[Federal Register Volume 61, Number 65 (Wednesday, April 3, 1996)]
[Rules and Regulations]
[Pages 14621-14634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8097]
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DEPARTMENT OF AGRICULTURE
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
Recreational Area was established.
EFFECTIVE DATE: This rule is effective April 3, 1996.
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
Secretary to manage the SRNRA to provide for a broad range of
recreational uses and to improve fisheries and water quality. The Act
prohibits mining, subject to valid existing rights and limits
extraction of mineral materials to situations where the material
extracted is used for construction and maintenance of roads and other
facilities within the SRNRA and in certain areas specifically 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. One of these eight
areas is the Siskiyou Wilderness, most of which was designated by
Congress in 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.
The Act also designates the Smith River, the Middle Fork of the
Smith River, the North Fork of the Smith River, the Siskiyou Fork of
the Smith River, and the South Fork of the Smith River as components of
the National Wild and Scenic Rivers System and stipulates that they be
managed in accordance with the Act and the Wild and Scenic Rivers Act.
In the event of a conflict between the provisions of these two
statutes, the Act specifies that provisions of the most restrictive
statute apply. Finally, the Act expressly excludes four areas that lie
within the boundary of the SRNRA from compliance with provisions of the
Act.
Mining and prospecting for minerals have been an important part 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. In 1990, there were approximately 5,000 mining claims
covering about 30,000 acres of National Forest System lands within the
SRNRA. By 1995, however, there were only approximately 320 mining
claims covering about 8,000 acres of National Forest System lands in
the SRNRA that met current Bureau of Land Management filing
requirements. In
[[Page 14622]]
contrast to the large number of claims, actual operations were
conducted on only three claims under approved plans of operations in
1995. In addition, there are outstanding mineral rights within the
SRNRA.
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 leasing,
and geothermal leasing laws subject to valid existing rights. Section
8(b) precludes the issuance of patents for locations and claims made
prior to the establishment of the SRNRA. Section 8(c) of the Act
prohibits all mineral operations within the SRNRA except where valid
existing rights are established. Section 8(c) also prohibits the
extraction of mineral materials such as 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 is to promulgate supplementary regulations
to promote and protect the purposes for which the SRNRA was designated.
On or about 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 Corporation v. Epsy, No. C94-
3904 DLJ (N.D. Cal.). Specifically, the suit alleged that the
Department was in violation of the Act by not promulgating regulations
for mineral operations in the SRNRA as required under Section 8(d). The
Forest Service did not dispute that Section 8(d) of the Act required
the promulgation of supplementary regulations for the SRNRA and had, in
fact, made some preliminary progress in developing a regulation prior
to the initiation of this litigation. The case is still pending and the
agency anticipates its dismissal shortly after the publication of the
final rule.
On June 23, 1995, the Forest Service published a proposed rule for
notice and comment in the Federal Register which contained
supplementary regulations for mineral activities on National Forest
System lands in the SRNRA pursuant to Section 8(d) of the Act (60 FR
32633). Seven letters expressing a variety of viewpoints were received
during the 60-day comment period which expired on August 22, 1995.
These letters were from a mining company, several individual
prospectors, an environmental organization, a local resident, and
another interested party. 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 articulating their views on
concerns with the proposed rule.
Analysis of Public Comment
Comments on the proposed rule dealt with general issues such as
terminology, noncommercial recreational mineral collecting, civil
rights, property rights, and constitutional protections related to such
rights. In addition, there were several issues raised in the comments
that dealt with specific provisions of the proposed rule. A summary of
the comments and the Department's responses to them follows.
General Comments
1. Omission of the word ``resources'' as used in the Act from the
Supplementary Information. One reviewer noted that the supplementary
information provided in the proposed rule omitted the word
``resources'' from the section of the Act in which Congress articulated
the purpose for which the SRNRA was established. The reviewer believed
the omission was significant because it was not clear that a companion
goal of preservation, protection, enhancement, and interpretation of
the SRNRA is to provide for the wise use and sustained productivity of
the SRNRA's natural resources.
Response: The stated purpose of the Act did include the word
``resources'' as this reviewer noted. The omission of this word from
the preamble of the proposed rule was inadvertent, and the complete
excerpt from Section 4 of the Act, including the word ``resources,''
has been set forth in the preceding ``Background'' section of this
final rule.
2. Disparity between proposed rule and Six Rivers LRMP on the
number of current mining claims in the SRNRA. One reviewer noted that
the supplementary information section of the proposed rule stated that
approximately 5,000 mining claims currently existed in the SRNRA, but
that the June 1995 Final Environmental Impact Statement (FEIS) for the
Six Rivers National Forest Land and Resource Management Plan (LRMP)
identified only 300 current mining claims. The reviewer requested
clarification as to which of these figures is accurate.
Response: The information in the FEIS for the Six Rivers National
Forest LRMP is correct. As of November 23, 1995, approximately 300
mining claims in the SRNRA met Bureau of Land Management filing
requirements. This is a significant reduction from the approximately
5,000 mining claims that existed in the SRNRA in 1990 and this
reduction was not reflected in the preamble to the proposed rule.
However, it has been corrected in the ``Background'' section of this
final rulemaking.
3. Lack of any new substantive standards in addition to those in
the current Forest Service mineral regulations. One reviewer observed
that the proposed rule set forth no additional substantive standards
for environmental protection beyond those set forth in 36 CFR part 228,
subpart A, and requested that if additional substantive standards are
subsequently added, they be articulated with greater clarity.
Response: The Department eschews attempts to characterize the
standards in the proposed rule as ``substantive'' or ``procedural''
because such labels are fraught with subjectivity, and no useful
purpose will be served by specifying whether the standards in the
proposed rule are substantive or procedural.
4. Characterization of nickel-cobalt resources as ``low grade.''
One reviewer objected to the characterization of the nickle-cobalt
resources in the uplands of the Smith River watershed as ``low-grade''
to the extend 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 corporation
holding most of the claims in the portion of 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.
5. Need for supplementary regulations for mineral operations to
protect SRNRA. One reviewer stated that there is no need for additional
regulations of mineral operations in the SRNRA since the existing
regulations governing these
[[Page 14623]]
activities provide ample protection to the SRNRA and its resources.
Response: The issue of whether additional regulation of mineral
operations is necessary in the SRNRA 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 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.
6. Duplication of current mining law and Bureau of Land Management
and California Fish and Game Department regulations. One reviewer felt
that the proposed rule is duplicative of current mining law and BLM and
California Department of Fish and Game regulations. Although the
reviewer made no specific recommendation based on this observation, the
agency has construed it as a suggestion that the supplementary
regulations for mineral operations in the SRNRA are unnecessary.
Response: As noted in the previous response, it is not within the
Department's prerogative to determine whether supplementary regulations
for mineral operations in the SRNRA are necessary if Congress
specifically directs the agency to promulgate them. Furthermore,
although the reviewer failed to identify which laws or BLM or
California Department of Fish and Game regulations were duplicative of
the proposed rule, the Department does not believe that such
duplication exists.
7. Applicability of rule to all uses in the SRNRA, not just mineral
operations. One reviewer noted that the provisions of the Act directing
the Forest Service to promulgate regulations were not limited to
mining. Therefore, the reviewer concludes that the agency should have
expanded the subject matter of the proposed rule to address all uses
occurring in the SRNRA.
Response: The reviewer correctly notes that Section 8(d) of the Act
makes no specific reference to mineral operations in the SRNRA as the
subject of the supplementary regulations. However, Section 8 is
entitled ``Minerals'' and subsections (a), (b), and (c) all involve the
administration of minerals and mining activities in the SRNRA. It is,
therefore, reasonable for the agency to infer that the specific subject
matter of the regulations required by Section 8(d) of the Act involves
mineral operations in the SRNRA.
This inference is supported by the Act's legislative history. Early
versions of the legislation to establish an SRNRA contained an outright
prohibition on all mining activities in the SRNRA. Due to concerns
associated with the cost entailed by a blanket prohibition, the
legislation was subsequently amended as it moved through the
legislative process, to prohibit only those mining activities in the
SRNRA where valid existing rights had not been established as of the
date of enactment of the Act. Where valid existing rights had been
established, the legislation authorized the continuation of mineral
development activities, provided that these activities would be subject
to supplementary regulations designed to ensure the protection of the
resource values for which the SRNRA was designated. One of the
principal sponsors of the SRNRA legislation explained:
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).
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 this rule to
address other activities occurring within the SRNRA.
8. Improper withdrawal procedures after enactment of the Act. One
reviewer felt that certain procedures for the withdrawal of federal
lands from the operation of federal mining laws were not complied with
in the SRNRA following the enactment of the Act. According to this
reviewer, in order to legally withdraw an area, the Bureau of Mines
must evaluate existing mining claims and estimate the mineral value of
the area. Claim holders who disagree with the findings of the Bureau of
Mines should be allowed to appeal these findings and conduct their own
discovery on appeal. This reviewer concluded that claim holders in the
SRNRA should be allowed to perform additional discovery before
submitting their plans of operation and proof of discovery, since this
withdrawal procedure was not followed.
Response: Section 8 of the Act expressly withdrew all federal lands
within the SRNRA from the operation of the mining law subject to valid
existing rights. Therefore, no additional procedures must be followed
by any federal agency to effectuate this withdrawal.
9. Limiting operations to 5 months per year. One reviewer contends
that the proposed rule unreasonably restricts operations in the SRNRA
to not more than five months a year and thus prevents operators from
making a living.
Response: There was no provision in the proposed rule which imposed
a limit on the maximum number of months during which mineral operations
could be conducted in the SRNRA, nor is there such a provision in the
final rule.
10. Exorbitant bonding. One reviewer contended that the requirement
for a plan of operations includes exorbitant bonding which would
effectively eliminate the prudent operator/claimant from mining.
Response: There was no provision in the proposed rule which
established a bonding requirement. The only applicable bonding
provisions for mineral operations in the SRNRA are those already set
forth in the agency's general mining regulations at 36 CFR 228.13,
which of course, do apply to mining operations in the SRNRA.
11. Exemption of ``recreational mining''. Three reviewers noted
that the proposed rule did not distinguish between individuals who
engage in mineral development activities for recreational reasons as
opposed to those who engage in such activities for business purposes.
These reviewers objected to any attempt to prohibit or regulate
``recreational'' mineral development activities in the SRNRA based
upon, among other things, the history of this type of activity in the
SRNRA and the value in preserving and interpreting it, the Act's
recognition of a broad range of recreation uses in the SRNRA,
representations made by government officials during deliberations of
SRNRA legislation that such ``recreational'' activities would be
unaffected by the passage of the Act, and the fact that permission has
been granted for similar activities on the Rogue River National
Recreation Area.
Response: The reviewers correctly observed that the proposed rule
did not distinguish between mineral development activities engaged in
for pleasure as opposed to mineral development activities engaged in
for profit. The reason the proposed rule did not make such a
distinction is, simply stated, that the applicable law does not allow
for it. Under the United States mining laws, federal land is either
open to mineral entry or it is withdrawn from such entry. Therefore,
once an area like
[[Page 14624]]
the SRNRA is withdrawn from the operation of the mining laws subject to
valid existing rights, the Department has no authority to allow for the
continuation of mineral development activities, unless the Forest
Service can verify that valid existing rights have been established.
This applies even if the individual is mining for personal enjoyment
rather than financial gain and even if the impact on the lands and
resources of the SRNRA is minimal.
With respect to the reviewers' observations in support of a
continuation of ``recreational'' mineral collecting activities in the
SRNRA, the following should be noted. First, the historical
significance of ``recreational'' mineral activities in the SRNRA cannot
controvert the mining laws of the United States or the Act's express
prohibitions against mining. Second, if government officials made
representations that legislation to designate the SRNRA would not
effect this activity, such statements cannot controvert the unambiguous
prohibitions in the Act. If Congress intended to create an exception
for the SRNRA for noncommercial mineral collecting activities, it could
have included such a provision in the Act. Third, Section 2 of the Act
lists wilderness, water sports, fishing, hunting, camping, and
sightseeing as examples of specific recreational pursuits that already
occur in the SRNRA and for which the area was designated. While it is
not exhaustive, the list in Section 2 of the Act is instructive in its
omission of mining, sluicing, and panning from the other, more
traditional types of recreational activities. Fourth and finally, there
is no Rouge River National Recreation Area. There is, however, a Rouge
Wild and Scenic River that was designated in 1968 and is administered
under the Wild and Scenic Rivers Act. A withdrawal provision similar to
Section 8 of the Act is contained in Section 9(a)(iii) of the Wild and
Scenic Rivers Act and applies only to those federal lands within
segments of the Rogue River Wild and Scenic River classified as
``wild.'' Federal lands within segments of the Rogue River Wild and
Scenic River classified as ``scenic'' or ``recreational'' are not
subject to this provision of the Wild and Scenic Rivers Act and hence
it may be permissible to engage in this type of activity in these
areas.
In summary, the only mineral development activities that may occur
in the SRNRA are those for which valid existing rights have been
established or have been authorized by a mineral materials contract or
permit. Neither the subjective intent of the individual nor the impact
of the activity may be used to justify mineral development activities,
in the absence of valid existing rights or a mineral materials contract
or permit.
12. Length of the proposed rule. One reviewer stated that the
length of the proposed regulations, 30 pages--twice the length of the
15-page Act, was excessive.
Response: The proposed rule as printed in the Federal Register was
only seven pages long, and of those seven pages, only three contained
proposed regulatory text; the balance was background and explanatory
materials. The agency does not consider the length of this regulation
to be excessive.
13. Allowing patenting of claims. One reviewer contended that there
is no bona fide reason to preclude the issuance of patents in the SRNRA
in light of the existing regulations which adequately protect the area.
Response: The proposed rule did not deal with the issuance of
patents. That matter was definitively resolved in Sections 8(a) and (b)
of the Act which withdrew the SRNRA from patenting under the mining
laws and prohibited patenting under the mining laws for locations and
claims made before the date of enactment of the Act. This rule cannot
authorize the issuance of patents in contravention of the Act.
14. Prohibitions of all mining activities on ``high ground''. One
reviewer stated that the proposed rule would accommodate only ``water
mining'' in the SRNRA and would prohibit ``high ground mining''
everywhere else. This reviewer further stated that such a prohibition
would affectively confiscate 94% of the area currently available to
this reviewer for mining operations.
Response: There was no mention of ``water mining'' or ``high ground
mining'' classifications in the proposed rule and hence there was no
prohibition against such activities per se. The only prohibition
against mineral operations addressed in the Act is when the operator is
unable to establish valid existing rights as of the date of enactment
of the Act. This prohibition was merely reiterated in the proposed rule
and is retained in the final rule.
15. Recognition of an existing large-scale mining operation as an
appropriate activity within the SRNRA. One reviewer, the largest
claimholder in the SRNRA, stated that the proposed rule should
recognize its large-scale mining operation as an appropriate activity
within the SRNRA.
Response: Although it is unclear what the reviewer meant by
recognition as an ``appropriate activity,'' it would be entirely
arbitrary for the Forest Service to single out the mining operations of
one company for special treatment of any kind. There is nothing in the
Act to suggest that Congress intended the Forest Service to evaluate
mining operations in the SRNRA differently depending on the party who
may hold the valid existing rights. As noted above, the SRNRA was
established for the purpose of ``ensuring 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.''
These supplementary regulations are intended to ensure that all
mining operations in the SRNRA, not just some of them, are carried out
in conformance with the Act and in such a way as to preserve, protect,
and enhance the values for which the SRNRA was designated.
16. Applicability of California's Surface Mining and Reclamation
Act to mining on SRNRA lands. One reviewer recommended that the rule
should specifically make reference to the applicability of California's
Surface Mining and Reclamation Act (SMARA) to federal lands in the
SRNRA based on a 1992 Memorandum of Understanding (1992 MOU) executed
by and between the State of California, the Department of the Interior,
and the Department of Agriculture. This reviewer also suggested that
the rule should specify that the Forest Service would assume financial
and administrative responsibility for the implementation of SMARA if
the County of Del Norte fails to properly discharge its duties under
this statute.
Response: It is unnecessary to include a provision in this rule
which singles out the applicability of the California Act to mining
operations in the SRNRA. The rule already provides that mineral
operations in the SRNRA are subject to all applicable laws,
regulations, policies, and procedures governing these activities on
National Forest System Lands. The 1992 MOU is merely one of the
``policies and procedures'' currently governing the administration of
mining operations in the SRNRA. Consequently, it is unnecessary to
include a separate provision in this rule which includes a specific
reference to the California Act.
The agency also declines to include a provision in the rule under
which it would assume the administrative and financial obligations of
Del Norte
[[Page 14625]]
County, if the county is unable to carry out its responsibilities under
the State surface mining statute. Such a commitment of Forest Service
staff and financial resources without assurance of Federal funds for
such purposes would be in violation of the Anti-Deficiency Act, 31
U.S.C. 1341. This Act prohibits federal agencies from ``mak[ing] or
authoriz[ing] an expenditure or obligation exceeding an amount
available in an appropriation or fund for the expenditure or
obligation.''
17. Civil Rights Impact Analysis. One reviewer felt that the agency
was required by Chapter 30 of Forest Service Handbook 1709.11 to
complete a Civil Rights Impact Analysis, since he believes that this is
a major action involving quite a number of concerned citizens.
Response: Pursuant to Departmental Regulation (DR 4300-4) a Civil
Rights Impact Analysis is required only for major policy actions when
the consequences of those actions ``will negatively and
disproportionately affect minorities''. This rulemaking is determined
not to have an adverse or disproportionate effect on minorities.
18. Compliance with NEPA in developing the regulations. One
reviewer felt that the agency failed to comply with the National
Environmental Policy Act (NEPA) and should have prepared an
environmental impact statement (EIS) to verify the need for the
proposed regulation.
Response: Environmental impact statements are prepared where there
may be significant effects resulting from the proposed action. Service-
wide procedural regulations will not cause significant environmental
effects and generally can be categorically excluded from documentation
in an EIS or environmental assessment except where there are
extraordinary circumstances (Forest Service NEPA procedures at FSH
1909.15, Ch. 30, 57 FR 43180 (Sept. 18, 1992)). After further
consideration, the Forest Service has determined that the
geographically specific nature of the Smith River NRA regulations
cannot be considered applicable Service-wide and thus are not subject
to a categorical exclusion. Accordingly, an Environmental Assessment
and Finding of No Significant Impact have been prepared on this final
rule.
19. Intent to harass miners and deter mining operations in the
SRNRA. One reviewer asserted that the agency would use the rule to
harass miners and deter mining by burdening claimants with unnecessary
and expensive procedures and that this is the real intent of the rule,
rather than environmental protection.
Response: The Forest Service respects every individual's right to
his or her opinion, but it categorically rejects any assertion that the
purpose of this rule is to harass miners or deter legitimate mining
operations where operators have established valid existing rights. As
stated at the outset, the purpose of this rule is to develop standards
for mining operations in the SRNRA that will ensure that the fishery,
scenic, and other values for which the area was designated will be
protected and enhanced in perpetuity.
20. Taking of private property without just compensation. One
reviewer disagreed with the statement in the proposed rule that the
proposed rule does not have a takings implication. Another reviewer
contended that the withdrawal of federal lands from the operation of
the mining laws effected a taking.
Response: The Fifth Amendment states in part ``. . . nor shall
private property be taken for public use without just compensation.''
Executive Order 12630 requires the agency to evaluate proposed agency
actions to determine whether it presents the risk of a taking. The
proposed rule explained that the Forest Service had concluded that the
promulgation of this regulation did not present a takings risk.
One reviewer disputed the Forest Service's conclusion and, in
essence, contended that the mere promulgation of this rule has taken
his property without compensation and thus affected a taking. The
Supreme Court has held that in order for the promulgation of a
regulation to effect a taking, the property owner must demonstrate that
the regulation on its face, rather than as applied, prevents the
economically viable use of a compensable property interest. In this
instance, the rule itself does not preclude economically viable use of
mining claims in the SRNRA where valid existing rights have been
established. Rather, it merely requires the operator to conform his
operations to certain standards. None of these standards, individually
or collectively, would deprive an operator of the economically viable
use of his or her valid existing rights.
The other reviewer is incorrect in his assertion that the mere
withdrawal of federal lands in the SRNRA from the operation of the
mining laws effected a taking. Because the withdrawal language in the
Act specifically stated that it was subject to valid existing rights,
no taking of private property interests was effected by this measure.
The withdrawal merely reflected Congress' decision to prohibit the use
of National Forest System lands in the SRNRA for mining purposes. In
other words, except where an operator can establish valid existing
rights, mining is no longer one of the uses for which the National
Forest System lands in the SRNRA will be managed. Congress' authority
to prescribe the management of federal lands is derived from the
Property Clause of the United States Constitution, Art. IV, Section 3,
cl. 2, which vests in it the power to ``dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States.'' The Property Clause has been
construed expansively. The Supreme Court has on more than one occasion
stated that ``. . . the power over the public land thus entrusted to
Congress [under the Property Clause] is without limitations.''
In this case, the withdrawal of federal land in the SRNRA from the
operation of the mining laws subject to valid existing rights is merely
an example of Congress exercising its authority under the Property
Clause to prescribe how the federal land in the SRNRA will be
administered. This provision cannot effect a taking because no private
property interests were impacted by the withdrawal.
Specific Comments on Proposed Subpart G of 36 CFR Part 292
The following is a discussion of comments that were received
pertaining to specific sections of the proposed rule and the resulting
changes that have been made in the final rule. The final rule contains
only two minor changes from the text of the proposed rule. The first is
a modification of the date in the definition of ``valid existing
rights'' to reflect the different dates that the Smith Wild and Scenic
River, the Siskiyou Wilderness, and the SRNRA were established. Because
federal lands within these three areas were withdrawn from the
operation of the mining and mineral leasing laws at different times,
the dates by which valid existing rights must be established are
different. The second change corrects an improper citation to 36 CFR
228.5(a) in Sec. 292.63(d). Both of these changes are addressed in more
detail in the section-by-section analysis that follows.
No comments were received on Sec. 292.60--Purpose and Scope,
Sec. 292.65--Operating Plan Requirements, Sec. 292.66--Operating Plan
Acceptance, and Sec. 292.67--Mineral Material Operations. Consequently,
the final rule adopts the text of these sections as proposed, and they
are not discussed further in this analysis.
[[Page 14626]]
Section 292.61. Definitions
The proposed rule defined certain terms that are either not defined
in 36 CFR part 228, subpart A, or have special meaning as used in this
rule.
Comment: The ``operating plan'' definition is erroneously applied.
One reviewer contended that the definition of ``operating plan'' was
erroneously confined to the exercise of outstanding mineral rights.
Response: The term ``operating plan,'' as defined in this section
is used only in those portions of the rule dealing with outstanding
mineral rights (Secs. 292.65 and 292.66 and portions of Sec. 292.68).
The term ``plan of operations'' is used only in those portions of the
rule dealing with operations on claims where valid existing rights have
been established (Secs. 292.62, 292.63, and 292.64 and portions of
Sec. 292.68). These two terms were purposely used in the proposed rule
to differentiate operations on mining claims with valid existing rights
from operations on lands with outstanding mineral rights. Moreover, the
use of the terms ``operating plan'' and ``plan of operations'' in the
proposed rule is consistent with the terminology in the agency's mining
regulations at 36 CFR part 228, subpart A, and in the agency's
directive system. Accordingly, no changes have been made in the final
rule in response to this comment.
Comment: The Forest Service is without authority to alter the
General Mining Laws in defining valid existing rights. One reviewer
agreed with the definition of valid existing rights to the extent that
it merely requires that the claimant have had a valid mining claim
pursuant to the General Mining Laws as of the date of passage of the
Act and has not abandoned it or otherwise failed to make appropriate
filings and pay the annual maintenance fees. The reviewer objected,
however, to other aspects of the definition which the reviewer alleged
would alter the General Mining Laws. In particular, the reviewer
contended that paragraph (4) of the definition of ``valid existing
rights'' in the proposed rule which required continuity of the valuable
mineral deposit even after the date of withdrawal is impermissible
under the General Mining Laws.
This reviewer recommended that the definition of ``valid existing
rights'' be revised and confined to the ``technical aspects'' of
maintaining a claim's validity following the withdrawal of the SRNRA.
This reviewer felt that the definition should not include within its
scope any evaluation of the claim with respect to discovery of a
valuable mineral as of the date of determination of valid existing
rights.
Response: As an initial matter, it should be noted that there is no
definition of ``valid existing rights'' in the General Mining Laws. The
definition of ``valid existing rights'' (to the extent one exists), is
largely the product of judicial and administrative interpretations of
the General Mining Laws. The definition of ``valid existing rights'' in
this rule is fully consistent with the General Mining Laws, relevant
case law, and administrative interpretations. These authorities have
long held that in order to establish valid existing rights, a mining
claim must include the discovery and location of a valuable mineral
deposit at the time of a withdrawal. In addition, these authorities
have also held that in order to retain valid existing rights, an
operator must comply with certain filing requirements, pay nominal
fees, and the mineral deposit must remain valuable. The exhaustion of a
mineral deposit or loss of its marketability may lead to a finding that
the operator no longer possesses valid existing rights. Since the Act
withdraws all federal lands from the operation of the general mining
laws subject to valid existing rights, it is not within the agency's
discretion to authorize mineral operations within the SRNRA if the
operator can no longer prove that he or she possesses valid existing
rights.
Comment: The date by which valid existing rights must be
established for claims in the Siskiyou Wilderness and wild segments of
the Smith Wild and Scenic Rivers is different from the date by which
valid existing rights must be established for claims in the rest of the
SRNRA.
Response: The proposed rule's definition of ``valid existing
rights'' required operators to establish a valid mining claim in the
SRNRA as of November 16, 1990. This is the date on which (1) The Act
became law and (2) the federal land within the SRNRA was withdrawn from
the operation of the mining and mineral leasing laws. The respondent is
correct that this date is not accurate when applied to claims in wild
segments of the Smith Wild and Scenic River and the Siskiyou
Wilderness.
In considering this comment, the Department recognized that the
proposed rule failed to take into account that some of the federal land
within the SRNRA was withdrawn from the operation of the mining and
mineral leasing laws prior to the enactment of the Act and that the
establishment of valid existing rights varies depending on the date
that the land was withdrawn. Both the Smith Wild and Scenic River
(including the Middle Fork, North Fork, and South Fork and tributaries
thereto) and the Siskiyou Wilderness are located within the SRNRA, but
their designations predate the designation of the SRNRA. The Smith Wild
and Scenic River was designated on January 19, 1981 and the Siskiyou
Wilderness was designated on September 28, 1984. At the time of these
designations, federal lands within wild segments of the Smith Wild and
Scenic River and the Siskiyou Wilderness were withdrawn from the
operation of the mining and mineral leasing laws. Consequently, in
order to establish valid existing rights in wild segments of the Smith
Wild and Scenic River or the Siskiyou Wilderness, the operator must
demonstrate that there was a valid claim at the time of the designation
of these areas, not at the time of the designation of the SRNRA.
One final point of clarification regarding the Siskiyou Wilderness
is necessary. Though originally established on September 28, 1984, the
Act added the Gasquet-Orleans Corridor to the Siskiyou Wilderness on
November 16, 1990. Consequently, in order to determine whether valid
existing rights have been established within the Gasquet-Orleans
Corridor of the Siskiyou Wilderness, the operative date remains
November 16, 1990.
In the final rule, the definition has been modified to reflect that
the dates by which valid existing rights must be established for claims
in the SRNRA will vary depending on where the claim is located. For
claims on wild segments of the Smith Wild and Scenic River, valid
existing rights must be established as of January 19, 1981. For claims
in the Siskiyou Wilderness (minus the Gasquet-Orleans Corridor
addition), valid existing rights must be established as of September
28, 1984. Finally, for claims in the rest of the SRNRA including, but
not limited to, ``scenic'' and ``recreational'' segments of the Smith
Wild and Scenic River and the Gasquet-Orleans Corridor addition to the
Siskiyou Wilderness, the final rule makes clear that valid existing
rights must be established as of November 16, 1990.
Section 292.62, Plan of Operations Supplementary Requirements
The proposed rule specified when a plan of operations is required
for activities within the SRNRA and included suction dredge operations.
Paragraph (b) of this proposed section would require as part of the
plan of operations information necessary to evaluate the operator's
claim of valid
[[Page 14627]]
existing rights and information necessary to evaluate the impacts of
the proposed mining operation on SRNRA resources and determine the
appropriate standards to mitigate and reclaim the affected areas.
Comment: Additional regulations and plans of operations should not
be required for suction dredging. One reviewer contends that subsurface
suction dredging should not be subject to these regulations or require
the preparation of a plan of operations, as the activity is already
well regulated and even benefits the SRNRA.
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. For the 1995 operating
season, two plans of operations for suction dredging in the SRNRA were
received, and both were approved. 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. As noted previously, in establishing the SRNRA, Congress
specified that all mineral operations, including suction dredging, are
prohibited subject to valid existing rights. Further, even in those
instances where an operator establishes valid dredging rights, the
mineral 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 Forest Service can accomplish two objectives. First, the Forest
Service can verify that the operator engaging in the suction dredging
operations possesses valid existing rights. Second, the Forest Service
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 by which such evaluation
can occur is through a plan of operations. Therefore, no changes were
made in the final rule to exempt suction dredging activities from the
purview of the plan of operations requirements.
Section 292.63, Plan of Operations Approval
Upon the submission of a plan of operations in accordance with
Sec. 292.62, this section of the proposed rule first directed the
authorized officer to review it to determine whether the operator has
established valid existing rights. If valid existing rights have not
been established or if the plan of operations contains insufficient
information in this regard, the proposed rule directed the authorized
officer to notify the operator and request further information to
assist in the determination. If valid existing rights are established,
the proposed rule directed the authorized officer to so notify the
operator and commence reviewing the operational aspects of the proposed
mineral development activity in accordance with 36 CFR 228.5. If these
requirements are met, this provision would authorize the approval of
the plan of operations for a term not to exceed five years. The
proposed rule also authorized the modification of approved plans of
operations to take into account resource impacts or mineral development
activities that were not contemplated in the original plan.
Comment: Requiring claim holders to prove their claims may deprive
individuals of property rights guaranteed under the 1872 Mining Law.
One reviewer asserted that the proposed rule's requirement that a claim
holder prove that a valuable mineral is present in sufficient quantity
gives the Forest Service too much discretion and could lead to the
elimination of individual property rights guaranteed in the Mining Law
of 1872.
Response: In order to establish valid existing rights under the
General Mining Law of 1872, a claimant must: (1) discover a valuable
deposit of a locatable mineral on lands open to the operation of the
mining laws; (2) locate a claim on the valuable deposit; (3) monument
the claim as required by state law; (4) do annual assessment work or
pay holding fees; and (5) file various documents with the Bureau of
Land Management. Furthermore, once established, the claimant has a
continuing obligation to maintain the claim and discovery of a valuable
mineral deposit in order to preserve its valid existing rights status.
The system devised under the 1872 Mining Law for establishing valid
existing rights only applies if the federal land is open to mineral
entry. When Congress enacts legislation that withdraws federal land
from the operation of the mining laws, the valid existing rights that
have been established as of the date of withdrawal in accordance with
the above are generally protected providing that the mineral deposit
remains valuable. However, if valid existing rights have not been
established by this time, they may not be established thereafter.
Federal land in the SRNRA has been withdrawn from the operation of
the mining laws on three separate occasions. The first occurred on
January 19, 1981 when the Smith Wild and Scenic River was designated.
The second occurred on September 28, 1984, when the Siskiyou Wilderness
was designated. The third occurred on November 16, 1990, when the SRNRA
was established.
The provision of the proposed rule at issue here simply requires
that a claimant submit information which will enable the Forest Service
to verify whether valid existing rights were established prior to the
date of the withdrawal of federal land and, if so, whether claimant has
maintained the claim and discovery of a valuable mineral deposit. In
those instances where valid existing rights have been established, the
Forest Service will authorize the associated development activities in
accordance with these and other applicable regulations. At present, the
agency would contemplate acquiring an operator's valid existing rights
only if the proposed mineral development activities could not be
conducted without unacceptable impacts to fishery and other resources
for which the SRNRA was established.
It should be noted, that if valid existing rights have not been
established an accordance with federal law, the Forest Service is
legally obligated to prohibit further mineral development activities
associated with these claims.
The process set forth in the proposed rule to evaluate the
information regarding valid existing rights does not vest the agency
with unbridled discretion to eliminate valid existing rights if the
evidence provided confirms that valid existing rights have been
established. Forest Service certified mineral examiners conduct field
reviews and analyze information to form conclusions on the evidence of
valid existing rights; their reports are reviewed by certified review
examiners. Consequently, no change was made in the final rule in
response to this comment.
Comment: There is a conflict of interest if the Forest Service goal
is to eliminate mining, and the authorized officer has authority to
determine validity of claims. One reviewer stated that if the goal of
the Forest Service is to eliminate mining in the SRNRA, the Forest
Service authorized officer would have a conflict of interest making
valid existing rights determinations for mining claims located within
the SRNRA.
[[Page 14628]]
Response: The goal of the Department in promulgating this rule is
not to eliminate mining in the SRNRA. The goal of the Department in
promulgating this rule is to comply with the Act and to allow the
Forest Service to administer the SRNRA in a manner consistent with the
purposes for which it was established. In making valid existing rights
determinations, the agency strives to establish a system which provides
for prompt, efficient, and accurate determinations. No conflict of
interest implications are presented by this rule.
Comment: The rule should authorize the agency to modify a plan of
operations. One reviewer felt that the proposed rule should expressly
state that the Forest Service can initiate modification of a plan of
operations, even though such authority exists in the agency's current
regulations at 36 CFR part 228, subpart A.
Response: The proposed rule, at 36 CFR 292.60(c), specifically
provided that other regulations applicable to the administration of
National Forest System lands would continue to apply to the SRNRA,
unless there was a conflict between them. Current rules at 36 CFR
228.4(e) authorize the Forest Service to request an operator to furnish
a proposed modification of the plan of operations that addresses ways
of minimizing a significant disturbance of surface resources not
anticipated or foreseen when the plan of operations was originally
approved. Nothing in the proposed rule conflicts with this provision;
consequently, it remains in force and is applicable in the SRNRA.
Therefore, there is no need to restate that the agency can initiate
modification of a plan of operations in this rule.
Comment: The rule should include set timeframes for an initial
response to an operator's submission of a plan of operations. One
reviewer felt that the rule should include a provision requiring the
agency to notify an operator within 30 days as to the completeness of
the information provided on valid existing rights. This reviewer also
encouraged the Forest Service to adopt a provision requiring immediate
acknowledgement of receipt of a plan of operations.
Response: It would be inappropriate to include a provision in the
rule requiring the agency to notify the operator within thirty days as
to whether all the necessary information to evaluate a plan of
operations has been submitted. The time necessary to review the
information for completeness depends on several factors including, but
not limited to, the amount of information to review in the plan of
operations, other plans of operations already scheduled for review, the
time of year when the plan of operations is received, and the
availability of Forest Service certified mineral examiners to conduct
the reviews.
Since 1991, the Six Rivers National Forest has established
priorities for scheduling the review of proposed operations for valid
existing rights as follows: (1) highest priority cases with
unauthorized residential occupancy; (2) proposed activities on claims
with known potential for significant resource disturbance; (3) proposed
activities within the Siskiyou Wilderness and ``wild'' portions of
designated Wild and Scenic Rivers; (4) proposed activities within the
Middle Fork/Highway 199 Management Area; and (5) all other proposed
activities. Once a mineral examination is scheduled in accordance with
the above, its priority is not changed.
It is difficult and unrealistic to establish rigid timeframes for
notifying operators of the completeness of the information submitted in
their plan of operations due to the relatively short season during
which field examinations may be conducted. For example, suction dredge
field work must be done during the season prescribed by the California
Department of Fish and Game.
In summary, due to current workload, weather, and other
circumstances beyond the control of the agency, the time required for
reviewing plans of operations for completeness, and the limited staff
and budget to conduct mineral examinations, it is impracticable to
establish a rigid deadline in this rule for notifying operators as to
whether the information contained in their plans of operations
regarding valid existing rights is complete.
The Forest Service also believes that it is unnecessary to include
a specific provision in this rule requiring the agency to acknowledge
receipt of a plan of operations submitted for review. If an operator
believes that acknowledgment of receipt of a plan of operations is
important, he or she may send it via registered or certified mail,
return receipt requested.
Comment: Time limitations from 36 CFR 228.5 for reviewing a plan of
operations should be expressly incorporated into the rule. One reviewer
contended that the proposed rule eliminated the time limitations set
forth in 36 CFR 228.5 for reviewing plans of operations. This reviewer
requested that the rule be modified to specifically incorporate the
timeframes in 36 CFR 228.5 for reviewing a plan of operations once the
valid existing rights determination is complete.
Response: The Department disagrees with this reviewer. The proposed
rule at Sec. 292.60 made clear that plans of operations in the SRNRA
are subject to 36 CFR part 228, subpart A, unless specifically exempted
by these regulations. While the agency 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 Forest Service authorized officer lacks the legal
authority to make binding determinations regarding valid existing
rights. On reviewer contends that the Forest Service has exceeded its
authority under the General Mining Laws by including a provision in the
proposed rule which arrogates unto itself the authority to make
``binding determination as to whether the operator has a valid mining
claim.'' The reviewer states that this authority resides only in the
Secretary of the Interior pursuant to the General Mining Laws.
Response: The Department of the Interior has primary jurisdiction
to determine the validity of mining claims on public lands. However,
the Forest Service need not await the outcome of a validity
determination by the Secretary of the Interior in cases where an
individual asserts a mining claim on National Forest System lands in
bad faith. In such cases, the Forest Service may eject the individual
as a trespasser in conformance with its authority under the Organic Act
and other statutes which require the agency to regulate the occupancy
and use of National Forest System lands to prevent their destruction.
Since 1957, the Forest Service has been conducting validity
determinations involving mining claims on National Forest System lands
in accordance with a Memorandum of Understanding (1957 MOU) with the
Bureau of Land Management. Under the 1957 MOU, where mining claims
involve National Forest System lands, the Forest Service conducts field
examinations, writes reports, and makes determinations on valid
existing rights. Forest Service validity determinations may be reviewed
by the Department of the Interior which is the final administrative
arbiter of the dispute.
The proposed rule did not claim to vest the Forest Service with the
authority to make ``binding'' validity determinations involving mining
claims in the SRNRA. Rather, this rule is consistent with the current
agency practice elsewhere throughout the National Forest System in
conformance with the 1957 MOU. With the exception
[[Page 14629]]
of mining claims that are asserted in bad faith, validity
determinations by the Forest Service may be reviewed by the Department
of the Interior as the final administrative arbiter of the dispute.
Therefore, no change has been made to the text of the final rule as a
result of this comment.
Comment: The rule should include provisions requiring prompt
notification to the operator of Forest Service determinations of
insufficient evidence of valid existing rights and the agency's
recommendation of contest action. One reviewer felt that if the
authorized officer determines that valid existing rights have not been
established, the rule should specifically require the Forest Service to
immediately request BLM to initiate a contest action and to notify the
operator of this request.
Response: The proposed rule contained a provision requiring the
authorized officer to notify the operator in writing if, upon review of
the information submitted as part of the plan of operations,
insufficient evidence of valid existing rights was presented. Since
mining operations can only take place in the SRNRA if valid existing
rights have been established, it would be incumbent upon the Forest
Service to forward its findings and determination to the Bureau of Land
Management with a recommendation for contest action if the operator
persisted with plans to conduct mineral operations in the SRNRA.
Obviously, contest actions would be unnecessary if the operator decides
not to go forward with any mineral operations and abandons his or her
claim(s) following the Forest Service's determination.
The Department believes that the Forest Service's standard
procedures already provide for prompt request for contest action and
timely notice to the operator of same sought by this reviewer and,
hence, no change has been made in the final rule.
Comment: Potential for ``double jeopardy'' on proof of valid
existing rights. One reviewer felt that the proposed rule would give
the Forest Service ``two bites at the apple'' to challenge an
operator's claim of valid existing rights. The reviewer believed that
this would increase the operator's administrative burden to prove valid
existing rights and would also be an inefficient use of Forest Service
resources.
Response: The purpose of this provision is not to give the Forest
Service ``two bites at the apple'' or to increase the time and expense
associated with establishing valid existing rights. Rather, the purpose
of this section is to ensure that the operator still possesses valid
existing rights after the passage of time. As noted earlier in response
to a comment about the continuity requirement in the definition of
``valid existing rights,'' an operator must be able to demonstrate not
only that valid existing rights were established as of the date of the
withdrawal of the federal land on which the claim is located, but he or
she must also be able to prove that the valid existing rights were
maintained continuously thereafter. This means, among other things,
that the marketability of the minerals that are the subject of the
claim must persist.
Several examples of when the Forest Service might conduct another
determination of an operator's claim of valid existing rights may be
illustrative.
When a Forest Service certified mineral examiner concludes that a
claim contains discovery of a valuable mineral deposit, resulting in a
finding that there is sufficient evidence of valid existing rights to
process a plan of operations, and operations are approved, the approved
operations should result in extraction of the valuable mineral deposit
constituting the discovery. Upon the exhaustion of the valuable mineral
deposit, there will no longer be sufficient evidence of valid existing
rights to support a claim, and the claim holder would be expected to
abandon or relinquish the claim. Should the holder not abandon or
relinquish the claim, the Forest Service could challenge it and obtain
a determination that the operator no longer possess valid existing
rights.
Another situation that merits a second valid existing rights
determination might occur when an operator fails to conduct or complete
the mineral operations as described in a previously approved plan of
operations and desires to reinitiate the mining activity. If the
originally approved plan of operations has expired or is obsolete, the
operator must be able to provide sufficient evidence of valid existing
rights from the date of withdrawal and continuously thereafter to the
date of determination related to the new proposal. In this situation,
there would have been sufficient evidence of valid existing rights from
the date of withdrawal to the date of the first valid existing rights
determination, but the operator would need to provide additional
evidence that there was a valuable mineral deposit from the first
determination continuously to the present time. The term
``continuously'' within the context of these regulations means taking
into consideration the relevant historic range of market prices and
costs as well as the likelihood of their continuation or change.
The Forest Service has an obligation under the Act to ensure that
development only occurs on claims with valid existing rights. Since a
claim with valid existing rights at one point in time may not continue
to have valid existing rights, it may be necessary for the claim holder
to prove that valid existing rights have been established on more than
one occasion since the date of withdrawal.
Comment: There is an improper reference to 36 CFR Sec. 228.5(b).
One reviewer noted that the reference to 36 CFR 228.5(b) in
Sec. 292.63(d) of the proposed rule should have been to 36 CFR
228.5(a).
Response: The reviewer is correct, and this citation has been
corrected in the final rule.
Comment: Duration of plans of operations is not appropriate. Two
reviewers noted that five years is too short a duration for a plan of
operations and that the maximum term for such a plan should be 25
years. Their arguments in favor of a longer term are: (1) The high cost
associated with preparing multiple short term plans of operation
compared to preparing one long term plan; (2) the inefficient use of
agency resources that would be required to review new plans of
operation at five year intervals; and (3) the potentially adverse
effects on the operator's financing arrangements.
In contrast to these views, one reviewer interpreted this provision
of the proposed rule as providing for continual cooperative discussions
between the operator and the Forest Service following the development
and approval of plan of operations. This individual suggested the
inclusion of a provision requiring reevaluations every five years for
plans of operation approved for more than five years.
Response: The Forest Service is disinclined to approve plans of
operations in the SRNRA for more than five years. The agency's current
mining regulations require that a plan of operations be prepared for
the entire life of the proposed mining operation, except for aspects of
the operation that are unknown at the time the plan is prepared. Even
in these cases, the mining regulations require the operator to describe
in the plan the operations that are reasonably foreseeable at that time
and to supplement or modify the plan if these operations are changed.
This rule does not change that requirement. Plans of operations for
mineral development activities in the SRNRA should describe all the
proposed operations throughout the
[[Page 14630]]
projected life of the mine. The only difference between this rule and
the agency's current mining regulations concerns the duration for which
the plans of operations may be approved. Under this rule, even though
the plan of operations describes the entire mining operation which in
some cases will exceed five years, the approval will only be valid for
a 5-year period. Under the current mining regulations, the plan of
operations may be approved for the full duration of the proposed
operation.
The Department believes that assessing the effects of proposed
mining operations in the SRNRA and prescribing appropriate mitigation
over the entire projected life of the mine would be difficult in light
of the dynamic environment of the SRNRA and the significant and fragile
resource values for which the area was designated. The agency agrees
that even after a plan of operations is approved, cooperative
discussions between the Forest Service and the operator will be
necessary to monitor ongoing impacts of the mining operation on SRNRA
resource values and whether further adjustments in those operations are
necessary.
The Department believes that it is appropriate and in the public
interest to limit the approval period for plans of operations in the
SRNRA to not more than five years. An operator may choose whether to
submit a new plan of operations for each successive 5 year term or
simply to resubmit the original plan with appropriate modifications.
While the duration of approval of the plan of operations is not changed
from that proposed, the text of Sec. 292.63(e) in the final rule makes
clear that the 5-year approval is different than the length of approval
that may be granted under 36 CFR 228.5. No change was made in the final
rule as a result of this comment.
Section 292.64--Plan of Operations Suspension
This section of the proposed rule would authorize the Forest
Service to direct an operator to suspend mineral development activities
even if a plan of operations has been approved. The proposed rule
authorizes the Forest Service to suspend an operator's mineral
operations if they 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 in which the violations present an
imminent threat of harm to public health, safety, or the environment,
the Forest Service must notify the operator not less than thirty days
in advance of the suspension. The thirty day notice should, in most
instances, give the operator sufficient time to cure 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
Forest Service is authorized to take immediate action to suspend the
mineral development activity. In these cases, the rule directs the
Forest Service to notify the operator of the suspension as soon as is
reasonably practicable thereafter.
Comment: Suspension of a plan of operations without prior notice to
the operator is a denial of due process. One reviewer felt that the
suspension of a plan of operations without notice to the operator is a
violation of constitutional requirements of due process.
Response: The proposed rule describes two scenarios under which the
suspension of mineral operations may occur. The first scenario deals
with mineral operations that are not being conducted in accordance with
the applicable laws, regulations, or the approved plan of operations
but do not present an immediate threat to public health, safety, or the
environment. In these cases, the proposed rule specifically provides
that the authorized officer will notify the operator not less than 30
days prior to the suspension during which time the operator may modify
the operations and thus avoid the suspension. The second scenario deals
with mineral operations that pose a ``threat of imminent harm to public
health, safety, or the environment.'' In these cases, the proposed rule
authorizes immediate suspension of operations but requires that the
operator be notified of the basis for the suspension ``as soon as
reasonably practicable following the suspension.''
The Supreme Court has held that the type of due process required
under the Constitution varies depending upon the private interest
affected by the government action, the risk of an erroneous deprivation
of the private interest by the government action, and the Government's
interest (including the functions involved and the fiscal and
administrative burdens) that additional or substitute procedural
requirements would entail. While the Supreme Court has maintained that
due process must afford individuals an opportunity to be heard ``at a
meaningful time and in a meaningful manner,'' it has not required that
such opportunities must necessarily occur prior to the challenged
government action in order to be constitutional. Indeed, there have
been numerous cases in which the court has upheld procedures that offer
an individual after-the-fact opportunities to challenge government
actions against due process challenges. These procedures have been
routinely upheld in contexts where government actions have been taken
to abate an immediate threat to public health, safety, and welfare.
The only situation described in the proposed rule when ex post
notice of a suspension would be provided is when a clear and present
threat to public health, safety and welfare is presented. This is not a
violation of constitutional standards of due process. Therefore, no
changes have been made to the text of the final rule based on this
comment.
Section 292.68, Indemnification
The 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
for any action resulting from noncompliance with an approved plan of
operations or activities outside a mutually agreed to operating plan.
Comments: 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
[[Page 14631]]
the public forests and national forests which may have been set
aside or which may hereafter be 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 has always existed, at least
since the enactment of the Organic Administration Act in 1897. Similar
indemnification provisions are incorporated into several other written
instruments which authorize the use of National Forest System lands.
For example, special use authorizations for outfitters and guides and
ski area operators and the consent authorization for oil and gas lease
operators and lessees contain indemnification provisions.
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 Ninth Circuit Court of
Appeals rejected a vagueness challenge to a Forest Service regulation
prohibiting certain types of conduct related to mining activities on
National Forest System lands.
This rule meets all the factors required by the Supreme Court
ruling. However, it does not invoke criminal sanctions and does not
affect constitutionally protected rights. The Department believes that
the 9th Circuit's reasoning in Doremus is also instructive and relevant
and that this rule would withstand a vagueness challenge under that
ruling as well. Consequently, there have been no changes made to the
text of the final rule based on this comment.
Regulatory Impact
This 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. This rule
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 rule will not interfere with an action taken or planned by another
agency nor 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 rule, since it affects only mining activities on
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 proposed 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
After an initial conclusion that the proposed rule was
categorically excluded from documentation in an environmental
assessment (EA) or impact statement, it was determined that the Forest
Service should prepare an EA. A copy of the EA and the Finding of No
Significant Impact are available upon request by calling the contact
listed earlier in this rulemaking under FOR FURTHER INFORMATION
CONTACT.
Controlling Paperwork Burdens on the Public
In the proposed rule, the agency requested comment on two new
information requirements. Proposed Sec. 292.62(b) specified that in
addition to the requirements of Sec. 228.4, an operator must provide
information to substantiate valid existing rights as part of a plan of
operations. Proposed Sec. 292.65(b) required those who wish to exercise
outstanding mineral rights to submit an operating plan. Only one person
commented on the first collection; no comments were received on the
second collection. The one respondent said that the requirement for
information supporting valid existing rights would be burdensome to the
claim holder or operator. As stated in the preceding indepth response
to this comment, the agency does not consider this information
collection burdensome since most of the required information has been
generated already by the claim holder or operator. The agency needs
this information for verification of valid existing rights in order to
authorize use, as required under the Smith River National Recreation
Area Act of 1990 (16 U.S.C. 460bbb et seq.). Therefore, no changes were
made in the final rule based on the comment regarding information
requirements.
This information collection 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 implication of this proposed rule have been
reviewed and considered. It has been determined that there is no risk
of a taking.
Civil Justice Reform Act
This 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 proposed rule or
which would impede its full implementation would be preempted; (2) no
retroactive effect would be given to this proposed rule and; (3) it
would not require administrative proceedings before parties would file
suit in court challenging its provisions.
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.
[[Page 14632]]
Valid Existing Rights
292.62 Plan of operations--supplementary requirements.
292.63 Plan of operations--approval.
292.64 Plan of operations--suspension.
Outstanding Mineral Rights
292.65 Operating plan requirements.
292.66 Operating plan acceptance.
Mineral Materials
292.67 Mineral material operations.
Indemnification
292.68 Indemnification.
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.
(e) Applicability to ongoing operations. Operations under an
acceptable operating plan or an approved plan of operations in effect
prior to the effective date of these regulations shall be for a limited
time not to exceed 5 years. If ongoing operations have a shorter
specified operating time, the shorter operating time shall remain in
effect.
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 substance means any substance so classified under the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended (42 U.S.C. 9601).
Operating plan means the document submitted in writing by the owner
or lessee, or a representative acting on behalf of an owner or lessee,
to exercise outstanding mineral rights for minerals underlying National
Forest System lands.
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.
Valid existing rights means mining claims on National Forest System
lands in the SRNRA excluding the Siskiyou Wilderness (except for the
Gasquet-Orleans Corridor addition) and wild segments of the Smith Wild
and Scenic River (including the Middle Fork, North Fork, and South Fork
and tributaries thereto) which: (1) were properly located prior to
November 16, 1990, for a mineral that was locatable at that time; (2)
were properly maintained thereafter under the applicable law; (3) were
supported by a discovery of a valuable mineral deposit within the
meaning of the general mining law prior to November 16, 1990, which
discovery has been continuously maintained since that date; and (4)
continue to be valid. For mining claims in the Siskiyou Wilderness
(except for the Gasquet-Orleans Corridor addition), the location and
discovery must have occurred prior to September 26, 1984. For mining
claims in wild segments of the Smith Wild and Scenic River, the
location and discovery must have occurred prior to January 19, 1981.
Valid Existing Rights
Sec. 292.62 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 part, a plan of
operations is required when a proposed operation within the SRNRA
involves mechanical or mechanized equipment, including a suction dredge
and sluice.
(b) Information to support valid existing rights. A plan of
operations within the SRNRA must include at least the following
information relevant to the existence of valid existing rights from the
date the affected area of land was withdrawn from mineral entry to the
present:
(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 the affidavit of assessment work or notice 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
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) For lode and placer mining claims--
(i) An identification of the valuable mineral that has been
discovered;
(ii) An identification of the site within the claims where the
deposit has been discovered and exposed;
(iii) 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
(iv) Evidence of past and present sales of the valuable mineral;
and
(7) For millsite claims, information proving that the millsite is
associated with a valid mining claim and that the millsite is used or
occupied for mining or milling purposes.
(c) Minimum information on proposed operations. A plan of
operations must include the information required at 36 CFR 228.4 (c)(1)
through (c)(3) 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 protection requirements of 36 CFR 228.8 which includes
reclamation. In addition, when practicable, reclamation will proceed
concurrently with the mineral operation.
Sec. 292.63 Plan of operations approval.
(a) 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 that one of the following circumstances
apply:
(1) That sufficient information on valid existing rights has been
provided
[[Page 14633]]
and the date by which the Forest Service expects to complete the valid
existing rights determination; or
(2) That sufficient information on valid existing rights has not
been provided and the specific information that still needs to be
provided.
(b) If upon receipt, review, and verification of all requested
information, the authorized officer finds that there is not sufficient
evidence of valid existing rights, the authorized officer shall so
notify the operator in writing, provide the reasons for the
determination, and advise that the proposed mineral operation cannot be
conducted.
(c) If upon receipt, review, and verification of all requested
information, the authorized officer finds that there is sufficient
evidence of valid existing rights, the authorized officer shall so
notify the operator, in writing, that a review of the proposed plan of
operations is underway and the date by which the review is expected to
be completed. A prior determination that there is sufficient evidence
of valid existing rights shall not bar the authorized officer from
requesting the Department of the Interior to file a mineral contest
against a mining claim if the authorized officer has a reasonable basis
to question that determination.
(d) Upon completion of the review of the plan of operations, the
authorized officer shall ensure that the minimum information required
by Sec. 292.62(c) 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.
(e) Notwithstanding the provisions of 36 CFR Sec. 228.5, the period
for which a plan of operations is approved within the SRNRA may not
exceed five years and must be explicitly identified by the authorized
officer in giving notice of approval of a plan of operations.
(f) If an operator desires to make substantive changes in the type,
scope, or duration of mineral operations from those described in an
approved plan of operations and those changes may result in resource
impacts not anticipated when the original plan was approved, the
operator must submit a supplemental plan or a modification for review
and approval of the authorized officer pursuant to Sec. 292.62 of this
proposed rule.
Sec. 292.64 Plan of operations suspension.
The authorized officer may suspend mineral operations, in whole or
in part, due to an operator's noncompliance with applicable statutes,
regulations, or terms and conditions of the approved plan of
operations. Except as otherwise provided in this section, prior to
suspending operations, the authorized officer must first notify the
operator in writing of the basis for the suspension and provide the
operator with a 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. Generally, the
authorized officer shall notify the operator not less than thirty days
prior to the date of the proposed suspension; however, 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.
Outstanding Mineral Rights
Sec. 292.65 Operating plan requirements.
(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 for review at least 60
days in advance of surface occupancy.
(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 substances and any other
toxic materials, petroleum products, insecticides, pesticides, and
herbicides that will be used during the mineral operation, and the
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 method or strategy
for their placement, control, isolation, or removal; and
(7) A reclamation plan to reduce or control on-site and off-site
damage to natural resources resulting from mineral operations.
(i) The plan should provide, to the extent practicable, that
reclamation proceed concurrently with the mineral operations and must
show how public health and safety are maintained.
(ii) Reclamation measures to be identified and described in the
plan include, but are 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.
(iii) The area of surface disturbance must be reclaimed to a
condition or use that is consistent with the SRNRA Management Plan.
Sec. 292.66 Operating plan acceptance.
(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 in writing that one of the
following circumstances apply:
(1) That sufficient information on ownership of the outstanding
mineral rights has been provided and the date by which the review is
expected to be completed; or
(2) That sufficient information on ownership of outstanding mineral
rights has not been provided and the specific information that still
needs to be provided.
(b) If the review shows that outstanding mineral rights have not
been established, the authorized officer must notify the operator in
writing of this finding, 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
established, the authorized officer must notify the operator in writing
of this finding, that review of the proposed operating plan is
underway, and the date by which the review is expected to be completed.
(d) The authorized officer shall focus review of 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 SRNRA Management
Plan; and
[[Page 14634]]
(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 that one of the
following two circumstances apply:
(1) The operating plan meets the criteria of paragraphs (d)(1)
through (d)(3) of this section, and, therefore, the Forest Service has
no objections to commencement of operations and that the Forest Service
intends to monitor operations to ensure that operations conform to the
operating plan; or
(2) The operating plan does not meet all of the criteria in
paragraphs (d)(1) through (d)(3) of this section and the reasons why
the operating plan does not meet the criteria. In this event, the
authorized officer shall propose changes to the operating plan and
attempt to negotiate modifications that will enable the operating plan
to meet the criteria in paragraphs (d)(1) through (d)(3) of this
section.
(f) To conduct mineral operations beyond those described in an
acceptable operating plan, the owner or lessee must submit in writing
an amended operating plan to the authorized officer at the earliest
practicable date. The authorized officer shall have not less than 60
days in which to review and respond to a proposed amendment before the
new operations begin. The review will be conducted in accordance with
paragraphs (d)(1) through (d)(3) of this section.
Mineral Materials
Sec. 292.67 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 and the four areas identified by the Act that are within the
exterior boundaries of the SRNRA but are not classified as part of the
SRNRA.
Indemnification
Sec. 292.68 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:
(a) Injury, loss, or damage, including fire suppression costs,
which the United States incurs as a result of the mineral operations;
(b) Payments made by the United States in satisfaction of claims,
demands or judgments for an injury, loss, or damage, including fire
suppression costs, which result from the mineral operations; and
(c) Costs incurred by the United States for any action resulting
from noncompliance with an approved plan of operations or activities
outside a mutually agreed to operating plan.
Dated: March 28, 1996.
Mark Gaede,
Acting Deputy Under Secretary, Agriculture.
[FR Doc. 96-8097 Filed 4-2-96; 8:45 am]
BILLING CODE 3410-11-M
