rational justification * * * based upon some unique
aspect of the SRNRA'' can be identified to justify the change.
Response: The Department disagrees with this comment for the
following reasons. First, there is no indication in the Act or its
legislative history that the supplementary mining regulations must
mirror the current mining regulations at 36 CFR part 228 unless a
unique attribute of the SRNRA might warrant a change. The Act vested
the Department with considerably more discretion to determine the
appropriate form and content of the supplementary regulations. It is
worth noting, however, that the supplementary regulations build upon,
and are integrated with, the Forest Service's current mining
regulations at 36 CFR part 228.
Secondly, even assuming that this reviewer was correct, the Act and
its legislative history contain numerous references to the unique
attributes of the SRNRA which justify different and more stringent
regulation of mineral development activities than elsewhere on National
Forest System lands. Section 2 of the Act recognizes the ``invaluable
legacy'' represented by the undammed and free-flowing Smith River; the
unusual ``richness of ecological diversity,'' ``renowned anadromous
fisheries,'' ``exceptional water quality,'' and ``abundant wildlife''
in the Smith River watershed; and the ``exceptional opportunities'' for
wilderness, water sports, fishing, hunting, camping, and sightseeing.
Similar language is contained in the House committee report and floor
debate pertaining to the establishment of the SRNRA. See, H.Rep. No.
707, 101st Cong., 2d Sess. 11-12 (1990); 136 Cong. Rec. 24720 (Sept.
17, 1990). Thus, there appear to be several ``unique aspects'' in the
SRNRA which justify departing from the general Forest Service mining
regulations at 36 CFR part 228. Based on the foregoing discussion, no
change was made to the rule.
3. The second proposed rule utilizes many of the provisions from
the first final rule that were invalidated by the court. One reviewer
criticized the second proposed rule for containing provisions that
varied only slightly from those in the first final rule that were
invalidated by the court.
Response: The Department disagrees with this reviewer's
characterization.
On March 14, 1997, the court invalidated three provisions of the
first final supplementary regulations for the SRNRA that had been
published on April 3, 1996. California Nickel Corp. v. Glickman, No. C-
94-3904-DLJ, slip op. (N.D. Cal. Mar. 14, 1997). The court first ruled
that a provision limiting the approval period of a plan of operations
for mining in the SRNRA to 5 years was arbitrary and capricious because
the agency had failed to consider all the relevant factors in adopting
this provision. Specifically the court concluded that there was no
indication in the record that the agency had considered whether a 5-
year limit might result in a taking of private property. Id. at 9-11.
The court next ruled that a provision exempting plans of operations in
the SRNRA from the generally applicable timetables for review set forth
in the mining regulations at 36 CFR part 228, subpart A, was arbitrary
and capricious because the agency failed to explain or justify its
position. Id. at 11-13. Finally, the court held that the rule denied a
mining operator due process because it did not provide a mechanism by
which the Bureau of Land Management could review determinations by the
Forest Service that valid existing rights had not been established by
the operator. Id. at 13-17.
The Forest Service took the court's concerns seriously. Bearing in
mind its overall responsibility to administer the SRNRA in conformance
with the Act, the Forest Service published a second proposed rule on
September 8, 1997, which specifically responded to the deficiencies
that had been identified by the court (62 FR 47167).
With respect to the approval period for a plan of operations, the
new proposed rule provided for approval for the ``minimum amount of
time reasonably necessary for a prudent operator to complete the
mineral development activities covered by the approved plan of
operations.''
This provision ensures the protection of the SRNRA while providing
mineral operators the necessary flexibility to conduct their
activities. The Department believes this approach should allay concerns
about the potential deprivation of property arising from an abbreviated
approval period which might preclude the completion of mining
operations. At the same time, this provision should ensure that mining
operations will be conducted in an expeditious manner and will not be
protracted over time to the detriment of the land and resources of the
SRNRA.
With respect to timetables for reviewing plans of operations in the
SRNRA, the second proposed rule provided that the Forest Service will
notify the operator within 120 days whether all the necessary
information to evaluate a plan of operations has been submitted. In
addition, the second proposed rule provided that once the necessary
information has been submitted, the determination of whether the
operator has established valid existing rights will be completed within
2 years unless the agency can show good cause in writing as to why more
time will be necessary. The preamble of the second proposed rule went
into considerable detail to explain why this timetable, rather than the
timetable set forth at 36 CFR part 228, subpart A, was more appropriate
for reviewing plans of operation in the SRNRA.
Finally, with respect to appeals of valid existing rights
determinations adverse to a mining operator, the second proposed rule
provided that the Forest Service would notify the Bureau of Land
Management promptly of adverse determinations and request the
initiation of a mineral contest action against the pertinent mining
claims.
The Department believes that the changes in the second proposed
rule are significant and address the concerns identified by the court
in its March 14, 1997, ruling. The Department also believes that the
second proposed rule was faithful to, and consistent with, the legal
obligations assumed by the Forest Service pursuant to the Act. It
should be noted that each of the provisions added to the second
proposed rule based on the March 14, 1997, court decision was further
modified in response to comments that were received on the second
proposed rule. Therefore, no changes were made to the rule based on
this comment.
4. The regulations are unlawful because they exceed the Forest
Service's authority to administer minerals on National Forest System
lands and do not promote and protect the purposes for which the SRNRA
was established. Two reviewers stated that the second proposed rule
unlawfully augmented the Forest Service's authority to regulate
minerals in the SRNRA. One of these reviewers added that by effectively
eliminating recreational mining from
[[Page 15045]]
the SRNRA, the proposed rule was flawed because it did not ``promote
and protect'' one of the purposes for which the SRNRA was established.
Response: The Department disagrees with this comment. This rule
does not increase the authority of the Forest Service to regulate
minerals in the SRNRA. Rather, it sets forth a system for determining
whether a claimholder possesses valid existing rights and, where such
rights exist, the terms and conditions under which National Forest
System lands may be used to conduct mineral development activities.
This system is entirely consistent with the authority delegated by
Congress in Section 8(d) of the Act which, the Department believes,
reflects an eminently reasonable compromise between an outright
prohibition of all mining in the SRNRA (which might have led to
potential takings liability) and permitting mining to continue without
additional regulation (which might have adversely impacted the values
for which the SRNRA was established).
The Department also rejects the assertion that mining was
considered one of the ``recreational'' activities for which the SRNRA
was established and which the Forest Service must ``promote and
protect'' through its administration. Section 2 of the Act specifically
identifies ``wilderness, water sports, fishing, hunting, camping, and
sightseeing'' as recreational activities occurring in the SRNRA.
Although this recitation is not necessarily exclusive, mining is
clearly not the type of activity that fits comfortably within this
class of recreation pursuits. No changes to the rule were made based on
the comments of these two reviewers.
5. The supplementary regulations target a single class of users and
is punitive. One reviewer contended that the second proposed rule was
punitive and directed at a single class of users of the SRNRA, namely
miners. This reviewer further noted that in other congressionally
designated national recreation areas, supplementary regulations
addressed activities other than just mining and affected parties other
than just miners.
Response: The Department agrees that the supplementary regulations
apply only to those wishing to conduct mineral operations in the SRNRA,
but disagrees that they are punitive. The narrow focus of the
regulations is based on the statutory authority in Section 8 of the Act
which pertains explicitly and exclusively to mining. The legislative
history of the Act reinforces the view that Congressional intent in
adding this provision was to avoid or minimize mining practices that
might negatively impact the resource values for which the SRNRA was
established.
With regard to mining, the amendments would give explicit
recognition to the rights associated with valid existing claims, and
direct the Secretary to issue supplementary regulations designed to
``promote and protect'' the purposes for which the recreation area
is created. Although I remain concerned about the potential for
destructive mining, I am hopeful that the supplemental regulations
will address those concerns.
136 Cong. Rec. H13045, 13046 (Oct. 26, 1990) (Statement of Rep. Bosco).
The Department disagrees with the reviewer's suggestion that the
scope of these regulations should be expanded based on similarly
expansive supplementary regulations in other congressionally designated
national recreation areas. The statutes which established these other
areas specifically address the types of issues to be covered by the
regulations. See, e.g., the Sawtooth National Recreation Area Act, 16
U.S.C. 460aa-3, -10; the Hells Canyon National Recreation Area Act, 16
U.S.C. 460gg-7(a-e).
Since limiting the scope of this rule to mineral operations in the
SRNRA is fully consistent with the Act and its associated legislative
history, the Department declines to expand the scope of the final rule
to address other uses and activities occurring within the SRNRA.
Therefore, no changes to the rule were made based on this comment.
6. The rule was drafted to eliminate mining from the SRNRA and, in
so doing, it does not provide for the wise use and sustained
productivity of its resources. One reviewer asserted that the second
proposed rule would result in the elimination of mining from the SRNRA
and, thus, would not provide for the wise use and sustained
productivity of resources as required by the Act.
Response: The Department disagrees with this comment. The Act, not
this rule, prohibits mining in the SRNRA, except where valid existing
rights can be established. This rule merely prescribes the procedure to
be used by the Forest Service to determine whether valid existing
rights are present and, if so, the appropriate terms and conditions
under which the mining operations should be conducted in order to
ensure that the values for which the SRNRA was established are
protected in perpetuity. No change was made to this rule based on this
comment.
7. Forest Service's strategy of delay and burden has already
resulted in abandonment of 4,500 claims in the SRNRA. One reviewer
accused the Department, through its delay in the promulgation of this
rule, of being responsible for the abandonment of more than 4,500
mining claims in the SRNRA.
Response: The Department disagrees with this reviewer's contention.
According to records maintained by the Bureau of Land Management, there
were approximately 2,776 claims listed as ``open'' when the SRNRA was
established in 1990. Assessment work for over one-half of those claims
had not been recorded with BLM for the 1989-1990 assessment year. In
some cases, assessment work had not been recorded for several years
prior to the establishment of the SRNRA. As a result, in 1991, BLM
issued ``abandoned and void'' decisions on 1,329 claims in the SRNRA.
None of these abandonment decisions resulted from any actions, or lack
thereof, as the case may be, by the Department. This meant that
approximately 1,447 mining claims were still listed on National Forest
System lands within the SRNRA in 1991.
Beginning with the 1993-1994 assessment year, the Bureau of Land
Management instituted a new nationwide fee system requiring holders of
more than ten claims to pay a $100 per claim fee while allowing holders
of ten or fewer claims to obtain an exemption from the fee requirement.
Of the approximately 1,447 mining claims in the SRNRA in 1991, fees
were paid or exemptions obtained on only 320 claims. As a result, the
Bureau of Land Management issued ``abandoned and void'' decisions on an
additional 1,127 claims in the SRNRA. Once again, the abandonment of
these claims was unrelated to Forest Service administration of the
SRNRA.
Since then, the holders of an additional 23 claims have failed to
pay the required fees or obtain an exemption to the fees. These claims
also have been declared abandoned and void by BLM. Thus, there are only
297 open claims in the SRNRA at this time. No change to the rule was
required based on this comment.
8. Limiting ``recreational mining'' is inconsistent with the SRNRA.
Two reviewers stated that the purposes for which the SRNRA was
designated include recreational mining and prospecting activity and
that any attempt to limit recreational mining is at odds with
congressional intent.
Response: Executive agencies of the Government cannot permit
activities involving the search for, and removal of, minerals on
federal lands, including National Forest System lands, except to the
extent that Congress has enacted legislation authorizing those
activities.
[[Page 15046]]
This limitation results from Section 3 of Article 4 of the United
States Constitution which provides in pertinent part that: ``Congress
shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the
United States * * * .'' Accordingly, as the United States Supreme Court
has observed, the United States owns the minerals found on its lands
``and it lies in the discretion of Congress, acting in the public
interest, to determine how much of the property it shall dispose.''
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 336 (1936).
In 1872, Congress enacted general mining laws providing for the
disposal of locatable minerals on federal lands now included in the
SRNRA. 30 U.S.C. 22 et seq. However, in 1990, when Congress enacted the
Act, it expressly withdrew the SRNRA from the operation of the mining
laws, subject to valid existing rights. 16 U.S.C. 460bbb-6(a). As noted
in the Supplementary Information section, some of the federal land
within the SRNRA had been withdrawn from the operation of the mining
laws prior to the enactment of the Act in 1990. Congress concluded that
mining in the SRNRA was inconsistent with the purposes for which the
SRNRA was established or else it would not have withdrawn these lands
from the operation of the United States mining laws. To construe the
Act as authorizing mining of locatable minerals, whether that mining is
characterized as being for ``recreational'' or ``commercial'' purposes,
absent the existence of valid existing rights, would frustrate
Congressional intent to block that very activity.
In summary, the only mineral activities that may occur in the SRNRA
are those for which valid existing rights have been established, those
authorized by a mineral materials contract or permit, or those
associated with outstanding mineral rights. The Department has no
authority to allow locatable mineral activities on lands in the SRNRA,
whether the activity is characterized as a recreational pursuit or a
commercial venture, unless the Government determines that valid
existing rights have been established. This prohibition applies even if
an individual wishes to mine for personal enjoyment rather than
financial gain and even if the impact on the lands and resources of the
SRNRA is minimal. Therefore, no change has been made in the rule as a
result of these comments.
9. Plan of operations should not be required for suction dredge and
sluice operations. Two reviewers contended that the rule should not
require plans of operations for suction dredge and sluice operations.
Response: Locatable mineral operations on National Forest System
lands are primarily governed by the current locatable mineral
regulations at 36 CFR part 228, subpart A. In the past, suction
dredging operations in the SRNRA have been authorized by plans of
operations, notices of intent, and, occasionally, without any written
authorization at all. However, as noted previously, in establishing the
SRNRA, Congress specified that subject to valid existing rights, all
locatable mineral operations on federal land are prohibited.
Furthermore, even in those instances where an operator establishes
valid existing rights to conduct dredging operations, those operations
would still be subject to regulation to ensure that the values for
which the SRNRA was established were protected and enhanced.
By requiring a plan of operations for suction dredging activities,
the Department can accomplish two objectives. First, it can verify that
the operator possesses valid existing rights to conduct suction
dredging operations. Second, it can ensure that the impacts of the
suction dredging operations are minimized to the extent practicable in
order to protect and preserve the values for which the SRNRA was
established. The Department believes that in order to protect the
unique fishery and other resource values of the SRNRA, careful and
considered evaluation of all suction dredging activities is necessary.
The best mechanism for this to occur is through the process of
developing and reviewing a plan of operations. Therefore, no changes
were made in the final rule to exempt suction dredging activities from
the plan of operations requirements.
10. Review periods of one to two years for proposals to conduct
suction dredge operations is onerous and doesn't promote ``recreational
mining''. One reviewer asserted that suction dredge operations and
sluicing have negligible impact on surface resources and should not be
required to be approved under a plan of operations with a possible
processing timeframe of 1 to 2 years.
Response: As an initial matter, it should be noted that the
Department does not agree that all suction dredging and small scale
sluicing operations have negligible environmental impacts. Furthermore,
the impacts of these activities must be evaluated individually and
cumulatively. It may well be that the effect of an individual operation
is minimal, but the cumulative effect of several such operations may be
significant.
With respect to the time it takes to review a plan of operations,
the rule sets out 2 years as the maximum amount of time (except for
good cause shown) to evaluate whether valid existing rights are
present. Under certain circumstances, it may not take the full 2 years
to complete this evaluation.
The issue concerning whether the Department has the authority to
permit ``recreational mineral activities'' absent valid existing rights
has been addressed previously. Based on the foregoing, no change was
made in the final rule in response to this comment.
11. Characterization of nickel-cobalt resources as ``low grade''.
One reviewer objected to the characterization of the nickel-cobalt
resources in the uplands of the Smith River watershed as ``low-grade''
to the extent that this characterization suggests that the resources
are either insignificant or unworthy of development and requested that
the characterization ``low-grade'' be deleted from the preamble.
Response: ``Low grade'' is a phrase commonly used within the mining
industry to describe situations where the anticipated percentage of
elements in a given area is less than the percentage of the same
elements currently being mined elsewhere. This is an apt description of
the nickel-cobalt resources in the SRNRA. In fact, the holder of most
of the claims in the SRNRA where the nickel-cobalt resources are
located has previously acknowledged that the grade of the nickel-cobalt
resources in the SRNRA is less than the grade of nickel-cobalt
resources being mined in other parts of the world. No change was made
to the rule as a result of this comment.
12. The proposed rule underestimates the amount of time required
for an operator to gather and submit information required as part of a
plan of operations. One reviewer commented that the proposed rule's
estimate of 2 hours as the time required for an operator to gather and
submit information required by the Forest Service as part of a plan of
operations was too low.
Response: The Department has reassessed its original estimate.
Initially, it was thought that an operator could gather the data and
complete a plan of operations in 2 hours. The Department continues to
believe that the vast majority of the data and information required for
a plan of operations should be in the possession of the operator or is
readily obtainable and should take only a couple of hours to compile
and submit. However, in response to the
[[Page 15047]]
comments received on this issue, the estimated time to gather the
requested information and prepare a plan of operations has been
increased from 2 to 20 hours. The final information package submitted
to the Office of Management and Budget estimates that it will take an
average of 20 hours to gather and submit the information required for
review and that, on average, two parties will submit plans of operation
to the Forest Service each year for review. This results in an
estimated total annual burden of 40 hours. Based on the comment
regarding the time it takes to gather and submit information for a plan
of operations, a change was made in the ``Controlling Paperwork Burdens
on the Public'' section of the preamble for the second final rule.
13. The proposed rule effects a taking of property without just
compensation in violation of the Fifth Amendment of the Constitution.
One reviewer suggested that the mere publication of a proposed rule for
notice and comment violated the Fifth Amendment by taking property
without just compensation.
Response: The Department disagrees with the comment. The Fifth
Amendment states in part ``* * * nor shall private property be taken
for public use without just compensation.'' The act of publishing a
proposed rule for notice and comment does not deprive anyone of a
property interest protected by the Fifth Amendment. Indeed, a proposed
rule is not even enforceable. It is only after a final rule is
published in accordance with the provisions of the Administrative
Procedures Act that a regulation becomes enforceable. Thus, the
publication of a proposed rule cannot constitute a taking. Therefore,
no change to the preamble was made based upon this comment by a
reviewer.
14. Compliance with Executive Order 12630. Several reviewers took
issue with the means by which the agency satisfied the obligations of
Executive Order 12630 which requires agency officials to evaluate the
potential takings implications of their actions. These reviewers
asserted that evaluating the agency action of publishing a proposed
rule for potential takings liability was ``disingenuous,'' ``false
reasoning,'' and ``make(s) a mockery'' of the Executive Order. Two of
the reviewers suggested that the takings implication of the final rule
should be evaluated as well.
Response: The Department disagrees with the reviewers. Executive
Order 12630 was issued in 1988 to facilitate internal analysis of the
potential takings implications of proposed agency actions. The
objective of the Executive Order is to ensure that agency officials are
notified in advance of the potential takings implications associated
with proposed actions. Such advance notice should minimize inadvertent
takings and may lead to modifications of the proposed action, although
there is nothing in the Executive Order which requires an agency to
modify proposed actions to avoid a potential taking. Executive Order
12630 specifically provides that it is ``intended only to improve the
internal management of the Executive branch and is not intended to
create any right or benefit, substantive or procedural, enforceable at
law by a party against the United States, its agencies, its officers,
or any person.''
The only agency action at issue in this instance was the
publication of a proposed rule. As indicated previously, a proposed
rule is not enforceable as law and, therefore, cannot affect private
property. Furthermore, it would have been inappropriate to evaluate the
underlying provisions of the proposed rule for takings implications
since those provisions might be subsequently modified in the final
rule.
A takings implication assessment has been prepared on this second
final rule. It concludes that the action of publishing a final rule
does not present the risk of a taking. It does, however, acknowledge
that the regulation, as applied in a specific case, may present the
risk of a taking. Since takings claims are highly fact specific, it is
not prudent to engage in further conjecture at this time regarding
whether private property might be taken as a result of the ``as
applied'' affect of the rule on private property. Among the factors
that would be considered if such a claim arose are the character of the
government action, the economic impact of the government action on the
property, and the reasonable investment backed expectations of the
property owner. For obvious reasons, it is impossible to make judgments
regarding these factors at this point. However, additional takings
implication assessments will be prepared in accordance with Executive
Order 12630 to evaluate potential takings risks associated with agency
implementation of these supplementary regulations. No change was made
to the final rule based on this comment. However, a takings implication
assessment was prepared on the final rule.
Specific Comments on Proposed Subpart G
The following discussion addresses comments on specific sections of
the proposed rule and, where applicable, identifies modifications in
the final rule made as a result of the comments.
No comments were received on Sec. 292.61--Definitions,
Sec. 292.66--Operating Plan Requirements, Sec. 292.67--Operating Plan
Approval, and Sec. 292.68--Mineral Material Operations. Consequently,
the final rule adopts the text of these sections as originally
proposed, and no further discussion is included in this analysis.
In addition, in Sec. 292.60, one typographical error has been
corrected and paragraph (e) has been deleted. The decision to eliminate
paragraph (e) which dealt with the effect of the supplementary mining
regulations on ongoing mineral operations was made because there are no
ongoing operations in the SRNRA at this time nor are any plans of
operations currently being considered. Thus, it was determined that the
deletion of paragraph (e) would simplify the supplementary regulations
by eliminating a provision that discusses a contingency which does not
exist. Beyond that, no additional changes were made to Sec. 292.60 and
it is not discussed further in this analysis.
Finally, citations in this final rule to these regulations or to
other regulations applicable to the administration of National Forest
System lands have been modified to conform with the format established
by the Office of the Federal Register. These changes do not affect the
rights and obligations of the Federal Government or any affected
interests.
Section 292.62, Valid Existing Rights
Paragraph (a) of this section sets forth three definitions of
``valid existing rights'' that will be used to evaluate mining claims
in the SRNRA. The only difference in the three definitions is the date
by which the location and discovery of the valuable mineral deposit
must have occurred. The definition that applies to a given mining claim
will depend on whether the claim lies on federal lands within the
corridor of a wild segment of a wild and scenic river designated in
1981, within that portion of the Siskiyou Wilderness designated in
1984, or within the remainder of the SRNRA. Paragraph (b) of this
section provided that limited mining operations may be authorized in
order to enable an operator to confirm that discovery of a valuable
mineral deposit occurred prior to the applicable date of withdrawal.
This paragraph provided that the operations would be ``limited in scope
and duration'' but did not provide independent authority to prospect,
explore, or make a new discovery.
Comment: The Forest Service is without authority to alter the
United States mining laws in defining valid existing rights. One
reviewer agreed
[[Page 15048]]
with the definition of valid existing rights in paragraph (a)(3) if it
merely requires the claimant to have a valid mining claim as of the
date of enactment of the Act, the claim has not been subsequently
abandoned, and the appropriate fees and filings have been made. The
reviewer objected to any additional requirements of the definition in
paragraph (a)(3) which would allegedly alter the United States mining
laws. In particular, the reviewer urged that paragraph (a)(3)(iv) be
confined to the technical aspects of retaining a valid unpatented
mining claim. The reviewer further stated that paragraph (a)(3)(iv)
should not be construed to allow the Forest Service to evaluate the
continued validity of a mining claim even though the reviewer
acknowledged that the Bureau of Land Management possessed that
authority.
Response: Initially, it should be noted that the United States
mining laws do not contain a definition of ``valid existing rights.''
To the extent that a definition of ``valid existing rights'' exists, it
is largely the product of judicial and administrative interpretations
of the United States mining laws. The definition of ``valid existing
rights'' in Sec. 292.62(a) is fully consistent with the United States
mining laws, relevant case law, and administrative interpretations.
These authorities have long held that for a mining claim to be valid it
must be properly located, supported by the discovery of a valuable
deposit of a locatable mineral, located and held in good faith, and
properly maintained in compliance with certain filing requirements and
annual labor or fee requirements. For a mining claim located in a
withdrawn area to constitute a valid existing right, the claim must
have been valid prior to the effective date of the withdrawal of the
area, continue to be held in good faith, continue to be maintained in
compliance with filing and annual labor or fee requirements, and
continue to be supported by the discovery of a valuable mineral
deposit. The last element means that the mineral deposit must continue
to remain valuable. In that regard, it is well established that the
exhaustion of a mineral deposit or loss of its marketability will lead
to a finding that the mining claimant no longer possesses valid
existing rights.
To the extent that the reviewer is suggesting that the Forest
Service may not examine issues relevant to the question of whether a
mining claim constitutes a valid existing right, except in connection
with a mineral contest initiated by the Bureau of Land Management, the
position of this Department as well as the Department of the Interior
is to the contrary.
We recognize that a final determination that a claim is invalid
for lack of discovery can be made only after a contest proceeding.
We also recognize, however, that the mere location of a claim does
not presumptively make it valid and that an agency operating under a
mandate to minimize surface disturbance may properly require the
mining claimant to affirmatively establish the existence of a valid
existing right * * * before allowing operations to proceed.
Richard C. Swainbank, 141 IBLA 37, 44 (1997)(citation omitted). While
Swainbank involved the National Park Service, its holding applies to
the Forest Service, which, like the National Park Service, also
operates under a mandate to minimize surface disturbance resulting from
locatable mineral operations.
Since the Act withdrew the lands in the SRNRA from the operation of
the United States mining laws subject to valid existing rights, it is
not within the Department's discretion to authorize operations within
the SRNRA unless the claimant can demonstrate that the mining claim
satisfies all of the requirements in Sec. 292.62(a) and, therefore,
constitutes a valid existing right. No change has been made in the
final rule in response to this comment.
Comment: The Forest Service must approve operations for the purpose
of confirming a discovery of a valuable locatable mineral deposit. Two
reviewers objected to Sec. 292.62(b) because they contend it unlawfully
gives the Forest Service broad discretion to refuse to permit
operations necessary to confirm the discovery of a valuable mineral
deposit consistent with the definition of valid existing rights in
Sec. 292.62(a). One of the reviewers who contended that the Forest
Service must approve such operations, nonetheless, criticized the
Forest Service for including this provision in the proposed rule,
arguing that it simply provides another opportunity to delay a mining
claimant's exercise of the rights accorded by the United States mining
laws.
One of the reviewers also objected to the use of the term
``limited'' when describing operations to gather information to confirm
the existence of a discovery of a valuable mineral deposit that
predated the withdrawal of the SRNRA from the operation of the mining
laws. The same reviewer also objected to the provision in
Sec. 292.62(b) which stated that the information gathering operations
would be ``limited in scope and duration.''
The second reviewer proposed that the Sec. 292.62(b) be revised to
specifically authorize mineral operations necessary to demonstrate the
quantity and quality of the mineralization.
Response: Section 292.62(b) was added to the second proposed rule
to address situations that might arise in the SRNRA when a mining
claimant must gather information to confirm that the discovery of a
valuable mineral deposit occurred prior to the withdrawal of the SRNRA
from the operation of the mining laws. In response to the comments
received, this paragraph has been reworded to clarify that an
authorized officer must approve a proposed plan of operations submitted
by a mining claimant to conduct mineral operations which may be
necessary to gather information to confirm the discovery of a valuable
mineral deposit consistent with the rule's definition of ``valid
existing rights.'' The claimant must, however, provide sufficient
information to demonstrate that the exposure of valuable minerals on
the claim predated the withdrawal of the land.
Section 292.62(b) codifies administrative interpretations of the
United States mining laws which hold that, under certain circumstances,
a mining claimant is entitled to an opportunity to collect further
information to assist in the determination of whether the mining claim
constitutes a valid existing right. The Department does not understand
how a procedure that a mining claimant has voluntarily elected can
constitute an impediment to an exercise of any rights which the
claimant may possess. The procedure provides a mechanism for a claimant
to bolster his claim of valid existing rights and presumably this
procedure would not be elected by a claimant who is confident that he
already possesses such rights. Accordingly, the Department sees no
reason to modify Sec. 292.62(b) based on this comment.
The Department agrees that there was no need to refer to operations
conducted pursuant to Sec. 292.62(b) as ``limited.'' Similarly, the
Department agrees that there is no need to limit the scope and duration
of operations carried out under Sec. 292.62(b). Therefore, these words
have been omitted from the final rule. However, these changes do not
modify the Forest Service's authorities or a mining claimant's rights.
The administrative interpretations of the United States mining laws on
which Sec. 292.62(b) is based, recognize that the mineral operations,
which a mining claimant has the right to conduct on a claim located on
withdrawn lands prior to a determination that the claim constitutes a
valid existing right, are
[[Page 15049]]
inherently limited and those limitations are reflected in the other
provisions of Sec. 292.62(b). See, e.g., United States v. Conner, 139
IBLA 361, 372 (1997); United States v. Crowley, 124 IBLA 374, 378-379
(1992); United States v. Mavros, 122 IBLA 297, 310-311 (1992).
The Department does not agree that Sec. 292.62(b) should be revised
to require the authorized officer to approve mineral operations needed
to demonstrate the quantity and quality of mineralization on a mining
claim in the SRNRA. Mineral operations on withdrawn lands may not be
permitted for the purpose of exposing new veins or lodes or performing
work which would otherwise result in the discovery of a valuable
mineral deposit. United States v. Parker, 82 IBLA 344, 384 (1984);
United States v. Chappell, 42 IBLA 74, 81 (1979). Thus, the Government
lacks authority to permit mineral operations pursuant to Sec. 292.62(b)
for the purpose of demonstrating the quantity and quality of
mineralization on a mining claim unless those operations constitute an
effort to confirm or corroborate the preexisting exposure of a valuable
mineral deposit discovered prior to the withdrawal of the lands. United
States v. Chappell, 42 IBLA 74, 81 (1979).
Based on the reviewers' comments, Sec. 292.62(b) has been revised
to clarify these points.
Section 292.63, Plan of Operations--Supplementary Requirements.
Paragraph (a) of this section specified that a plan of operations
is required for all mineral development activities within the SRNRA
where a plan would be required under 36 CFR part 228, subpart A, or
when mechanical or motorized equipment would be used. Operations
covered by this requirement would include, but not be limited to, those
using suction dredges or sluices. Paragraph (b) specifically identified
the information required in a plan of operations to evaluate an
assertion of valid existing rights. Paragraph (c) identified the
information required by the Forest Service to evaluate the operational
details and impacts of the proposed mineral development activity as
well as to determine the appropriate standards to mitigate and reclaim
the affected areas.
Comment: A title report prepared by a private certified mineral
title examiner should be sufficient to establish chain of title and
valid existing rights. Two reviewers suggested that an operator should
have an alternative way to satisfy the ``paperwork chain-of-title
step'' by providing the Forest Service a report from a certified
mineral title examiner or title company which shows an unbroken chain-
of-title and valid existing rights.
Response: Proposed Sec. 292.63(b) merely identified the specific
information that must be furnished to the Forest Service by the
operator in support of the operator's contention that the mining claim
constitutes a valid existing right. The operator is free to use anyone,
including private certified mineral title examiners or title companies,
to collect and assemble the specified information in whatever manner
the operator deems appropriate. Thus, no change is required in the rule
to enable the operator to use private mineral title examiners or title
companies to collect and submit the required information.
The respondents also might be suggesting that the Department should
not question the opinion of a private certified mineral title examiner
or title company on the issue of whether a mining claim constitutes a
valid existing right. The Department does not agree with this
suggestion. The Government has a duty to insure that valid mining
claims are recognized, invalid mining claims are eliminated, and the
rights of the public are preserved. Cameron v. United States, 252 U.S.
450, 460 (1920). This duty is significant because, as the Supreme Court
also recognized in that case, unlawful mining claims result in private
appropriations of land which rightfully belong to the public. The
Department believes that it would be inappropriate to entrust a party
retained and paid for by the proponent of an allegedly valid claim to
discharge the government's duty to determine that very question.
For the same reasons, the information that is submitted to the
Forest Service pursuant to Sec. 292.63(b) cannot simply be a statement
by a certified mineral title examiner or a title company that there is
a continuous chain-of-title and that the mining claim constitutes a
valid existing right. The submission made pursuant to Sec. 292.63(b)
must include the listed items and the information must be provided with
specificity so that the government can fulfill its obligation to
determine whether the operator has the right to conduct mineral
operations in the SRNRA. Therefore, no change has been made to the
final rule as a result of these comments.
Comment: Evidence of past or present sales of minerals cannot be
required to establish valid existing rights. Three respondents objected
to what they perceived to be a mandatory requirement that an operator
submit evidence of past and present sales of a valuable mineral as part
of a plan of operations. One respondent noted that there is no
requirement in the United States mining laws that a claimant must have
actually marketed the minerals discovered in order to establish the
validity of the mining claim. The other two reviewers contended that
the requirement is not supported by case law or legal precedent. One
respondent observed that minerals may not have been produced or sold
from mining claims which constitute valid existing rights, particularly
with respect to lode mining claims in the developmental stage. That
respondent also noted that many mining claims have been patented before
any production occurred.
Response: The Department agrees that the United States mining laws
do not require that a mining claimant must have marketed minerals in
order to establish the validity of a mining claim. It is possible for
an operator to prove that a mining claim constitutes a valid existing
right without having produced minerals from the claim or having sold
any minerals that have been produced. The Department also agrees that
mining claims have been patented before mineral production has
occurred. In proposing Sec. 292.63(b)(9), the Department did not intend
to suggest that an operator could not make an adequate showing of valid
existing rights absent mineral production or absent past or present
sales of minerals from the claim, or to preclude the operator from
making that showing.
Nonetheless, evidence of mineral sales is relevant to the
operator's assertion that valid existing rights have been established.
Sales information represents confirmable documentation that mineral
production has occurred on a mining claim. Evidence of mineral
production is important because Department of the Interior rules
recognize that ``(u)ncontradicted evidence of the absence of production
over an extended period of time may, in and of itself, establish a
prima facie case of invalidity.'' United States v. Miller, 138 IBLA
246, 277 n.18 (1997) (citation omitted). The Department of the Interior
has explained that ``(t)his rule reflects the principle that, given the
varying economic conditions present over a period of many years, a
mining claim will usually be developed unless it is not commercially
feasible to do so profitably. In other words, the best evidence of what
a prudent man would do is what a prudent man has done.'' United States
v. Knoblock, 131 IBLA 48, 88 (1994) (citation omitted).
For these reasons, no change has been made in Sec. 292.63(b)(9) of
the final rule except to insert the word ``existing'' at the beginning
of the paragraph. This
[[Page 15050]]
change makes it clear that an operator is not required to submit
evidence of sales which have not occurred or to submit evidence which
no longer exists. To the extent that sales evidence exists, it is
directly relevant to the determination of valid existing rights and
must be provided.
Comment: The reference in the preamble to Sec. 292.63(c)(3)
regarding concurrent reclamation was erroneous. One reviewer observed
that the preamble referred to a provision of the proposed rule
regarding concurrent reclamation at Sec. 292.63(c)(3) but that no such
provision existed in the text of the proposed rule.
Response: The reviewer is correct and a change was made in the
final rule. The provision concerning concurrent reclamation is set
forth at Sec. 292.69. The Department apologizes for any confusion the
incorrect citation may have caused.
Section 292.64, Plan of Operations--Approval
Section 292.64 of the proposed rule sets forth the procedure that
would be followed to review and approve a plan of operations submitted
in conformance with Sec. 292.63. Paragraph (a) stated that within 120
days of submission, the Forest Service would notify the applicant
whether all the necessary information had been included or whether
additional documentation was necessary. In addition, where all the
necessary information had been included, this paragraph further
explained that except for good cause shown, the Forest Service would
determine whether the applicant possessed valid existing rights within
2 years. Paragraph (b) provided that if an applicant failed to
demonstrate to the satisfaction of the Forest Service that valid
existing rights had been established, it would notify the applicant in
writing of its finding and that it would request the Bureau of Land
Management to initiate a mineral contest action. Paragraph (c) stated
that an assessment by the Forest Service that an applicant does not
possess valid existing rights was a final agency action that was not
subject to further administrative appeal within the Department.
Paragraph (d) explained that when valid existing rights are present,
the Forest Service would proceed to review the rest of the plan of
operations which consists largely of the operational details of the
mineral development activities being proposed. Paragraph (e) required
the Forest Service to notify the applicant whether the plan has been
approved or rejected, and paragraph (f) required the Forest Service to
explain in writing the reason(s) for not approving a plan. For plans
that are approved, paragraph (g) required the Forest Service to
establish an approval period which would be equal to the minimum amount
of time it would reasonably take a prudent operator to complete the
mineral development activities set forth in the plan. Paragraph (h)
identified the circumstances that would justify a modification to an
approved plan of operations. Finally, paragraph (i) required an
operator to develop a new plan of operations or amend a previously
approved plan of operations, if the mining operations differed in type,
scope, or duration from those described in the original plan, and if
those differences would result in resource impacts not anticipated when
the original plan was approved.
Comment: The allocation of 120 days to determine whether an
applicant had included all the required information in a plan of
operations was excessive. All the reviewers remarked that the Forest
Service should be able to determine in less than 120 days whether a
plan of operations is complete.
Response: The Department agrees. Determination of whether a plan of
operations is complete should be a fairly routine task that entails a
comparison of the items listed in Sec. 292.63 of the rule with the
items submitted by the applicant as part of the plan of operations.
Clearly, acknowledgment that a plan is complete should not be construed
as a determination that valid existing rights have been established or
that the plan has been approved. It merely means that the necessary
information has been supplied and that the Forest Service will use this
information to conduct its review. In light of the comments received,
the time to complete this task has been shortened to 60 days in the
final rule.
Comment: The proposed rule turns mining law ``upside down'' by
making a claimant prove valid existing rights under a burdensome and
lengthy process and unlawfully provides that mineral development
activities of those possessing valid existing rights are subject to
regulation. One reviewer contended that because claimants are entitled
to the exclusive use and possession of the valuable minerals they
discover, the proposed rule violates the United States mining laws by
shifting the burden from the Government to the operator to demonstrate
the establishment of valid existing rights. In addition, by making this
burden as onerous and time consuming as possible, the reviewer asserted
that the proposed rule is an attempt to drive all mining out of the
SRNRA. Finally, this reviewer contended that the proposed rule violates
Congress's specific instructions that mining claimants are not to be
disturbed by the Department's management of the SRNRA.
Response: The Department disagrees with this reviewer's
characterizations. The exclusive use and possession referred to by this
reviewer applies to other private parties but not to the United States,
which, in this instance, is responsible for the administration of the
National Forest System lands in the SRNRA on which the claims are
located. The mere location of a claim does not presumptively make it
valid and an agency operating under a mandate to minimize surface
disturbance may properly require the mining claimant to establish the
existence of a valid existing right before allowing operations to
proceed. Richard C. Swainbank, 141 IBLA 37, 44 (1997).
In response to the allegation that the process was ``as onerous and
time consuming as possible,'' the Department merely states that one of
the primary objectives of this rule is to ensure that those conducting
mineral development activities in the SRNRA have established that they
possess valid existing rights. The Department does not believe that a
system, requiring that the party asserting valid existing rights
produce whatever evidence is in its possession to substantiate its
claim, is either onerous or time consuming. It is not the intent of the
Department to eliminate mining in the SRNRA in those instances where
valid existing rights have been established.
Finally, the Department disagrees with the assertion that holders
of valid existing rights are not to be disturbed by the Forest
Service's administration of the SRNRA. Although the reviewer refers to
``Congress'' specific instructions,'' no citation to the Act is
supplied. The Department believes that the reviewer may be relying on
Section 8(c) of the Act for this proposition. However, Section 8(c)
prohibits mineral development activity on federally owned land in the
SRNRA subject to valid existing rights. 16 U.S.C. 460bbb-6(c). Section
8(c) does not address under what circumstances mineral development
activities may be conducted in the SRNRA where valid existing rights
have been established. That direction is set forth in Section 8(d) of
the Act which provides for the issuance of supplementary mining
regulations. Id. at section 460bbb-6(d). Unlike Section 8(c), Section
8(d) does not include a ``subject to valid existing rights'' proviso.
Id. Thus, all mining activities in the SRNRA are subject to
[[Page 15051]]
the supplementary regulations, a view corroborated by legislative
history. The original version of the SRNRA legislation would have
prohibited all mineral development activities. As a result of concerns
for the potential takings liability associated with a blanket
prohibition on all mining activities, the legislation was subsequently
amended to prohibit mining subject to valid existing rights and to
authorize supplementary regulations governing all mining operations for
which valid existing rights were established. The chief sponsor of the
Act commented,
With regard to mining, the amendments would give explicit
recognition to the rights associated with valid existing claims, and
direct the Secretary to issue supplementary regulations designed to
`promote and protect' the purposes for which the recreation area is
created. Although I remain concerned about the potential for
destructive mining, I am hopeful that the supplemental regulations
will address these concerns.
136 Cong. Rec. H13045, 13046 (Oct. 26, 1990) (Statement of Rep. Bosco).
The Act and the legislative history are clear that only those operators
who have established valid existing rights may conduct mineral
development activities in the SRNRA and, where allowed, those
activities must be conducted in conformance with the provisions of this
rule.
Alternatively, the reviewer may be contending that the Department
lacks authority to require a mining claimant to establish that a mining
claim constitutes a valid existing right which survived the withdrawal
and that the only means for the Government to consider the valid
existing rights issue is in connection with a mineral contest
proceeding before the Bureau of Land Management. If that is the
reviewer's contention, it is plainly inconsistent with the Department
of the Interior's administrative interpretations of the United States
mining laws.
As discussed previously, there is nothing in the Act to suggest
that persons with valid mining claims predating the establishment of
the SRNRA were not to be disturbed by the Department's management of
the SRNRA. Rather, Congress merely withdrew the SRNRA from the
operation of the United States mining laws ``subject to valid existing
rights'' just as it has done many times with respect to other federally
owned lands. In discussing a situation where mining operations could
only be conducted as an incident of a valid existing right, the
Interior Board of Land Appeals observed that ``(a)ny inference * * *
that the mere location of a mining claim raises a presumption of
validity, vis-a-vis the United States is plainly wrong. The mere
assertion of a claim to land is simply that.'' Southern Utah Wilderness
Alliance, 125 IBLA 175, 188 n.7 (1993). The Board also observed that
even in a contest proceeding brought by the government ``it is the
claimant who must establish the validity of the claim.'' Id. The Board
then recited its holding in Havlah Group, 60 IBLA 349, 361 (1981) that
``it is not unreasonable to require a claimant to make a preliminary
showing of facts which support a valid existing right.'' Id. at 188. In
Havlah Group, where a proposed plan of operations had been submitted
for lands on which all actions of the Secretary of the Interior under
the statute were ``subject to valid existing rights,'' the Board noted
that once the claimant had submitted a preliminary showing, the Bureau
of Land Management could either bring a mineral contest challenging the
validity of the claim or permit the operations to go forward. 60 IBLA
at 361. See also, Richard C. Swainbank, 141 IBLA 37, 44 (1997); Richard
C. Behnke, 122 IBLA 131, 140 n.13 (1992). Thus, persons holding mining
claims in the SRNRA are not entitled to any presumption that those
claims constitute valid existing rights. It is fully consistent with
the Act and the United States mining laws for the Department, which
operates under a mandate to minimize surface disturbance caused by
mining operations, to require claimants ``to affirmatively establish
the existence of a valid existing right * * *.'' Richard C. Swainbank,
141 IBLA at 44. For these reasons, no changes have been made in the
final rule in response to these comments.
Comment: There was no explanation of what might constitute ``good
cause'' so as to justify an extension of time beyond 2 years for the
Forest Service to complete a valid existing rights determination. One
reviewer objected to Sec. 292.64(a)(1) and asserted that the proposed
rule failed to explain ``good cause'' or otherwise justify why it might
take longer than 2 years to complete a valid existing rights
determination given that, among other things, Sec. 292.63(b) requires
the operator to provide all of the information necessary to make a
valid existing rights determination. With respect to the examples of
good cause mentioned in the preamble to the proposed rule, the reviewer
argued that matters such as budget and manpower availability are within
the control of the Forest Service and that weather considerations are
unimportant because there is little need for a site visit to determine
the validity of the type of mining claims occurring in the SRNRA.
Response: The Department disagrees to the extent that the
respondent suggests that the Forest Service only needs the information
submitted by a claimant in order to make a valid existing rights
determination. The Government has a responsibility to insure that valid
mining claims are recognized, invalid mining claims are eliminated, and
the rights of the public are preserved. Cameron v. United States, 252
U.S. 450, 460 (1920). This responsibility is significant because as the
Supreme Court recognized in that case, invalid mining claims unlawfully
appropriate public lands to private use contrary to the rights of the
public. The Government's independent responsibility to determine the
validity of a mining claim cannot be discharged merely by accepting at
face value whatever information is supplied by the claimant, who is the
proponent of the allegedly valid mining claims. In all cases, the
Government must perform its own field examination of the mining claim
which allegedly constitutes a valid existing right to confirm the
information submitted by the operator.
As explained in great detail in the preamble to the proposed rule,
the field examination of a mining claim and the preparation of a
written mineral report by a certified mineral examiner is a complicated
and lengthy process. While the Department will use its best efforts to
complete the valid existing rights determination within 2 years, many
factors acting singly, or in combination, may make it impossible. Among
those factors are the inaccessibility of field sites due to flooding,
landslides, or fires; the unavailability of qualified personnel due to
reassignments for fire fighting or other emergencies, protracted
medical leave, unanticipated retirements, other previously scheduled
validity, or valid existing rights determinations; the time necessary
to prepare environmental documents required for sampling on the claim;
or the unique technical issues presented by a mining proposal. It is
not possible to identify all of the events and contingencies that could
cause a justifiable delay in a valid existing rights determination. For
these reasons, no change was made in Sec. 292.64(a)(1) in the final
rule.
Comment: The number of mineral examiners in the Pacific Southwest
Region of the Forest Service is unclear. One reviewer noted that there
appeared to be a discrepancy in the second proposed rule regarding the
number of Forest Service mineral examiners in the Pacific Southwest
Region.
[[Page 15052]]
Response: There was no discrepancy. To clarify what was stated in
the second proposed rule, there are five certified mineral examiners in
the region. Two of the five are also certified review mineral examiners
and, therefore, are qualified to conduct mineral examinations and to
serve as reviewers who approve mineral reports prepared by other
mineral examiners. No change was made in the final rule based upon this
comment.
Comment: The FS has adequate staffing to handle the anticipated two
plans per year in less than 2 years. Two reviewers asserted that the
existing cadre of certified mineral examiners in the Pacific Southwest
region should be able to complete valid existing rights determinations
for claims in the SRNRA in less than 2 years since only two plans of
operations are estimated to be submitted per year. One reviewer also
asserted that the Department can allocate its financial and human
resources as it deems appropriate and that it would be improper for the
Department to deploy its manpower in a fashion which precludes
completion of the required examinations in less than 2 years.
Response: An employee who is not certified as a review mineral
examiner or as a mineral examiner, may only work on a valid existing
rights determination under the direct supervision of someone who is
certified. Only certified Forest Service mineral examiners or review
mineral examiners are allowed to conduct valid existing rights
determinations. There are only five such employees in the Pacific
Southwest Region of the Forest Service. These five individuals are
responsible for conducting valid existing rights determinations in all
withdrawn areas in the Pacific Southwest Region, not just the SRNRA. It
would be unfair to individuals whose claims lie outside the SRNRA if
the Forest Service redirected the focus and energy of the five Pacific
Southwest Region examiners so that valid existing rights determinations
in the SRNRA would be completed first. There is no reason that mining
claimants in the SRNRA should be afforded preference over others whose
mining claims are located elsewhere in the region. Accordingly, even
though it is estimated that only two plans of operations will be
submitted annually for mining claims in the SRNRA, those plans must be
reviewed, along with other plans submitted in the region, in the order
that they were received.
The Department agrees that, in theory, it is possible to reassign
Forest Service personnel from other regions to complete priority work
assignments in the Pacific Southwest Region. However, agency staffing
levels are at a significantly lower level than a decade ago due to
reduced congressional appropriations. Current staffing levels do not
permit reassignment of certified mineral examiners without creating
substantial delays in the completion of work which those examiners are
responsible to perform in their regularly assigned region. The work
that would not be completed in the originating region includes the same
type of work; that is, valid existing rights determinations required
before operations are authorized in the many National Forest System
areas that have been withdrawn from the operation of the United States
mining laws subject to valid existing rights. Thus, this comment also
fails to recognize that prioritizing valid existing rights
determinations for claimants in the SRNRA will prejudice similarly
situated claimants in other withdrawn areas.
Furthermore, as discussed in connection with the preceding comment,
it is not just personnel limitations which may result in a valid
existing rights determination taking 2 or more years to complete. Other
factors, which may lengthen the time to make a determination, include:
The short field season in the SRNRA; the time needed to prepare
environmental documents required for surface disturbing sampling
operations; or the inaccessibility of the mining claims due to
flooding, fire conditions, landslides, or other natural conditions. For
these reasons, no change has been made in Sec. 292.64(a)(1) of the
final rule in response to these comments.
Comment: The rule should include a provision requiring ``prompt''
notification of BLM of any adverse valid existing rights determination.
One reviewer observed that the proposed rule properly required that
notice of an adverse valid existing rights determination be given to an
operator that states, among other things, that the Forest Service will
promptly notify the Bureau of Land Management of its determination and
request initiation of a mineral contest. However, the reviewer faulted
the proposed rule for not containing a separate requirement that the
authorized officer promptly notify the Bureau of Land Management of an
adverse determination and request initiation of a mineral contest.
Response: Section 292.64(b) of the proposed regulation required the
Forest Service to notify the operator of a determination that there is
not sufficient evidence of valid existing rights. That paragraph also
required the notice to the operator to state that the Forest Service
will ``promptly'' notify the Bureau of Land Management of its
determination and request the initiation of a mineral contest action.
The Department believed that this provision would insure quick Forest
Service action on the notification to the Bureau of Land Management.
However, to make it perfectly clear that this is also an affirmative
requirement, paragraph (b) has been broken down into paragraphs (b)(1)
and (b)(2). Paragraph (2) contains this affirmative requirement to
notify the Bureau of Land Management of the Forest Service's
determination and to request the initiation of a mineral contest.
Comment: The Forest Service lacks authority to treat an authorized
officer's decision that there is not sufficient evidence of valid
existing rights as final agency action. One reviewer contended that
Sec. 292.64(c), which stated that an authorized officer's decision that
there is not sufficient evidence of valid existing rights was final
agency action, rendered the BLM mining claim contest action process
meaningless. The reviewer also alleged that this provision conflicts
with the March 14, 1997, decision in California Nickel Corporation v.
Glickman, No. C94-3904-DLJ, slip op. (N.D. Cal.). The reviewer
recommended that the final rule include a provision stating that the
Forest Service must change its position concerning valid existing
rights if the Department of the Interior rules in favor of the operator
on a Forest Service's mineral contest. The reviewer also recommended
that the Department make clear in the final rule that referral of the
Department's preliminary adverse valid existing rights determination to
the Department of the Interior is the appropriate administrative
process rather than appeal through the Forest Service or the Department
of Agriculture. Finally, the reviewer recommended that the final rule
state that there is no final determination of valid existing rights
until the Department of the Interior administrative process has been
exhausted.
Response: The term ``final agency action'' in Sec. 292.64(c)
resulted in unintended confusion. This term was used merely to clarify
that an authorized officer's determination would not be subject to
appeal within the Department because the previous paragraph requires
the issue to be referred to the Bureau of Land Management. In response
to this comment and to avoid misinterpretation of the provision, the
term ``final agency action'' has been omitted from Sec. 292.64(c) in
the final rule.
Other changes have been made to this section in the final rule to
make it clear that resorting to the BLM contest
[[Page 15053]]
proceeding is not meaningless and to emphasize that the Forest Service
will recognize that a claimant has valid existing rights if that is the
final determination of the Department of the Interior or of a court
reviewing the Department of the Interior's decision in the contest
action. Specifically, Sec. 292.64(b)(1) has been revised to clarify
that the effect of the authorized officer's determination that there is
insufficient evidence of valid existing rights is to stay further
consideration of the proposed plan of operations pending final action
on the valid existing rights issue by the Department of the Interior or
by final judicial review. Also, Sec. 292.64(d) has been revised to
require the authorized officer to resume consideration of the plan of
operations if the final agency action by the Department of the Interior
or final judicial review of the Department of the Interior decision
determines that valid existing rights exist.
Finally, to address the reviewer's concerns, the remainder of the
language in Sec. 292.64(c) has been retained to make it clear that a
decision finding insufficient evidence of valid existing rights is not
subject to appeal in this Department.
Comment: Once a valid existing rights determination is made in
favor of the operator, the rule should make the authorized officer's
review of the plan of operations subject to the Forest Service's
general mining regulations set forth at 36 CFR 228.5. The proposed rule
provides an unlimited amount of time to complete the review of the
operational aspects of the mineral operation. One reviewer contended
that there is no reason why the applicable time limitations in the
Forest Service's general mining regulations should not apply to
consideration of the operational aspect of a proposed plan of
operations for the SRNRA. With regard to one of the reasons given by
the Department in the second proposed rule for the absence of definite
time limitations for reviewing a plan of operations (the need to comply
with the National Environmental Policy Act (NEPA) for approval of
large-scale operations), the reviewer noted that general regulations
provide that the authorized officer must notify the operator no later
than 30, or at times 90, days after the filing of a plan of operations
that it cannot be approved until completion of NEPA compliance. The
operator contended that this feature of the general mining regulations
keeps the process moving while the proposed SRNRA regulations
institutionalize delay.
Response: The reviewer may have overlooked several reasons, in
addition to NEPA compliance, given by the Department for the absence of
definite time limitations for reviewing proposed plans of operations.
As was stated in the preamble to the second proposed rule, NEPA is just
one of the statutes with which the Forest Service must comply in
reviewing a proposed plan of operations. Compliance with the
requirements of the Endangered Species Act (ESA) can take several
years, and, in contrast to NEPA where the Forest Service is usually in
charge of the compliance process, the priorities and resources of the
National Marine Fisheries Service or the United States Fish and
Wildlife Service often determine the pace of compliance with the ESA.
The reviewer also may be implying that Sec. 228.5 of this chapter
adequately reflects the requirements of NEPA by providing more than 90
days for NEPA compliance. That is not necessarily correct. While 36 CFR
228.5 provides for more than 90 days for review of a plan of operations
when NEPA requires the preparation of an environmental impact
statement, the regulations do not provide more than 90 days for review
of a plan of operations when NEPA requires the preparation of an
environmental assessment. However, the preparation of environmental
assessments usually requires substantially more time than 90 days.
In relying on 36 CFR 228.5, the reviewer overlooks the fact,
recognized in Baker v. United States Department of Agriculture, 928 F.
Supp. 1513, 1519 (D.Idaho 1996), that a ``conspicuous conflict[] occurs
between 36 CFR 228.5 and the requirements of the NEPA and the ESA.'' In
Baker, the court found that the conflict arose because 36 CFR 228.5 was
promulgated in 1974, before the 1978 promulgation of regulations
concerning environmental assessments and before the 1986 promulgation
of regulations under the Endangered Species Act. The Baker court held
that the 90-day time limit in Sec. 228.5 and the regulatory
requirements of the NEPA and the ESA are in ``irreconcilable
conflict.'' Therefore, the court held that ``the 90-day limit must give
way'' due to the conflict with the more recent NEPA and ESA
regulations. Id. at 1520. However, as the court held, this result does
not mean that the ``Forest Service is unencumbered by time limitations
in examining [plans of operations]'' because there are other time
limits in the NEPA and ESA process as well as ``a general rule
prohibiting unreasonable delays.'' Id. Consequently, even if the
requirements of Sec. 228.5 of this chapter are not applicable, Forest
Service review of a proposed plan of operations ``remains subject to
time constraints * * * '' and the SRNRA regulations will not
institutionalize delay. Id.
For these reasons, the Department believes that it would be
senseless and misleading to persons asserting that they possess valid
existing rights to conduct locatable mineral operations in the SRNRA,
to adopt supplementary regulations which rely on the time limitations
for reviewing a plan of operations set forth in the Forest Service's
general mining regulations as requested by the reviewer. While the
Forest Service will make every effort to process plans of operations as
expeditiously as possible, the Department has made no changes to the
text of this section in the final rule.
Comment: The rejection of a plan of operations by the Forest
Service is unlawful and would constitute a taking. One reviewer
asserted that the Forest Service cannot simply refuse to approve a plan
of operations as suggested in paragraphs 292.64(e) and (f). The
reviewer alleged that a refusal to approve a plan of operations would
preclude a claimant from working his claim and constitute a taking of
the claimant's property. The reviewer argued that there was no
comparable provision in the Department's general mining regulations at
part 228, subpart A, of this title and no administrative basis for
departing from those regulations. However, the reviewer also argued
that Sec. 228.5(a)(3) of this title, at least requires the authorized
officer to ``[n]otify the operator of any changes in, or additions to,
the plan of operations to meet the purpose of the regulations in this
part.''
Response: The Department agrees that it does not have the authority
to refuse to approve a reasonable plan of operations which is not
otherwise prohibited by law. However, the Department is not obligated
to allow unreasonable mining operations to be conducted on National
Forest System lands. Thus, even with respect to mining operations which
were being conducted before the promulgation of 36 CFR part 228,
subpart A, it was held that the Department could prohibit unreasonable
mining operations pursuant to the Surface Resources Act of 1955, 30
U.S.C. 611-14. United States v. Richardson, 599 F.2d 290, 291, 294-95
(9th Cir. 1979). The reason for the court's conclusion was that this
statute ``supersede(d) and modif[ied] the pre-existing recognition of
broad rights under 30 U.S.C. 26 * * *.'' Id. at 295.
This authority did not change with the promulgation of 36 CFR part
228,
[[Page 15054]]
subpart A. While the reviewer may argue that 36 CFR part 228, subpart
A, does not allow the Forest Service to refuse to approve a plan of
operations, that argument is inconsistent with 36 CFR 228.5(a)(3), a
provision cited by the reviewer, which is only relevant when the Forest
Service has refused to approve a proposed plan of operations. Indeed,
in cases involving mining operations subject to 36 CFR part 228,
subpart A, courts have found that Forest Service may refuse to approve
an unreasonable plan of operations or a plan otherwise prohibited by a
law such as the Endangered Species Act. ``(T)he Forest Service clearly
has the power to reject an unreasonable plan (of operations).'' Baker
v. United States Department of Agriculture, 928 F. Supp. 1513, 1518 (D.
Idaho 1996). ``Of course, the Forest Service would have the authority
to deny an unreasonable plan of operations or a plan otherwise
prohibited by law. E.q. 16 U.S.C. 1538 (endangered species located at
the mine site.).'' Havasupai Tribe v. United States, 752 F. Supp. 1471,
1492 (D. Ariz. 1990), aff'd sub nom. Havasupai Tribe v. Robertson, 943
F.2d 32 (9th Cir. 1991).
The second proposed rule did not embody a meaningful departure from
36 CFR 228.5(a). Proposed Sec. 292.64(e) and (f) each specifically
provided that disapproval of a plan of operations is an option
available to the authorized officer. Similarly, when 36 CFR 228.5(a)(1)
and (a)(3) are read together there is no doubt that disapproval of a
plan of operations is also an option available to the Forest Service
under the Department's general mining regulations. Also, while 36 CFR
228.5(a)(3) requires the authorized officer to ``(n)otify the operator
of any changes in, or additions to, the plan of operations to meet the
purpose of the regulations in this part,'' proposed Sec. 292.64(f)
requires the authorized officer to ``explain why the proposed plan of
operations cannot be approved.'' The variation between 36 CFR 228.5 and
292.64(e) and (f) of this rule appears to be a distinction without a
difference. At most, the difference is that under these final
regulations, the Department gives the operator the discretion to
propose an alternative plan of operations which, while addressing the
authorized officer's concerns, also best meets the operator's
objectives instead of prescribing the approach that the operator must
adopt.
To avoid any confusion, it should be understood that the Forest
Service will, where necessary, make every effort to resolve differences
and to negotiate plans of operations that are acceptable to the
operator and to the Forest Service before exercising the authority to
refuse to approve a plan of operations. However, as a last resort, the
Forest Service may in certain circumstances, be left no alternative
except to refuse a plan of operations. Whether refusing to approve a
plan of operations would constitute a taking cannot be ascertained at
this juncture. However, to the extent that one of the factors
considered in any regulatory takings claim is the reasonable,
investment backed expectations of the property owner, it may be
difficult for an operator to demonstrate that the agency's refusal to
approve an unreasonable plan of operations requires payment of just
compensation under the Fifth Amendment. For these reasons, no changes
were made to the final rule in response to this comment.
Comment: The proposed time period for the mineral operations fails
to give recognition to the operator's rights under the United States
mining laws and provides another opportunity to delay mining. One
reviewer argued that Sec. 292.64(g) of the second proposed rule, which
would establish a time period for the mineral operations authorized by
an approved plan of operations equal to the minimum amount of time
reasonably necessary for a prudent operator to complete the mineral
development activities covered by the plan, would limit the length of
time that the operator may engage in mining operations on a mining
claim and consequently nullify the operator's rights under the United
States mining laws, which do not include such a restriction. The
reviewer contended that recognition of valid existing rights means that
the Government must give respect and effect to the entirety of an
operator's rights under the mining laws. The reviewer also contended
that proposed Sec. 292.64(g) provides another opportunity for the
Forest Service to delay mining while the operator challenges the Forest
Service's determination of the amount of time that would be reasonably
necessary for a prudent operator to complete the mineral activities.
Finally, the reviewer asserted that there is no reason why the final
rule should not emulate the Forest Service's general mining regulations
by merely requiring that the plan of operations describe the duration
of the expected operations.
Two other reviewers also objected to the proposal to set the
operating timeframe for the minimum amount of time necessary, arguing
that unforeseen events, such as changes in market conditions, severe
weather, strikes, acts of God, or force-majeure can delay start-up and
completion timeframes. Both reviewers also noted that additional
mineral reserves may be identified after production begins so that
additional time is required to mine the deposit. One reviewer
recommended that the timeframe be left open ended or at the very least
set for 300 percent of the minimum amount of time anticipated. That
reviewer also stated that a guaranteed right to extend the operating
timeframe must be provided. Finally, that reviewer contended that
Sec. 292.64(g) could cause a takings by making financing unavailable
and stated that a takings impact analysis had not been prepared for
this provision. The other reviewer recommended that the timeframe be
left open ended or set by the miner.
Response: Several reviewers appear to have assumed that it was not
possible to obtain an extension of the time period provided in an
approved plan of operations to conduct authorized operations. This
interpretation was not the Department's intent. Accordingly, a new
Sec. 292.64(h)(4), is included in the final rule. This new paragraph
makes it clear that a plan of operations may be modified to extend its
term or scope when the criteria set forth in Sec. 292.64(i) for
submission of a supplemental plan of operations or a modification of
the plan of operations pursuant to 36 CFR 228.5, are not triggered. The
final rule consequently cannot be construed as preventing an operator
from fully mining a valuable locatable mineral deposit in the SRNRA on
a mining claim which continues to constitute a valid existing right.
The other comments concern the standard included in proposed
Sec. 292.64(g) for establishing the term of approval for a plan of
operations. The United States mining laws do not address the question
of the duration of mining operations. However, judicial and
administrative interpretations of the mining laws have long made it
clear that ``(u)nder the mining laws Congress has made public lands
available to people for the purpose of mining valuable mineral deposits
and not for other purposes.'' United States v. Coleman, 390 U.S. 599,
602 (1968). Indeed, the ``all-pervading purpose of the mining laws is
to further the speedy and orderly development of the mineral resources
of our country.'' United States v. Nogueira, 403 F.2d 816, 823 (9th
Cir. 1968)(citation omitted). Mining claims which do not ``conform to
the law under which they are initiated * * * work an unlawful private
appropriation in derogation of the rights of the public.'' Cameron v.
United States, 252 U.S. 450, 460 (1920). Thus it is beyond dispute
[[Page 15055]]
that the Government has a definite interest in seeing that operations
on mining claims are diligently pursued to a conclusion, that the lands
are reclaimed, and that the reclaimed lands are restored to other
public uses, particularly where Congress has given the lands a special
designation and management emphasis such as in the case of the SRNRA.
These interests are all fostered by requiring the completion of mining
operations within the time provided for in proposed Sec. 292.64(g) of
this part. Therefore, this provision does not conflict with the United
States mining laws. For the same reasons, it would be inappropriate to
adopt a final rule which provides that the term of approval of a plan
of operations is open-ended, is 300 percent of the minimum amount of
time reasonably necessary for a prudent operator to complete the
authorized operations, or is unilaterally established by the operator.
Limiting the period of approval of a plan of operations, as
provided in the second proposed rule, does not conflict with a
determination that an operator has valid existing rights because that
determination is time dependent and not conclusive of present
conditions and rights. It is beyond dispute that a mining claim, which
constituted a valid existing right at one time, may lose that status. A
claim can become invalid due to a change in markets which results in a
loss of the discovery or due to failure to make certain filings or
payments. Even if a discovery can be shown to exist on a mining claim,
the claim can be invalidated upon a showing that it was not located or
held in good faith for mining purposes. In re Pacific Coast Molybdenum
Co., 75 IBLA 16, 35 (1983). Moreover, where valid existing rights
continue to be maintained and an operator requires additional time to
complete operations, such time can be provided pursuant to either
Sec. 292.64(h)(4) or Sec. 292.64(i) of the final rule. These final
rules appropriately consider and recognize valid existing rights.
Therefore, no change was made to the rule in response to these
comments.
The Department agrees that severe weather, strikes, acts of God,
and force-majeure situations can delay start-up and completion of
mineral operations. However, delays occur regardless of what criteria
the Government selects to determine the time period for approval of a
plan of operations. Rather than adjusting the final rule to provide
additional time for the conduct of operations, which in many cases
might be unnecessary, the Department believes that the course of action
consistent with the long-standing interpretations of the United States
mining laws is to approve operations for the minimum amount of time
reasonably necessary for a prudent operator to complete the operations
and to provide for an extension if, and when, there is a delay in the
start-up or completion of the approved operations. However, the
Department cautions that changes in market conditions, in and of
itself, would not necessarily warrant an extension in the approval
period since it might actually result in the loss of a discovery and of
the valid existing right. Similarly, the suggestion that an operator is
entitled to an extension of the term of approval for a plan of
operations where operations have not been completed overlooks the fact
that a variety of circumstances can result in the loss of a valid
existing right to conduct operations on a mining claim after the
initial approval of a plan of operations. Therefore, it might be
inconsistent with the United States mining laws to extend the term of
approval of the plan of operations in some circumstances where the
suggested criteria are met. Accordingly, the final rule was not changed
in response to these suggestions.
The Department agrees that more time in addition to that authorized
by a plan of operations may be required to mine additional mineral
reserves identified after mineral production begins pursuant to the
approved plan. However, this fact does not justify the suggestion that
the original term of approval of a plan should be inflated to cover
such a contingency. It is well established that mining activities are
subject to regulation to protect the environment. Congress also has
specifically declared that the policy of the Federal Government is to
encourage private enterprise in ``the reclamation of mined land, so as
to lessen any adverse impact of mineral extraction and processing upon
the physical environment * * *.'' 30 U.S.C. 21a. The environmental
impacts of mining mineral reserves that are identified after approval
of a plan obviously could not have been adequately considered or
mitigated by the authorized officer in reviewing the proposed plan.
Thus, it would be inconsistent with 30 U.S.C. 21a and probably other
environmental statutes, for the Forest Service to permit the mining of
reserves identified after mineral production begins without review of
those operations pursuant to Sec. 292.64(h)(4) or Sec. 292.64(i) of
this final rule, as applicable. Consequently, the possibility that
additional reserves might be identified after mineral production begins
does not justify the suggestion that the period of approval for a plan
of operations should be longer than the minimum amount of time
reasonably necessary for a prudent operator to complete the approved
mineral development activities. The final rule has not been changed in
response to this comment.
The Department agrees that mining operations might be delayed as a
consequence of an operator's decision to challenge the Forest Service's
determination of the amount of time that would be reasonably necessary
for a prudent operator to complete the approved mineral operations. The
same is true with respect to all requirements included in an approved
plan of operations and, for that matter, in all authorizations issued
by the Government. The only way to eliminate this risk would be to
permit mining claimants to engage in unrestricted and unregulated
mining on National Forest System lands. Congress rejected that option
in 1897 when it enacted the Organic Administration Act which authorized
the Department of Agriculture to promulgate reasonable rules and
regulations to protect the surface of National Forest System lands from
the adverse impacts of locatable mineral operations. 16 U.S.C. 551. In
enacting 30 U.S.C. 21a, Congress restated that the policy of the
Federal Government is to encourage private enterprise in ``the
reclamation of mined land so as to lessen any adverse impact of mineral
extraction and processing upon the physical environment * * *.'' Thus,
the fact that an operator's challenge that the term of approval of a
plan of operations might delay the commencement of the approved
operations does not warrant a change in Sec. 292.64(g). The likelihood
that a challenge to an approved plan of operations will delay the
start-up of such operations is a risk that the operator must evaluate
and assume in deciding whether to bring the challenge. No change to the
rule was made based upon these suggestions.
From a legal standpoint, the Department disagrees with the
reviewer's contention that the inability to secure financing, in and of
itself, may result in a taking and we are unaware of any case which
supports such a proposition. As described in some detail previously,
takings cases are highly fact specific inquiries which generally
require a court to consider the following factors: the character of the
governmental action, the economic impact of that action, and the
reasonable investment-backed expectations of the property owner. The
inability to obtain financing may have some bearing on
[[Page 15056]]
one or more of the aforementioned factors, but it is not dispositive.
From a practical standpoint, however, it seems somewhat counter
intuitive to contend that an operator would be unable to obtain
financing based on the establishment of an approval period that was
calculated to be sufficient for a prudent operator to complete the
mining operations as documented in the plan of operations. However, in
light of the change made to the final rule which expressly allows for
extensions in the approval period, the Department believes that this
reviewer's concern about the potential takings implications of this
provision has been resolved.
For these reasons, Sec. 292.64(g) of this part is reasonable and
within the authority of the agency. This provision is preferable to the
agency's general mining regulations which do not specifically address
the issue of the term of approval of a plan of operations other than to
require that the proposed plan of operations submitted by the operator
must describe the period during which the proposed activity will take
place.
The Department believes that adopting the requirement in
Sec. 292.64(g) of this subpart may result in the following benefits.
Specifying the term of approval of a plan of operations should result
in increasing the promptness with which mining operations are pursued
to a conclusion, and the promptness with which the lands are reclaimed
and restored to other public uses. Regrettably, past experience
suggests that, on occasion, operators behave less diligently once the
mining phase ceases and the reclamation phase begins because
reclamation operations are costly rather than profitable. Where the
term of a plan of operations is fixed rather than open-ended, sanctions
can be imposed for failure to complete the reclamation activities by
the plan's termination date. This fosters the well recognized purposes
of the United States' laws of furthering the speedy and orderly
development of the nation's mineral resources and insuring that federal
lands are not in an unreclaimed state, or reclaimed at public expense,
to the detriment of the right of the American people to use public
lands. These goals are particularly important where, as in the case of
the SRNRA, Congress has withdrawn lands from the operation of the
United States mining laws subject to valid existing rights and
specified special purposes for which the lands are to be administered.
Also knowing when mineral operations must be completed will improve
the agency's ability to evaluate the environmental impacts of those
activities because those impacts are dependent on the rate at which the
activities are conducted as well as the nature of the activities.
Better information regarding the likely impacts of mineral operations
should result in the preparation of better environmental documents
required by procedural statutes such as the National Environmental
Policy Act and better compliance with substantive environmental
statutes such as the Endangered Species Act. Better information about
the likely impacts of mining also will allow the Government to make
more accurate determinations regarding the amount of the bond that an
operator should be required to post.
For these reasons, Sec. 292.64(g) of this part was not revised in
response to the comments. However, a new Sec. 292.64(h)(4), was
included in the final rule to clarify that it is possible to modify an
approved plan of operations to extend its term or scope.
Comment: Section 292.64(i) of the proposed rule contains an
erroneous reference to Sec. 292.64. One reviewer detected that
Sec. 292.64(i) included a reference to Sec. 292.64 rather than
Sec. 292.63.
Response: The Department recognizes the potential for confusion
resulting from including a reference to Sec. 292.64 in Sec. 292.64. To
rectify the matter, this final rule paragraph has been changed to
eliminate any reference to a section of the supplementary regulations.
It should be well understood that if a new or supplemental plan of
operations is necessary, it will be subject to the review and approval
provisions of these supplementary regulations.
Section 292.65, Plan of Operations--Suspension
This section of the second proposed rule authorized the Forest
Service to suspend mineral development activities if the operations are
being conducted in violation of applicable law, regulation, or the
terms and conditions of the operator's approved plan of operations.
Except in cases where the violations present an imminent threat of harm
to public health, safety, or the environment, this provision required
the Forest Service to give the operator 30 days advance notice of the
suspension. The 30-day notice should, in most instances, give the
operator sufficient time to correct the violations prior to the
suspension taking effect. In cases where mineral operations present an
imminent threat of harm to public health, safety, or the environment
(or where such harm is already occurring), regardless of whether the
operator is in violation of applicable laws, regulations, or the terms
and conditions of the plan of operations, the second proposed rule
authorized the Forest Service to take immediate action to suspend the
mineral development activity. In these cases, the rule directed the
Forest Service to notify the operator of the reason for the action as
soon as it is reasonably practicable after the suspension.
Comment: Suspension authority is duplicative of existing authority
and may result in regulatory abuse. One reviewer noted that the Forest
Service already has broad enforcement authority to suspend mining
operations and that this provision in the rule is, therefore,
unnecessary and will lead to regulatory abuses by the Forest Service.
Response: The current United States Department of Agriculture
regulations at 36 CFR part 228, subpart A, do not contain a provision
authorizing the Forest Service to suspend a mineral operation, in whole
or in part, if an operator is not in compliance with applicable
statutes, regulations or terms and conditions of the approved plan of
operations. Where there is an immediate threat to public health,
safety, or the environment, presented by the mining operation, this
provision allows the Forest Service to respond quickly. The potential
for regulatory abuse, if any, is significantly reduced by requiring
written notice to the operator which informs him or her of the basis
for the suspension.
Where there is no threat to public health, safety or the
environment, there realistically is no potential for ``regulatory
abuse'' feared by this reviewer since the Forest Service must inform
the operator in writing of the proposed suspension 30 days before it
takes effect. Generally, it is presumed that 30 days should be
sufficient time for the operator to address the concern which led to
the issuance of the suspension notice. For these reasons, no change has
been made to the second final rule as a result of this comment.
Section 292.69, Concurrent Reclamation.
The second proposed rule stipulated that reclamation of National
Forest System lands and resources should occur concurrently with the
mineral operation ``to the maximum extent practicable.''
Comment: The operator, not the Forest Service, should determine
what is reasonable and practicable reclamation. One reviewer
acknowledged that concurrent reclamation is a reasonable requirement to
protect the SRNRA so long as it is interpreted sensibly. However, the
reviewer asserted that
[[Page 15057]]
what is reasonable and practicable should be left to the judgment of
the operator, not the Forest Service.
Response: The regulations being adopted to govern mineral
operations in the SRNRA provide the operator an opportunity to give
input concerning reclamation measures appropriate for lands disturbed
by the mining activities. Section 292.63(b) of this part requires the
operator to submit a proposed plan of operations. Section 292.63(c)
requires the proposed plan to address environmental protection
requirements, including reclamation. Presumably an operator would not
propose reclamation activities considered to be impracticable. Assuming
that the Forest Service agrees that the proposed plan of operations
provides, to the maximum extent possible, that reclamation shall
proceed concurrently with the mineral operations and satisfies the
other requirements of 36 CFR 228.8, the reclamation would be approved.
It is standard Forest Service practice to work with an operator to
fashion a mutually agreeable solution in cases where the Forest Service
concludes that the proposed reclamation is unreasonable.
However, for a number of reasons, the Department cannot agree that
the operator should be given unilateral permission to determine how
reclamation of National Forest System lands should occur. Most
importantly, the statute, which extended the United States mining laws
to National Forest System lands reserved from the public domain,
charged the Department to ``insure the objects of such reservations,
namely, to regulate their occupancy and use and to preserve the forests
thereon from destruction * * *.'' 16 U.S.C. 551. Adopting the policy
advocated by the reviewer would effectively delegate the Department's
statutory duties to those whom the Department is required to regulate.
The manner in which lands are reclaimed also has an enormous
bearing on their ability to be restored to other productive uses. The
Forest Service has the ultimate responsibility to specify the manner in
which mined lands are reclaimed so that the rights of the public in
those lands are preserved.
Finally, there are great economic incentives for operators to
perform as little reclamation as possible, because reclamation
represents the most controllable cost of mineral operations. Letting
operators determine the type and scope of reclamation would likely
result in lesser protection being afforded the lands and resources
within the SRNRA than is provided outside the SRNRA. This practice
would be contrary to the statutory requirements to protect and preserve
the values of the SRNRA. For these reasons, no change has been made to
Sec. 292.69 as a result of the comment.
Comment: The extreme requirements in the concurrent reclamation
provision are not justified. One reviewer objected to the requirement
in proposed Sec. 292.69 that plans of operations should provide, to the
maximum extent practicable, that reclamation proceed concurrently with
the mineral operation. The reviewer asserted that there is no
administrative justification for departure from the agency's general
mining regulations which provide that reclamation must occur upon the
exhaustion of the mineral deposit or at the earliest practicable time
during operations, or within 1 year of the completion of operations,
unless a longer time is allowed by the authorized officer. The reviewer
also asserted that there is no administrative justification for
departure from the reclamation provision of the first final rule which
called for concurrent reclamation when practicable, not to the maximum
extent practicable. The reviewer asserts that Sec. 292.69 provides
another opportunity for the Forest Service to impose unreasonable and
expensive procedures upon an operator and, thereby, deprive him of his
property rights.
Response: As discussed previously, past experience demonstrates
that operators tend to be less diligent once mining ceases and
reclamation begins because reclamation of operations are costly rather
than profitable. The Department believes that requiring concurrent
reclamation to the maximum extent practicable will result in
reclamation being initiated and completed sooner than it would be under
the standards set forth in 36 CFR 228.8 of the Department's general
mining regulations or the April 3, 1996, final rule. This result is
important for a number of reasons.
The first involves the purposes of the Act. Section 2 of the Act
specifically enumerated the features that led to the designation of the
SRNRA. Some of these features included: (1) It represents one of the
last wholly intact vestiges of an invaluable legacy of wild and scenic
rivers, (2) it exhibits a richness of ecological diversity unusual in a
basin of its size, and (3) it offers exceptional opportunities for a
wide range of recreational activities, including wilderness, water
sports, fishing, hunting, camping, and sightseeing. The purposes of the
Act are to ensure ``* * * the preservation, protection, enhancement,
and interpretation for present and future generations of the Smith
River watershed's outstanding wild and scenic rivers, ecological
diversity, and recreation opportunities while providing for the wise
use and sustained productivity of its natural resources * * *.'' 16
U.S.C. 460bbb-2(a).
The SRNRA was recognized by Congress as a unique area to be
protected to the extent allowable by law. In addition, in Section 8 of
the Act entitled ``Minerals,'' Congress directed the Secretary of
Agriculture to promulgate supplementary regulations to promote and
protect the purposes for the recreation area is designated. 16 U.S.C.
460bbb-6(d). Therefore, this rule is specifically designed to
supplement the current locatable mineral regulations at 36 CFR part
228, subpart A, and thus provide a greater degree of protection for the
federal lands and resources in the SRNRA than may be available for
federal lands and resources administered elsewhere.
One additional protective measure is the concurrent reclamation
requirement in Sec. 292.69. This requirement will ensure that mined
land is restored to another productive use in the shortest possible
time. Reclamation will be required to the fullest extent practicable.
This will fulfill the Department's statutory obligation under the Act
to promote and protect the values for which the SRNRA was designated.
Secondly, requiring concurrent reclamation to the maximum extent
practicable will foster the Federal Government's policy to encourage
private enterprise in ``the reclamation of mined lands, so as to lessen
any adverse impact of mineral extraction and processing upon the
physical environment'' as established by Congress in 30 U.S.C. 21a.
Reclamation either eliminates or dramatically reduces the adverse
impacts of mineral extraction upon the environment. In most, if not all
cases, requiring more prompt reclamation will reduce the amount of
environmental impacts caused by mineral extraction.
Finally, the benefits of requiring concurrent reclamation to the
maximum extent practicable--increasing the promptness with which mined
lands are returned to other productive uses and reducing the overall
quantum of adverse impacts of mineral extraction upon the environment--
are consistent with the Department's charge to ``ensure the objects of
such reservations, namely to regulate their occupancy and use and to
preserve the forests thereon from destruction * * *.'' 16 U.S.C. 551.
Thus, the departure from the reclamation requirements in 36 CFR 228.8
and the April 3, 1996, final rule is reasonable and adequately
justified.
[[Page 15058]]
Mining claimants in the SRNRA have no right to conduct mineral
operations without adhering to reclamation requirements. The law, which
extended the United States mining laws to National Forest System lands
reserved from the public domain, specifically provides that persons
entering national forests for the purposes of prospecting, locating,
and developing the mineral resources thereof, ``must comply with the
rules and regulations covering such national forests.'' 16 U.S.C. 478.
Moreover, another section of that statute charged the Department to
``insure the objects of such reservations, namely, to regulate their
occupancy and use and to preserve the forests thereon from destruction
* * *.'' 16 U.S.C. 551. Also, while the reclamation requirement in
Sec. 292.69 of the second proposed rule is admittedly stricter than the
reclamation requirements in 36 CFR part 228, subpart A, or the April 3,
1996, final rule, it only requires concurrent reclamation to the
``maximum extent practicable,'' which is by definition, achievable. The
concurrent reclamation requirement by its own terms, therefore, does
not amount to a prohibition on a mining claimant's entitlement to
conduct mineral operations on a mining claim in which valid existing
rights have been established. Consequently, the assertion that the
concurrent reclamation requirement in Sec. 292.69 effects a taking of
the claimant's property rights is without merit.
For these reasons, no change has been made in Sec. 292.69 as a
result of the comment.
Section 292.70, Indemnification.
The second proposed rule specified that the owners and/or operators
of mining claims and the owners and/or lessees of outstanding mineral
rights would be liable for the following: (1) Indemnifying the United
States for injury, loss, or damage which the United States incurs as a
result of any mining operation in the SRNRA; (2) payments made by the
United States in satisfaction of claims, demands, or judgments for such
injury, loss, or damage; and (3) costs incurred by the United States,
including attorney's fees and expenses, for any action involving
noncompliance with an approved plan of operations or activities outside
a mutually agreed to operating plan.
Comment: The indemnification provision is vague and of questionable
legal authority. In addition to suggesting that this section was vague
and potentially over inclusive, one reviewer requested the agency to
specify the authority under which it may seek indemnification from
operators to recover costs associated with, among other things, injury,
loss, or damage to National Forest System lands and resources resulting
from mineral operations in the SRNRA. This reviewer concluded that
since this is a new provision for the SRNRA, there must be new
statutory authority or a recent change in the law from which it is
derived. If no such new authority exists, the reviewer argued that this
provision must be deleted.
Response: The authority for the indemnification provision in the
supplementary regulations for mining in the SRNRA is derived from the
Organic Administration Act of 1897, 16 U.S.C. 551, which states in
relevant part that,
The Secretary of Agriculture shall make provisions for the
protection against destruction by fire and depredations upon the
public forests and national forests which may have been set aside or
which may be hereafter set aside * * * and he may make such rules
and regulations and establish such service as will insure the
objects of such reservations, namely, to regulate their occupancy
and use and to preserve the forests thereon from destruction * * *.
The reviewer's presumption that the Forest Service must be able to
point to a recent change in the law to support the inclusion of an
indemnification provision in this rule because it is ``new and unique''
in the SRNRA is unfounded. The authority dates back to 1897 with the
enactment of the Organic Administration Act. Similar indemnification
provisions are incorporated into several other regulations which
prescribe the terms for various uses of National Forest System lands.
For example, the regulations governing issuance of special use
authorizations for uses such as rights-of-way, ski areas, and
communications facilities contain an indemnification provision (36 CFR
251.56(d)). The regulations governing the leasing and development of
oil and gas resources on National Forest System lands also includes an
indemnification provision (36 CFR 228.110).
The Department does not find the indemnification provision
unconstitutionally vague or overly inclusive. In Village of Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982),
the Supreme Court enumerated a number of factors which affect the
degree of vagueness which the Constitution tolerates. For example, a
less strict vagueness test will apply if a regulation is economic in
nature, does not contain criminal sanctions, and does not implicate
constitutionally protected rights. In United States v. Doremus, 888
F.2d 630 (9th Cir. 1989), the United States Court of Appeals for the
Ninth Circuit rejected a vagueness challenge to a Forest Service
regulation prohibiting certain types of conduct related to mining
activities on National Forest System lands.
This second final rule meets all the factors required by the
Supreme Court ruling. Consequently, there have been no changes made to
the text of the final rule based on this comment.
Comment: The provision authorizing collection of attorneys' fees
and expenses is unlawful. One reviewer asserted that the Department
lacks the statutory authority to include attorneys' fees and expenses
in Sec. 292.70(c) as items for which the Government can be indemnified,
in the event an operator is found to be conducting mineral development
activities in the SRNRA where a plan of operations or operating plan
has not been approved or where the activities are not in compliance
with an approved plan of operations or an approved operating plan.
Response: Although the Department does not agree that the authority
to recover attorneys' fees and expenses does not exist, the final rule
has been modified to eliminate these items from the rule. However, to
the extent independent authority exists to recover attorneys' fees and
expenses under statutes including, but not limited to, the
Comprehensive Environmental Response, Compensation, and Liability Act,
42 U.S.C. 9601 et seq. or the Federal Water Pollution Control Act, 33
U.S.C. 1251 et seq., the Department reserves the right to seek such a
recovery in the event unauthorized mineral operations in the SRNRA
result in violations of one or more of these authorities.
Regulatory Impact
This second final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this regulation is not a significant rule. It will not
have an annual effect of $100 million or more on the economy and will
not adversely affect productivity, competition, jobs, the environment,
public health and safety, or State and local governments.
This second final rule will not interfere with an action taken or
planned by another agency and it will not raise new legal or policy
issues. Finally, this action will not alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients of such programs. In short, little or no
effect on the National economy will result from this second final rule,
since it affects only mining activities on
[[Page 15059]]
National Forest System lands in the SRNRA. Accordingly, this final rule
is not subject to OMB review under Executive Order 12866.
Moreover, this final rule has been considered in light of the
Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq.), and it has been
determined that this action will not have a significant economic impact
on a substantial number of small entities as defined by the RFA because
of its limited scope and application. Also, this second final rule does
not adversely affect competition, employment, investment, productivity,
innovation, or the ability of United States based enterprises to
compete in local or foreign markets.
Environmental Impact
An environmental assessment and a Finding of No Significant Impact
titled ``Regulation of Mineral Operations on National Forest System
Lands within the Smith River National Recreation Area'' have been
prepared and both documents are available upon request by calling the
contact listed earlier in this rulemaking under FOR FURTHER INFORMATION
CONTACT.
Controlling Paperwork Burdens on the Public
The second proposed rule modified a previously approved information
collection to include the requirement that a plan of operations include
additional information identifying hazardous or toxic materials used in
the operation, the mineral wastes that might be generated, and how
public health and safety are to be maintained.
This information collection modification was discussed in the
preamble of the second proposed rule and comment was requested
specifically on the information collection. As discussed in the comment
and response section, the one comment received on the collection stated
that the time for collecting the additional information was not
sufficient. The agency has increased the estimate of burden hours from
2 hours to 20 hours in response to this comment.
The final information collection package for this rulemaking has
been reviewed by the Office of Management and Budget according to the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) and implementing regulations at 5 CFR part 1320. The information
requirements in this rule have been assigned control number 0596-0138
for use through September 30, 1998.
No Takings Implications
In compliance with Executive Order 12630 and the Attorney General's
Guidelines for the Evaluation of Risk and Avoidance of Unanticipated
Takings, the takings implications of the second final rule have been
reviewed and considered. It has been determined that there is no risk
of a taking.
Civil Justice Reform Act
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. Upon adoption of this rule: (1) All State and
local laws and regulations that are in conflict with this final rule or
which would impede its full implementation would be preempted; (2) no
retroactive effect would be given to this final rule and; (3) it would
not require administrative proceedings before parties would file suit
in court challenging its provisions.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the Department has assessed the effects of this rule on state,
local, and tribal governments and the private sector. This rule does
not compel the expenditure of $100 million or more by any State, local,
or tribal governments or anyone in the private sector. Therefore, a
statement under section 202 of the Act is not required.
List of Subjects in 36 CFR Part 292
Administrative practice and procedure, Environmental protection,
Mineral resources, National forests, and National recreation areas.
Therefore, for the reasons set forth in the preamble, part 292 of
Chapter II of Title 36 of the Code of Federal Regulations is amended by
adding a new subpart G to read as follows:
PART 292--NATIONAL RECREATION AREAS
Subpart G--Smith River National Recreation Area
Sec.
292.60 Purpose and scope.
292.61 Definitions.
292.62 Valid existing rights.
Locatable Minerals
292.63 Plan of operations--supplementary requirements.
292.64 Plan of operations--approval.
292.65 Plan of operations--suspension.
Outstanding Mineral Rights
292.66 Operating plan requirements--outstanding mineral rights.
292.67 Operating plan approval--outstanding mineral rights.
Mineral Materials
292.68 Mineral material operations.
Other Provisions
292.69 Concurrent reclamation.
292.70 Indemnification.Subpart G--Smith River National Recreation
Area
Subpart G--Smith River National Recreation Area
Authority: 16 U.S.C. 460bbb et seq.
Sec. 292.60 Purpose and scope.
(a) Purpose. The regulations of this subpart set forth the rules
and procedures by which the Forest Service regulates mineral operations
on National Forest System lands within the Smith River National
Recreation Area as established by Congress in the Smith River National
Recreation Area Act of 1990 (16 U.S.C. 460bbb et seq.).
(b) Scope. The rules of this subpart apply only to mineral
operations on National Forest System lands within the Smith River
National Recreation Area.
(c) Applicability of other rules. The rules of this subpart
supplement existing Forest Service regulations concerning the review,
approval, and administration of mineral operations on National Forest
System lands including, but not limited to, those set forth at parts
228, 251, and 261 of this chapter.
(d) Conflicts. In the event of conflict or inconsistency between
the rules of this subpart and other parts of this chapter, the rules of
this subpart take precedence, to the extent allowable by law.
Sec. 292.61 Definitions.
The special terms used in this subpart have the following meaning:
Act means the Smith River National Recreation Area Act of 1990 (16
U.S.C. 460bbb et seq.).
Authorized officer means the Forest Service officer to whom
authority has been delegated to take actions pursuant to the provisions
of this subpart.
Hazardous material means any hazardous substance, pollutant,
contaminant, hazardous waste, and oil or other petroleum products, as
those terms are defined under any Federal, State, or local law or
regulation.
Outstanding mineral rights means the rights owned by a party other
than the surface owner at the time the surface was conveyed to the
United States.
SRNRA is the abbreviation for the Smith River National Recreation
Area, located within the Six Rivers National Forest, California.
Sec. 292.62 Valid existing rights.
(a) Definition. For the purposes of this subpart, valid existing
rights are defined as follows:
[[Page 15060]]
(1) For certain ``Wild'' River segments. The rights associated with
all mining claims on National Forest System lands within the SRNRA in
``wild'' segments of the Wild and Scenic Smith River, Middle Fork Smith
River, North Fork Smith River, Siskiyou Fork Smith River, South Fork
Smith River, and their designated tributaries, except Peridotite Creek,
Harrington Creek, and the lower 2.5 miles of Myrtle Creek, which:
(i) Were properly located prior to January 19, 1981;
(ii) Were properly maintained thereafter under the applicable law;
(iii) Were supported by a discovery of a valuable mineral deposit
within the meaning of the United States mining laws prior to January
19, 1981, which discovery has been continuously maintained since that
date; and
(iv) Continue to be valid.
(2) For Siskiyou Wilderness. The rights associated with all mining
claims on National Forest System lands within the SRNRA in the Siskiyou
Wilderness except, those within the Gasquet-Orleans Corridor addition
or those rights covered by paragraph (a)(1) of this section which:
(i) Were properly located prior to September 26, 1984;
(ii) Were properly maintained thereafter under the applicable law;
(iii) Were supported by a discovery of a valuable mineral deposit
within the meaning of the United States mining laws prior to September
26, 1984, which discovery has been continuously maintained since that
date; and
(iv) Continue to be valid.
(3) For all other lands. The rights associated with all mining
claims on National Forest System lands in that portion of the SRNRA not
covered by paragraph (a)(1) or (a)(2) of this section which:
(i) Were properly located prior to November 16, 1990;
(ii) Were properly maintained thereafter under the applicable law;
(iii) Were supported by a discovery of a valuable mineral deposit
within the meaning of the United States mining laws prior to November
16, 1990, which discovery has been continuously maintained since that
date; and
(iv) Continue to be valid.
(b) Operations to confirm discovery. The authorized officer shall
authorize those mineral operations that may be necessary for the
purpose of gathering information to confirm or otherwise demonstrate
the discovery of a valuable mineral deposit consistent with the
definition in paragraph (a) of this section or to obtain evidence for a
contest hearing regarding the claim's validity, upon receipt of a
proposed plan of operations as defined in Sec. 292.63 of this subpart
to conduct such operations and of sufficient information from the
operator to show an exposure of valuable minerals on a claim that
predates the withdrawal of the federal land from the operation of the
United States mining laws. The authorized officer shall authorize only
those operations that may be necessary to confirm or demonstrate the
discovery of a valuable mineral deposit prior to the date of withdrawal
of the federal land on which the claim is situated. Pursuant to this
paragraph, the authorized officer shall not authorize any operations
which would constitute prospecting, exploration, or otherwise
uncovering or discovering a valuable mineral deposit.
Locatable Minerals
Sec. 292.63 Plan of operations--supplementary requirements.
(a) Applicability. In addition to the activities for which a plan
of operations is required under Sec. 228.4 of this chapter, a plan of
operations is required when a proposed operation within the SRNRA
involves mechanical or motorized equipment, including a suction dredge
and/or sluice.
(b) Information to support valid existing rights. A proposed plan
of operations within the SRNRA must include at least the following
information on the existence of valid existing rights:
(1) The mining claim recordation serial number assigned by the
Bureau of Land Management;
(2) A copy of the original location notice and conveyance deeds, if
ownership has changed since the date of location;
(3) A copy of affidavits of assessment work or notices of intention
to hold the mining claim since the date of recordation with the Bureau
of Land Management;
(4) Verification by the Bureau of Land Management that the holding
or maintenance fees have been paid or have been exempted;
(5) Sketches or maps showing the location of past and present
mineral workings on the claims and information sufficient to locate and
define the mining claim corners and boundaries on the ground;
(6) An identification of the valuable mineral that has been
discovered;
(7) An identification of the site within the claims where the
deposit has been discovered and exposed;
(8) Information on the quantity and quality of the deposit
including copies of assays or test reports, the width, locations of
veins, the size and extent of any deposit; and
(9) Existing evidence of past and present sales of the valuable
mineral.
(c) Minimum information on proposed operations. In addition to the
requirements of paragraph (b) of this section, a plan of operations
must include the information required at Secs. 228.4 (c)(1) through
(c)(3) of this chapter which includes information about the proponent
and a detailed description of the proposed operation. In addition, if
the operator and claim owner are different, the operator must submit a
copy of the authorization or agreement under which the proposed
operations are to be conducted. A plan of operations must also address
the environmental requirements of Sec. 228.8 of this chapter which
includes reclamation. In addition, a plan of operations also must
include the following:
(1) An identification of the hazardous materials and any other
toxic materials, petroleum products, insecticides, pesticides, and
herbicides that will be used during the mineral operation, and the
proposed means for disposing of such substances;
(2) An identification of the character and composition of the
mineral wastes that will be used or generated and a proposed method or
strategy for their placement, control, isolation, or removal; and
(3) An identification of how public health and safety are to be
maintained.
Sec. 292.64 Plan of operations--approval.
(a) Timeframe for review. Except as provided in paragraph (b) of
Sec. 292.62 of this subpart, upon receipt of a plan of operations, the
authorized officer shall review the information related to valid
existing rights and notify the operator in writing within 60 days of
one of the following situations:
(1) That sufficient information on valid existing rights has been
provided and the anticipated date by which the valid existing rights
determination will be completed, which shall not be more than 2 years
after the date of notification; unless the authorized officer, upon
finding of good cause with written notice and explanation to the
operator, extends the time period for completion of the valid existing
rights determination.
(2) That the operator has failed to provide sufficient information
to review a claim of valid existing rights and, therefore, the
authorized officer has no obligation to evaluate whether the operator
has valid existing rights or to process the operator's proposed plan of
operations.
(b)(1) If the authorized officer concludes that there is not
sufficient
[[Page 15061]]
evidence of valid existing rights, the officer shall so notify the
operator in writing of the reasons for the determination, inform the
operator that the proposed mineral operation cannot be conducted,
advise the operator that the Forest Service will promptly notify the
Bureau of Land Management of the determination and request the
initiation of a mineral contest action against the pertinent mining
claim, and advise the operator that further consideration of the
proposed plan of operations is suspended pending final action by the
Department of the Interior on the operator's claim of valid existing
rights and any final judicial review thereof.
(2) If the authorized officer concludes that there is not
sufficient evidence of valid existing rights, the authorized officer
also shall notify promptly the Bureau of Land Management of the
determination and request the initiation of a mineral contest action
against the pertinent mining claims.
(c) An authorized officer's decision pursuant to paragraph (b) of
this section that there is not sufficient evidence of valid existing
rights is not subject to further agency or Department of Agriculture
review or administrative appeal.
(d) The authorized officer shall notify the operator in writing
that the review of the remainder of the proposed plan will proceed if:
(1) The authorized officer concludes that there is sufficient
evidence of valid existing rights;
(2) Final agency action by the Department of the Interior
determines that the applicable mining claim constitutes a valid
existing right; or
(3) Final judicial review of final agency action by the Department
of the Interior finds that the applicable mining claim constitutes a
valid existing right.
(e) Upon completion of the review of the plan of operations, the
authorized officer shall ensure that the minimum information required
by Sec. 292.63(c) of this subpart has been addressed and, pursuant to
Sec. 228.5(a) of this chapter, notify the operator in writing whether
or not the plan of operations is approved.
(f) If the plan of operations is not approved, the authorized
officer shall explain in writing why the plan of operations cannot be
approved.
(g) If the plan of operations is approved, the authorized officer
shall establish a time period for the proposed operations which shall
be for the minimum amount of time reasonably necessary for a prudent
operator to complete the mineral development activities covered by the
approved plan of operations.
(h) An approved plan of operations is subject to review and
modification as follows:
(1) To bring the plan into conformance with changes in applicable
federal law or regulation; or
(2) To respond to new information not available at the time the
authorized officer approved the plan, for example, new listings of
threatened or endangered species; or
(3) To correct errors or omissions made at the time the plan was
approved, for example, to ensure compliance with applicable federal law
or regulation; or
(4) To permit operations requested by the operator that differ in
type, scope, or duration from those in an approved plan of operations
but that are not subject to paragraph (i) of this section.
(i) If an operator desires to conduct operations that differ in
type, scope, or duration from those in an approved plan of operations,
and if those changes will result in resource impacts not anticipated
when the original plan was approved, the operator must submit a
supplemental plan or a modification of the plan for review and
approval.
Sec. 292.65 Plan of operations--suspension.
(a) The authorized officer may suspend mineral operations due to an
operator's noncompliance with applicable statutes, regulations, or
terms and conditions of the approved plan of operations.
(1) In those cases that present a threat of imminent harm to public
health, safety, or the environment, or where such harm is already
occurring, the authorized officer may take immediate action to stop the
threat or damage without prior notice. In such case, written notice and
explanation of the action taken shall be given the operator as soon as
reasonably practicable following the suspension.
(2) In those cases that do not present a threat of imminent harm to
public health, safety, or the environment, the authorized officer must
first notify the operator in writing of the basis for the suspension
and provide the operator with reasonably sufficient time to respond to
the notice of the authorized officer or to bring the mineral operations
into conformance with applicable laws, regulations, or the terms and
conditions of the approved plan of operations.
(b) Except as otherwise provided in this section, the authorized
officer shall notify the operator not less than 30 days prior to the
date of the proposed suspension.
Outstanding Mineral Rights
Sec. 292.66 Operating plan requirements--outstanding mineral rights.
(a) Proposals for mineral operations involving outstanding mineral
rights within the SRNRA must be documented in an operating plan and
submitted in writing to the authorized officer.
(b) An operating plan for operations involving outstanding mineral
rights within the SRNRA must include the following:
(1) The name and legal mailing address of the operator, owner, and
any lessees, assigns, and designees;
(2) A copy of the deed or other legal instrument that conveyed the
outstanding mineral rights;
(3) Sketches or maps showing the location of the outstanding
mineral rights, the proposed area of operations, including, but not
limited to, existing and/or proposed roads or access routes identified
for use, any new proposed road construction, and the approximate
location and size of the areas to be disturbed, including existing or
proposed structures, facilities, and other improvements to be used;
(4) A description of the type of operations which includes, at a
minimum, a list of the type, size, location, and number of structures,
facilities, and other improvements to be used;
(5) An identification of the hazardous materials and any other
toxic materials, petroleum products, insecticides, pesticides, and
herbicides that will be used during the mineral operation and the
proposed means for disposing of such substances;
(6) An identification of the character and composition of the
mineral wastes that will be used or generated and a proposed method or
strategy for their placement, control, isolation, remediation, or
removal; and
(7) A reclamation plan to reduce or control on-site and off-site
damage to natural resources resulting from mineral operations. The plan
must:
(i) Provide reclamation to the extent practicable;
(ii) Show how public health and safety are maintained;
(iii) Identify and describe reclamation measures to include, but
not limited to, the following:
(A) Reduction and/or control of erosion, landslides, and water
runoff;
(B) Rehabilitation of wildlife and fisheries habitat to be
disturbed by the proposed mineral operation; and
(C) Protection of water quality.
(iv) Demonstrate how the area of surface disturbance will be
reclaimed to a condition or use that is consistent
[[Page 15062]]
with the Six Rivers National Forest Land and Resource Management Plan.
Sec. 292.67 Operating plan approval--outstanding mineral rights.
(a) Upon receipt of an operating plan, the authorized officer must
review the information related to the ownership of the outstanding
mineral rights and notify the operator that:
(1) Sufficient information on ownership of the outstanding mineral
rights has been provided; or
(2) Sufficient information on ownership of outstanding mineral
rights has not been provided, including an explanation of the specific
information that still needs to be provided, and that no further action
on the plan of operations will be taken until the authorized officer's
receipt of the specified information.
(b) If the review shows outstanding mineral rights have not been
verified, the authorized officer must notify the operator in writing
that outstanding mineral rights have not been verified, explain the
reasons for such a finding, and that the proposed mineral operation
cannot be conducted.
(c) If the review shows that outstanding mineral rights have been
verified, the authorized officer must notify the operator in writing
that outstanding mineral rights have been verified and that review of
the proposed operating plan will proceed.
(d) The authorized officer shall review the operating plan to
determine if all of the following criteria are met:
(1) The operating plan is consistent with the rights granted by the
deed;
(2) The operating plan is consistent with the Six Rivers National
Forest Land and Resource Management Plan; and
(3) The operating plan uses only so much of the surface as is
necessary for the proposed mineral operations.
(e) Upon completion of the review of the operating plan, the
authorized officer shall notify the operator in writing of one of the
following:
(1) The operating plan meets all of the criteria of paragraphs
(d)(1) through (d)(3) of this section and, therefore, is approved;
(2) The operating plan does not meet one or more of the criteria in
paragraphs (d)(1) through (d)(3) of this section. Where feasible, the
authorized officer may indicate changes to the operating plan that
would satisfy the criteria in paragraphs (d)(1) through (d)(3) of this
section and, thus, if accepted by the operator, would result in
approval of the operating plan.
(f) To conduct mineral operations beyond those described in an
approved operating plan, the owner or lessee must submit, in writing,
an amended operating plan to the authorized officer at the earliest
practicable date. New operations covered by the proposed amendment may
not begin until the authorized officer has reviewed and responded in
writing to the proposed amendment. The authorized officer shall review
a proposed amendment of an approved operating plan to determine that
the criteria in paragraphs (d)(1) through (d)(3) of this section are
met.
Mineral Materials
Sec. 292.68 Mineral material operations.
Subject to the provisions of part 228, subpart C, and part 293 of
this chapter, the authorized officer may approve contracts and permits
for the sale or other disposal of mineral materials, including but not
limited to, common varieties of gravel, sand, or stone. However, such
contracts and permits may be approved only if the material is not
within a designated wilderness area and is to be used for the
construction and maintenance of roads and other facilities within the
SRNRA or the four excluded areas identified by the Act.
Other Provisions
Sec. 292.69 Concurrent reclamation.
Plans of operations involving locatable minerals, operating plans
involving outstanding mineral rights, and contracts or permits for
mineral materials should all provide, to the maximum extent
practicable, that reclamation proceed concurrently with the mineral
operation.
Sec. 292.70 Indemnification.
The owner and/or operator of mining claims and the owner and/or
lessee of outstanding mineral rights are jointly and severally liable
in accordance with Federal and State laws for indemnifying the United
States for the following:
(a) Costs, damages, claims, liabilities, judgments, injury and
loss, including those incurred from fire suppression efforts, and
environmental response actions and cleanup and abatement costs incurred
by the United States and arising from past, present, and future acts or
omissions of the owner, operator, or lessee in connection with the use
and occupancy of the unpatented mining claim and/or mineral operation.
This includes acts or omissions covered by Federal, State, and local
pollution control and environmental statutes and regulations.
(b) Payments made by the United States in satisfaction of claims,
demands, or judgments for an injury, loss, damage, or costs, including
for fire suppression and environmental response action and cleanup and
abatement costs, which result from past, present, and future acts or
omissions of the owner, operator, or lessee in connection with the use
and occupancy of the unpatented mining claim and/or mineral operations.
(c) Costs incurred by the United States for any action resulting
from noncompliance with an approved plan of operations or activities
outside an approved operating plan.
Dated: March 12, 1998.
Brian Eliot Burke,
Deputy Under Secretary, NRE.
[FR Doc. 98-7924 Filed 3-26-98; 8:45 am]
BILLING CODE 3410-11-P
