[Federal Register Volume 61, Number 159 (Thursday, August 15, 1996)]
[Proposed Rules]
[Pages 42407-42412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20824]
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DEPARTMENT OF THE INTERIOR
Bureau of Land Management
43 CFR Part 3860
[WO 320 1990 01 24 1A]
Patenting Information: Petition for Rulemaking
AGENCY: Bureau of Land Management, Interior.
ACTION: Petition for rulemaking; request for comments.
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SUMMARY: The Bureau of Land Management (BLM) of the United States
Department of the Interior (DOI) seeks comments concerning the rule
changes proposed in a petition submitted by twelve private
organizations. The petition requests BLM to amend its regulations to
require disclosure of the information used by BLM to determine the
validity of mining claims and the eligibility of mill site claims for
patenting under the 1872 Mining Law. Comments will assist the Director
of BLM in deciding whether to grant or deny the petition.
DATES: BLM will accept written comments on the petition until October
15, 1996.
ADDRESSES: Commenters may hand-deliver comments to the Bureau of Land
Management, Administrative Record, Room 401, 1620 L St., N.W.,
Washington, D.C.; mail comments to the Bureau of Land Management,
Administrative Record, Room 401LS, 1849 C Street, N.W., Washington,
D.C. 20240; or transmit comments electronically via the Internet to
[email protected] Please include ``Attn: Roger Haskins,
Mineral Patent Petition'' in your Internet message. If you do not
receive a confirmation from the system that we have received your
Internet message, contact the person identified under
FOR FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Roger Haskins, (202) 452-0355.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background and Substance of Petition
III. Procedural Matters
I. Public Comment Procedures
Written Comments
Written comments on the suggested change should be specific, should
be confined to issues pertinent to the proposed revision, and should
explain the reason for the comment. Where practicable, commenters
should submit three copies of their comments. If BLM receives your
comments after the close of the comment period (see DATES) or if your
comments are delivered to an address other than those listed (see
ADDRESSES), BLM may not necessarily consider them or include them in
the Administrative Record for the petition.
Availability of Copies
Copies of the entire petition are available for inspection, and
interested persons may obtain them by contacting the person identified
under
FOR FURTHER INFORMATION CONTACT.
Public Hearing
BLM will not hold a public hearing on the proposed revision, but
BLM personnel will be available to meet with the public during business
hours, 9 a.m. to 4 p.m., during the comment period. In order to arrange
such a meeting, contact the person identified under
FOR FURTHER INFORMATION CONTACT.
[[Page 42408]]
II. Background and Substance of Petition
The DOI received a letter dated May 29, 1996, from James S. Lyon,
Vice President for Policy of the Mineral Policy Center, transmitting a
petition for rulemaking (MPC petition). The petition was submitted
jointly by the Mineral Policy Center, American Rivers, Boulder-White
Clouds Council, Citizens for the Preservation of Powers Gulch and Pinto
Creek, Greater Yellowstone Coalition, Montana Environmental Information
Center, National Wildlife Federation, Northern Plains Resource Council,
the Sierra Club, Taxpayers for Common Sense, Western Mining Action
Project, the Western Organization of Resource Councils and Western
Mining Action Project. The petitioners request that BLM amend its
regulations at 43 CFR part 3860 to establish ``Patenting Disclosure
Regulations'' that would require the disclosure to the public of all
information used by BLM to determine the validity of mining claims and
the eligibility of mill site claims for patenting under the 1872 Mining
Law (30 U.S.C. 22 et seq). The petitioners also request that BLM's
regulations be amended to provide for a transition period during which
companies that have previously submitted information that they wish to
remain confidential could withdraw their patent application to avoid
the disclosure of the information. BLM has appended the substantive
portion of the petition to the end of this notice.
Under section 553 of the Administrative Procedure Act, 5 U.S.C.
553(e), any person may petition an agency to initiate a proceeding for
the issuance, amendment, or repeal of a rule. Under the applicable
regulations for rulemaking petitions, 43 CFR 14.2, the petitioner is
required to provide rule text. Although the MPC petition does not
include rule text, BLM has decided to consider the petition. Under 43
CFR 14.4, this notice seeks public comment on the merits of the
petition and on the rule changes suggested in the petition because BLM
has determined that public comment may aid in consideration of the
petition.
In particular, BLM seeks comments regarding: (1) how the requested
rulemaking may affect the process of considering and acting on
applications for patent under the 1872 Mining Law; (2) how the type of
information identified for disclosure in the petition will be used by
the public; (3) how such disclosure would impact patent applicants; (4)
whether the information to be disclosed should include documents that
reflect DOI's deliberation over a patent application before a decision
has been made; and (5) what impact this rulemaking might have on
pending patent applications.
At the close of the comment period, BLM will make a decision
whether to grant or deny the petition. If the petition is granted, BLM
will begin rulemaking proceedings in which it would again seek public
comment regarding proposed, specific rule text. Following receipt and
analysis of public comment, BLM would publish a final rule. If BLM
decides to deny the petition, it would publish a notice explaining that
decision and take no further rulemaking action pursuant to the
petition. By publishing this notice, BLM does not necessarily endorse
the petition for rulemaking. The petition does not necessarily reflect
the position or views of BLM or DOI.
III. Procedural Matters
Executive Order 12866 and Regulatory Flexibility Act
Publication of this notice of the receipt of the petition for
rulemaking is a preliminary step prior to the initiation of the
rulemaking process. If BLM decides to grant the petition, it will begin
a rulemaking process. At this stage, neither a regulatory flexibility
analysis nor a regulatory impact analysis under Executive Order 12291
are required.
National Environmental Policy Act
Publication of this notice does not constitute a major Federal
action having a significant effect on the human environment for which
an environmental impact statement under the National Environmental
Policy Act, 44 U.S.C. 4322(a)(C), is needed.
Action Plan for Processing Pending Patent Applications
BLM is publishing this notice at the initiative of the petitioners.
This action is separate and apart from DOI's action plan for processing
90 percent of the mineral patent applications grandfathered from the
patent funding moratorium within five years as required by section 322
of the Interior and Related Agencies Appropriations Act for Fiscal Year
1996, Pub. L. 104-134, 142 Cong. Rec. H 3896 (daily ed. April 25,
1996).
Dated: August 8, 1996.
Maitland Sharpe,
Acting Director, Bureau of Land Management.
Appendix
The text of the petition dated May 29, 1996, from the Mineral
Policy Center and others is printed below. Copies of the entire
petition, including exhibits, are available for inspection and may be
obtained by contacting the person identified under
FOR FURTHER INFORMATION CONTACT.
Petition for Rulemaking Before The Honorable Bruce Babbitt, Secretary
of the Interior
United States Department of the Interior, Washington, DC.
Submitted by
Mineral Policy Center, American Rivers, Boulder-White Clouds Council,
Citizens for the Preservation of Pinto Creek and Powers Gulch, Greater
Yellowstone Coalition, Montana Environmental Information Center,
National Wildlife Federation, Northern Plains Resource Council, Sierra
Club, Taxpayers for Common Sense, Western Mining Action Project, and
Western Organization of Resource Councils
For the adoption of Federal regulations to require disclosure of
all information used to establish the validity of mining claims and
eligibility of mill site claims for which mineral patent
applications have been submitted under the 1872 Mining Law.
29 May 1996
Introduction
Mineral Policy Center and the above organizations, pursuant to 5
U.S.C. 553(e) and 43 CFR 14, petition the Secretary of Interior
(``the Secretary'') to issue regulations that require the disclosure
to the public of all information used by the Bureau of Land
Management (BLM) to establish the validity of mining claims and the
eligibility of mill site claims for patenting under the 1872 Mining
Law, 30 U.S.C. 22 et seq. This disclosure will include, but not be
limited to, the information listed in section II(A) below. The
Secretary should establish rules that make public disclosure of this
information a pre-requisite to further processing of any mineral
patent applications.
These regulations (``the Patenting Disclosure Regulations'')
serve the public's compelling interest in knowing the factual basis
upon which the Department of Interior disposes of billions of
dollars worth of public mineral resources under the 1872 Mining Law.
The adoption of the Patenting Disclosure Regulations will not be
unfair or inequitable to parties that have already applied for
mineral patents. The Patenting Disclosure Regulations will provide
for a transition period which will allow patent applicants to come
into compliance with the Regulations' public disclosure
requirements. Because the Patenting Disclosure Regulations will not
prevent mining, and will not prevent the patenting of mining and
mill site claims under the 1872 Mining Law, applicants win not
suffer compensable harm.
I. Petitioning Organizations
This petition is submitted on behalf of Mineral Policy Center
and eleven other organizations (``the petitioners''). These
organizations conduct research on and advocate more environmentally
and fiscally
[[Page 42409]]
responsible management of public resources by the federal
government. A description of each petitioner, its membership, and
focus of work follows:
Mineral Policy Center is a Washington-based non-profit
organization which conducts research on and advocates more
environmentally and fiscally responsible hardrock mining policies in
the United States and worldwide. The Center has approximately 2,500
members, and is based in Washington, D.C., with field offices in
Colorado and Montana.
American Rivers is a non-profit organization devoted to the
protection and restoration of American rivers and watersheds.
American Rivers is actively involved in campaigns to protect rivers
from pollution caused by past, current, and proposed mining
operations. The organization has over 15,000 members in the United
States.
Boulder-White Clouds Council is a non-profit organization which
advocates environmental protection of the Upper Salmon River country
of Central Idaho.
Citizens for the Preservation of Powers Gulch and Pinto Creek is
a non-profit organization of citizens formed to protect the Tonto
National Forest (Arizona) from the impacts of a copper mine
presently proposed by Cambior, a Canadian corporation. Many of its
members live adjacent to the proposed mine.
Greater Yellowstone Coalition (GYC) is a regional conservation
group whose mission is to assure ecosystem health throughout the 18-
million acre Greater Yellowstone Ecosystem. Comprised of 120 member
groups, GYC currently has more than 7,000 individual members who
regularly participate in recreational, scientific, and natural
history activities on public lands including those lands
administered by the BLM, U.S. Forest Service, and National Park
Service.
The Montana Environmental Information Center (MEIC) is a
nonprofit organization founded in 1973 with members throughout the
United States and the State of Montana. The MEIC is dedicated to
preserving and enhancing the natural resources and natural
environment of Montana. In this objective, the MEIC gathers and
disseminates information in order to inform its members and the
general public about their rights and obligations under state and
federal environmental law. The MEIC is also dedicated to assuring
that state and federal officials comply with and fully uphold the
laws of the United States which are designed to protect and enhance
the environment.
National Wildlife Federation (NWF) is the nation's largest
conservation organization. Founded in 1936, the NWF works to
educate, inspire, and assist individuals and organizations of
diverse cultures to conserve wildlife and other natural resources,
and to protect the Earth's environment in order to achieve a
peaceful, equitable, and sustainable future.
Northern Plains Resource Council (NPRC) is a non-profit
grassroots organization that is devoted to the protection of water
and air quality, as well as the promotion of sustainable family
farming and ranching. Based in Montana, the NPRC's 2,500 members
consist of farmers, ranchers, and town dwellers.
The Sierra Club is a national, non-profit, environmental
organization with more than 500,000 members. The Sierra Club
advocates the protection of natural resources and wildlife on public
lands.
Taxpayers for Common Sense is a non-profit, non-partisan, and
independent organization dedicated to cutting wasteful government
spending, subsidies, and tax breaks through research and citizen
education. Based in Washington, D.C., Taxpayers for Common Sense
supports a balanced budget and common sense tax reform.
The Western Organization of Resource Councils (WORC) is a six-
state federation of community groups in Colorado, Idaho, Montana,
North and South Dakota, and Wyoming. The WORC, a non-profit
organization, has over 6,000 members and fifty local chapters in the
six-state region. The WORC's main priorities for regional issues
include the impact of hardrock mining on the environment and Western
communities, sustainable family farm agriculture, and energy and
natural resources development.
Western Mining Action Project is a non-profit environmental
organization which provides legal representation to citizens on
mining issues, including patenting issues.
The petitioners submit this petition in furtherance of the
public interest. Many of petitioners' members live, work, and
recreate near federal lands impacted by hardrock mining.
II. Description of Patenting Disclosure Regulations
The petitioners petition the Secretary to adopt regulations
(``Patenting Disclosure Regulations'') that will require public
disclosure of all information used by the BLM to establish the
validity of mining claims and eligibility of mill site claims for
which mineral patent applications have been submitted under the 1872
Mining Law. Some of this information is factual information
submitted by patent applicants; other information consists of the
data and analysis of public land agencies. The Secretary should make
further processing of any mineral patent applications contingent
upon the disclosure of this information. In the interest of equity
to current patent applicants, the Patenting Disclosure Regulations
should provide for a transition period during which patent
applicants may, if they prefer, withdraw their applications and thus
avoid public disclosure of this information.
A. Types of Information Required To Be Disclosed by the Patenting
Disclosure Regulations
The petitioners seek the disclosure of all information that
forms the basis of the BLM and Forest Service validity examinations,
which determine whether or not a patent applicant has ``discovered''
a ``valuable mineral deposit'' on the applicant's mining claims.
This determination is pivotal in the BLM's ultimate decision whether
to grant or deny a mineral patent.
Specifically, the Patenting Disclosure Regulations should
require the disclosure of the following types of information:
bullet The size and value of mineral reserves;
bullet The methods and costs of ore extraction,
beneficiation, and transportation;
bullet Costs and methods of reclamation and environmental
remediation;
bullet Marketing and labor contracts;
bullet Economic feasibility studies; and
bullet Analyses and data generated by the federal
government which bear on the validity of mining claims under patent
application.
The above enumerated information bears on the issue of whether a
mining claim (lode or placer) contains a valuable mineral deposit.
However, the Patenting Disclosure Regulations should also require
the disclosure of information used to establish the eligibility of
mill site claims. The eligibility of mill site claims depends on
criteria different from those used to establish the validity of
mining claims (lode and placer claims). For example, in contrast
with mining claims, mill site claims must be ``nonmineral'', ``non-
contiguous'' to lode and placer claims, and used for ``mining or
milling purposes''. See 20 U.S.C. 42. Therefore, petitioners seek
disclosure of all information used by public land agencies to
determine whether applicants for mill site patents have satisfied
the criteria above, and all other necessary eligibility criteria.
The Patenting Disclosure Regulations should require the
disclosure of information that mining companies submit to the BLM as
part of patent applications and mineral examinations. In the past,
the Department of the Interior has typically withheld this
information from the public on the grounds that the information
constitutes trade secrets or confidential business information. The
Department has cited the Trade Secrets Act, 18 U.S.C. Sec. 1905, and
Exemption 4 of the Freedom of Information Act, 5 U.S.C. Sec. 552, as
grounds for withholding this type of information.
The Patenting Disclosure Regulations should also require
disclosure by the federal government of the government's own data
and analyses which bear on whether a patent applicant has made a
``valuable'' mineral ``discovery''. The Department of the Interior
has cited Exemption 5 of the Freedom of Information Act (FOIA) as
justification for withholding some of this information.
The attached exhibit, Exhibit A (EX-A), documents an example of
lead petitioner Mineral Policy Center's many unsuccessful attempts
to obtain from BLM officials the type of information enumerated
above. The EX-A contains excerpts from the mineral report prepared
for Barrick Gold Corp.'s mineral patent applications for its
Goldstrike gold mine in Nevada. (Barrick Gold obtained the patents
worth approximately $10 billion in May 1994.) Mineral Policy Center
requested the company's mineral report in February 1994; three
months later, the BLM released a heavily censored copy to the
Center. As EX-A shows, the BLM excised key geological and financial
information from the report which established the basis for the
validity of Barrick's mining claims.
The EX-A illustrates the BLM's refusal to disclose to the public
the information upon
[[Page 42410]]
which the BLM bases its decision whether or not to issue mineral
patents. The BLM's closed-door policy has created the urgent need
for the Secretary of the Interior to adopt Patenting Disclosure
Regulations.
B. Transition Procedures
In order to give companies an opportunity to make an informed
choice regarding means of compliance with these regulations, the
Patenting Disclosure Regulations should establish a reasonable
period of time during which applicants would have the option to
withdraw their patent applications. During this period, companies
that have previously submitted information that they wish to
maintain confidential could withdraw their patent applications and
avoid the required disclosure of this information.
However, upon expiration of the warning period, the information
enumerated above would be subject to full public disclosure.
In particular, the Secretary should establish:
bullet A date upon which the Patenting Disclosure
Regulations take effect;
bullet A date after which current patent applicants can
withdraw their applications and thus avoid public disclosure of
information required to be disclosed by the Patenting Disclosure
Regulations;
bullet A date after which the BLM will make the information
specified in section II(A) above available to the public; and
A provision that the BLM will make its patenting
decisions based exclusively on information that is publicly
available.
III. Justification for the Adoption of the Patenting Disclosure
Regulations
The General Mining Law of 1872 has allowed the sale of at least
$247 billion of publicly-owned mineral resources for nominal sums,
according to Mineral Policy Center estimates. In an era of fiscal
frugality, the Mining Law is fiscally irresponsible. Using a limited
set of factual tests, federal land managers determine if a mining
concern has ``discovered'' a ``valuable'' mineral deposit. Once this
determination has been made, a company can ``patent''--obtain fee
title--to land for a minute fraction of its real value.
Also, by allowing the non-discretionary disposal of lands to
mining operations, patenting decisions have aided the destruction of
unique environmental resources on millions of acres of public land.
These fiscally and environmentally reckless policies have been
largely shielded from public scrutiny. For example, up to the
present, the Department of the Interior has blocked from public
access the factual foundation supporting a determination whether or
not a ``valuable'' mineral deposit has been ``discovered''. Without
access to this vital information, the public has been unable to
evaluate the merits of patenting decisions which dispose of billions
of dollars of the public's mineral wealth without a fair return to
the public.
The petitioners recognize that Congress' failure to reform the
1872 Mining Law compels the BLM to continue processing grandfathered
patent applications. However, Congress' failure does not compel the
BLM to carry out the mineral patenting process in secrecy.
By requiring public land agencies to make patent applications,
mineral reports, and other essential patenting information available
to the public, the Patenting Disclosure Regulations will allow the
American public to meaningfully challenge and evaluate BLM patenting
evaluations.
Public disclosure of mineral patenting information will provide
other benefits, such as contributing to a more informed and balanced
evaluation of the ``value'' of mineral deposits on publicly owned
lands. Also, it will promote needed commentary on the benefits and
costs of mining on public lands. This will include discussion of
contemporary concerns like the necessary costs of environmental
controls and reclamation at mining operations. The Department of
Interior has acknowledged that these environmental costs must be
taken into account in determining the validity of mining claims.
U.S. v. Kosanke Sand Corp., 80 I.D. 538, 546 (1973).
IV. Legal Authority for the Patenting Disclosure Regulations
The Secretary has the legal authority, pursuant to the 1872
Mining Law and the Federal Land Policy Management Act (FLPMA), to
adopt the Patenting Disclosure Regulations. In fact, the FLPMA
obligates the Secretary to adopt the Patenting Disclosure
Regulations.
A. The Secretary's Authority To Adopt the Patenting Disclosure
Regulations Under the 1872 Mining Law
The 1872 Mining Law establishes broad authority for the
Secretary to adopt the Patenting Disclosure Regulations. The Mining
Law's Section 22 authorizes the exploration and purchase of public
land containing mineral deposits ``under regulations prescribed by
law.'' See 30 U.S.C. Sec. 22. While legislative history on this
section is scant, the statute's plain language reveals the intention
of its owners to furnish the Law's administrator a broad and
flexible grant of authority to promulgate appropriate regulations.
In fact, Section 22 has been relied upon as authority for many BLM
regulations under the Mining Law. These regulations include those on
locating mining claims (43 CFR Part 3830) and applying for mineral
patents (43 CFR Part 3860). Section 22 has also been relied upon as
authority for the BLM's regulations on surface management of mining
operations. See 43 CFR Sec. 3809.0-3 (a). Providing for public
access to the contents of mineral patent applications and reports is
clearly within the ambit of this legislative authority.
B. The Secretary's Authority to Adopt the Patenting Disclosure
Regulations Under the Federal Land Policy Management Act
The Federal Land Policy and Management Act, 43 U.S.C. Sec. 1701
et seq., provides an additional source of authority for the
Patenting Disclosure Regulations. The FLPMA directs the Secretary of
the Interior, ``by regulation or otherwise'', to ``take any action
necessary to prevent unnecessary or undue degradation'' of public
lands. The FLPMA expressly applies this directive to the 1872 Mining
Law activities. See 43 U.S.C. Sec. 1732(b). Public challenge and
scrutiny of mineral patent applications and examinations--which the
Regulations will promote reasonably serve this statutory objective.
This is especially relevant when maintaining strong Federal land
management regulation of mining operations is ``necessary to prevent
unnecessary or undue degradation'' of Federal lands. Many of the
petitioners strongly believe that patent issuance undercuts Federal
control of mining operations, because patent issuance results in the
regulation of mining operations passing from Federal to largely
state control. Moreover, effective public scrutiny of the patenting
process can prevent the improper disposal of Federal lands. Improper
disposal in and of itself constitutes ``unnecessary or undue
degradation.''
Under a policy of full disclosure, the public, for example, may
challenge a patent applicant's mineral report as seriously
understating long-term environmental costs of a mining operation and
the operation's impact on environmental resources. If these
previously unidentified environmental costs result in the patent
applicant's failing the ``discovery test'', the applicant's, mining
claims will not be valid and a patent will not be issued.
C. The FLPMA Obligates the Secretary to Adopt the Patenting
Disclosure Regulations
The FLPMA, in fact, obligates the Secretary to adopt these
Patenting Disclosure Regulations. FLPMA states that the Secretary
``shall, by regulation or otherwise, take any action necessary to
prevent unnecessary or undue degradation of the lands.'' 43 U.S.C.
Sec. 1732(b) (emphasis added). Because these disclosure regulations
are necessary to prevent ``unnecessary or undue degradation'', as
described above, the Secretary must adopt them.
V. Rebuttal to Legal Objections Which May Be Raised Against the
Patenting Disclosure Regulations
The Department of the Interior has raised a number of legal
objections to public disclosure of the information sought by the
petitioners. None of these arguments has merit.
A. The Trade Secrets Act
The Department of the Interior has cited the Trade Secrets Act,
18 U.S.C. Sec. 1905, as justification for barring public disclosure
of any trade secrets or confidential business information sought by
this petition. Although the Trade Secrets Act does prohibit release
of this of information by government employees, the bar does not
apply if the disclosure is ``authorized by law.''
Chrysler v. Brown is the principal case which establishes the
standards that disclosure regulations must meet in order for them to
be ``authorized by law'' under the Trade Secrets Act. 99 S.Ct. 1705
(1979). In Chrysler, a Federal contractor challenged the Department
of Labor's Office of Federal Contract Compliance Programs
regulations which provided for public disclosure of information the
contractor was I required to submit to the government on its
affirmative action programs. The contractor asserted that
[[Page 42411]]
this information was confidential business information under the
Trade Secrets Act and that its release to the public was not
authorized'' by law under the Act. The Supreme Court found in favor
of the contractor, holding that these regulations were not
``authorized'' by any statute.
The Chrysler court's decision established three standards that
disclosure regulations must satisfy in order to be ``authorized by
law'' under the Trade Secrets Act. First, the regulations must be
the product of a congressional grant of legislative authority, such
that there is a `nexus' between the disclosure regulations and
Congress's legislative authority; second, the regulations must be
``substantive'' or ``legislative'' such that they affect individual
rights and obligations; and third, the regulations must have been
promulgated in accordance with the rulemaking requirements of the
Administrative Procedure Act, 5 U.S.C. Sec. 553. Chrysler, 99 S.Ct.
at 1717-1719.
The Patenting Disclosure Regulations are ``authorized by law''
under all the Chrysler standards. Most significantly, Section 22 of
the Mining Law's broad grant of regulatory authority establishes a
``nexus'' between the Patenting Disclosure Regulations and the
requisite delegation of legislative authority by Congress. Unlike
the regulations held not to be ``authorized by law'' in Chrysler,
the regulations proposed here do not spring from a mere
``housekeeping'' statute, concerned only with the daily internal
workings of an executive department. Chrysler at 1722. Rather,
Section 22 provides authority for the Secretary of the Interior to
adopt broad and substantive regulations on a wide range of issues as
long as they are not inconsistent with other laws.
The Federal Land Policy Management Act (see above) similarly
satisfies the Chrysler nexus test. The FLPMA requires the Secretary
of the Interior to ``take any action necessary to prevent
unnecessary or undue degradation'' of public lands. 43 U.S.C.
Sec. 1732 (emphasis added). This broad statutory directive
contemplates the Patenting Disclosure Regulations here, because it
expresses Congress's intent to give the Secretary wide latitude to
adopt regulations that support the objective of preventing
``unnecessary or undue degradation'' on public lands.
Further, the Patenting Disclosure Regulations would meet the two
remaining Chrysler standards. First, these Patenting Disclosure
Regulations are clearly ``substantive'', affecting the individual
rights and obligations'' of mineral patent applicants. Chrysler at
1718. Finally, the Patenting Disclosure Regulations would conform to
the formal notice and comment rulemaking procedures required for
substantive rules under the Administrative Procedure Act, 5 U.S.C.
Sec. 553(b). Id. at 1724. In sum, under the Chrysler standards, the
1872 Mining Law's Section 22 and FLPMA invest the Patenting
Disclosure Regulations with the necessary ``authority'' to exempt
them from 'ne Trade Secret Act's bar against the government's
disclosure of confidential commercial information.
B. Freedom of Information Act (FOIA) Exemptions
The Department of the Interior has cited exemptions to mandatory
disclosure requirements under the Freedom of Information Act, 5
U.S.C. Sec. 552, as barriers to the disclosure of much of the
information sought by the petitioners. Exemption 4 of FOIA exempts
from mandatory disclosure trade secrets and confidential commercial
or financial information. 5 U.S.C. Sec. (b)(4). Exemption 5 of FOIA
protects ``deliberative'' and pre-decisional'' information generated
by the government from mandatory disclosure. 5 U.S.C. Sec. (b)(5).
The Department of the Interior has cited FOIA Exemption 4 to
withhold from the public the same type of information whose release
is barred by the Trade Secrets Act (see above). BLM, Instruction
Memorandum No. 95-85, pp. 2-4 (9 March 1995).
The Department of the Interior has also characterized certain
types of information related to patent applications and mineral
reports as ``predecisional'' and thus properly protected by FOIA
Exemption 5. Instruction Memorandum, supra, p. 3. Under a broad
reading of Exemption 5, any mineral report not yet approved for
patent issuance could be considered ``pre-decisional'', and
therefore protected from mandatory disclosure.
However, the FOIA Exemptions 4 and 5 would not prevent the
release by Federal land agencies of ``confidential'' commercial
information or ``predecisional'' material related to patenting. That
is because the FOIA does not bar the release of any information by
the Federal Government. Instead, the FOIA only permits government
officials, at their discretion, to withhold certain types of
information from the public.
Since the Patenting Disclosure Regulations would have the
authority of law, as demonstrated above, the government would be
required to release material in patent applications and mineral
reports that the government has previously withheld as
``confidential'' commercial information or ``Pre-decisional''
material. Thus, the Secretary's adoption of the Patenting Disclosure
Regulations would remove any withholding discretion that Government
officials may possess under FOIA Exemptions 4 and 5.
The Department of the Interior's invoking of Exemption 5, to
withhold ``pre-decisional'' information related to patenting
issuance, is less than convincing, since the main purpose of the
FOIA Exemption 5 is to ``safeguard the policy-making process.'' A
Citizen's Guide On Using the Freedom of Information Act and the
Privacy Act of 1974 To Request Government Records, H.R. Rep. No.
199, 100th Cong., lst Sess. 13. To the contrary, in other contexts,
the Department has asserted that patent issuances are merely
``ministerial acts'', which involve a minimum of policymaking and
discretion. State of S.D. v. Andrus, 614 F.2d 1190 (1980); United
States v. Kosanke Sand Corp., 80 I.D. 538 (1973). The Department
cannot have it both ways. Because the information petitioners seek
to have disclosed is the basis for a process which the Department
itself has described as ``ministerial'' or ``non-discretionary'',
the Department should not assert FOIA Exemption 5 as grounds for
keeping it confidential.
VI. Equitable Impact of Patenting Disclosure Regulations on 1872 Mining
Law Patent Applicants
Current and potential 1872 Mining Law patent applicants may
contend that the Patenting Disclosure Regulations, if adopted, would
cause them compensable harm, because the Regulations would
effectively prevent them from patenting. Applicants may argue, for
example, that requiring public disclosure of information that the
applicants wish to be held confidential would make applicants so
reluctant to patent, that patenting would be impossible.
However, these proposed regulations would not cause these patent
applicants a compensable harm, because they would not remove
applicants' right to patent--Under the regulations, holders of
mining claims can still patent - but only subject to the condition
of clearer disclosure requirements.
In addition, the holder of unpatented mining claims who opts not
to patent can still mine and enjoy financial benefits from his
claim. Therefore, the claimholder's ``right of use, enjoyment, and
disposition in his unpatented mining claims remains undiminished.''
Freese v. United States, 639 F.2d 754, 758 (Ct. Cl. 1981). Because
the proposed regulations would not deprive claimholders of any
valid, pre-existing rights in their property, they would suffer no
compensable harm. Id. at 758.
Furthermore, the Patenting Disclosure Regulations' transition
procedures, described above, mitigate any possible inequities that
pending patent applicants may suffer as a result of the Regulations'
adoption. The Patenting Disclosure Regulations would not mandate
immediate disclosure of information that patent applicants have
submitted to public land agencies in the reasonable expectation that
it would be held confidential. Instead of subjecting patent
applicants to the possible hardships of immediate disclosure, the
Patenting Disclosure Regulations would establish a reasonable
transition period that would be fair to all applicants. The
transition period will give applicants the time to conform to, or
opt out of, the new public disclosure regime that the Regulations
would establish. The transition period will give patent applicants
who do not wish to have their patenting information disclosed the
opportunity to withdraw their applications, and thus avoid
disclosure of valuable commercial information that could benefit the
applicants' market competitors.
VII. The Urgent Need for Patenting Disclosure Regulations
The current moratorium on processing and issuing mining patents,
in effect since 1 October 1994, does not diminish the urgent need
for improved patenting disclosure regulations. The current
moratorium contains a generous grandfather provision which allows
the continued processing of approximately 360 patent applications.
Without the adoption of Patenting Disclosure Regulations, these
patents will likely continue to be issued in secrecy and without
effective public scrutiny.
[[Page 42412]]
Furthermore, the current patenting moratorium is only temporary.
The moratorium will expire on 30 September 1996. If the moratorium
is not renewed, 235 frozen patents can be processed and issued, and
new patenting applications can be filed. Unless current law is
changed, billions of more dollars in mineral wealth will slip away
from the public without proper accountability.
The BLM's continued liquidation-price sales of mineral-rich
public lands to grandfathered applicants demonstrates the compelling
need for Patenting Disclosure Regulations. Since 1994, the
Department of the Interior has signed over title to public lands
containing over $15.3 billion in minerals to mining companies for
the price of only $16,015. The Department issued two patents only
last month. The more egregious of the two was the BLM's 30 April
sale of 373 acres of public land in Humboldt County, Nevada, to Gold
Fields Mining Corporation. Gold Fields paid only $1,865 for a gold
deposit worth over $1 billion.
Meanwhile, the BLM persists in conducting the patenting process
in secrecy and without public scrutiny. Over the past few years, BLM
officials have repeatedly refused to disclose to lead petitioner
Mineral Policy Center, in response to requests for information,
facts which are needed for an informed evaluation of the patenting
process. Most recently, for example, at 10 am (EST) on 28 May 1996,
Roger Haskins, Geologist, Solid Minerals Group of the BLM
Headquarters in Washington, D.C., refused to disclose to Mineral
Policy Center the information enumerated in section II(A) above in
connection with Cambior Inc.'s patent applications for its Carlota
Copper Project near Globe, Arizona. Haskins informed Mineral Policy
Center that this information was either being held confidential in
deference to the wishes of the patent applicant or was pre-
decisional in nature, and that therefore the BLM could not release
the information to the public. Telephone communication between Roger
Haskins, BLM, and Carlos Da Rosa, Mineral Policy Center (10 am
(EST), 28 May 1996).
In sum, Patenting Disclosure Regulations are necessary to
provide for effective public scrutiny of a process that is presently
undermining fiscal soundness and the rational environmental
management of America's public lands.
VII. Conclusion
The Department of the Interior has disposed of approximately
one-quarter trillion dollars of publicly-held mineral resources for
nominal sums under the 1872 Mining Law's mineral patenting
provisions. The results have been both fiscally and environmentally
irresponsible.
The petitioners recognize that the Department of the Interior is
still required to process grandfathered 1872 Mining Law patent
applications. However, the law does not require that the patenting
process be conducted in secrecy.
The public is entitled to full access to the information upon
which the Department of the Interior bases its decision to dispose
of the public's riches under this policy. Therefore, the petitioners
respectfully urge the speedy granting of this petition. Thank you
for your consideration.
Respectfully submitted by:
/s/Philip M. Hocker,
Mineral Policy Center.
/s/Rebecca R. Wodder,
American Rivers.
/s/Lynne Stone,
Boulder-White Clouds Council.
/s/Michael Clark,
Greater Yellowstone Coalition.
/s/Cathy Carlson,
National Wildlife Federation.
/s/Kathryn Hohmann,
Sierra Club.
/s/Roger Flynn,
Western Mining Action Project.
/s/Deborah Ham,
Citizens for the preservation of powers Gulch and Pinto Creek.
/s/James D. Jensen,
Montana Environmental Information Center.
/s/Julia Page,
Northern Plains Resource Council.
/s/Jill Lancelot,
Taxpayers for Common Sense.
/s/Pat Sweeney,
Western Organization of Resource Councils.
[FR Doc. 96-20824 Filed 8-14-96; 8:45 am]
BILLING CODE 4310-84-P
