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» NWMA Comments on USFS proposed Section 261 Rule changes

Northwest Mining Association Comments

on USFS proposed Section 261 Rule changes

July 3, 2007

Forest Service, USDA
Attention:
Director, Minerals and Geology Management (MGM) Staff (2810)
Mail Stop 1126
Washington, DC 20250-1126

Re: Proposed Amendments to 36 CFR 261.2 & 261.10 F2 Fed. Reg. 26578

Northwest Mining Association (NWMA) is a 112 year-old, 1,650 member non-profit, non-partisan trade association based in Spokane, Washington. Our members reside in 33 states and are actively involved in prospecting, exploring, mining, and reclamation closure activities on USFS administered land. Our membership represents every facet of the mining industry, including geology, exploration, mining, engineering, equipment manufacturing, technical services, legal services, and sales of equipment and supplies. Our broad-based membership includes many small miners and exploration geologists, as well as junior and large mining companies. More than 90% of our members are small businesses or work for small businesses.

NWMA’s members have extensive knowledge of the General Mining Laws of the U.S., the 36 CFR 228A and 261 regulations, the Surface Resources Act of 1955, administrative and judicial decisions interpreting those laws, and the issues raised in the proposed rule.

We are aware of case law that supports the Forest Service using 36 CFR 261 for enforcement of its 36 CFR 228A mining regulations in certain circumstances. However, we also are aware of many cases where the Forest Service has inappropriately or illegally used this enforcement regulation. We believe the 261 rule, as proposed, will only increase the potential for misuse by overzealous Forest Service officers and complicate things further for the Forest Service and miners. Thus, we believe the rule needs additional changes and submit the following comments explaining those needed changes.

The Forest Service needs to make it very clear in the proposed rule that for a miner to be charged under 36 CFR 261, the Forest Service must first demonstrate that the miner has violated 36 CFR 228 Subpart A. Thus, the 261 regs need to explain more fully that the phrase added at sections 36 CFR 261.10 (a), (b), and (p) “. . . approved operating plan when such authorization is required” severely restricts Forest Service use of 36 CFR 261 against miners because 261 cannot be used unless the Forest Service first demonstrates that there is a violation of 36 CFR 228A and that a Plan of Operations is required.

The Forest Service also needs to explain in the proposed 261 rule under what circumstances it will use criminal enforcement measures and when it intends to use civil measures. The Forest Service should further explain how the Forest Service Manual (FSM) policy direction fits into this determination, and how the agency will monitor, manage, and restrict rampant abuse by untrained, unqualified and/or hostile Forest Service officers of the criminal citation procedures against miners. At FSM 2817 and elsewhere, the Forest Service commits to only having certified qualified minerals’ administrators and inspectors involved in determining when an operation is in compliance.

2817. Inspector Qualifications. Inspection shall be conducted by Forest officers who are familiar with the equipment and methods needed to find and produce minerals and who can accurately assess the significance of surface resource disturbance. Inspectors should be capable of identifying those activities of an operator which are reasonably necessary to the operation, which ones could perhaps be done differently with less effect on surface resources without endangering or hindering the operation, and which ones are unreasonable or unnecessary.

Consistent with this policy, the proposed amendment to 36 CFR 261 should require a Forest Service law enforcement officer to work only with, and rely upon, an official Forest Service Certified Minerals Administrator to determine and document that an operation is in violation of 36 CFR 228A prior to issuing a violation notice under 261 (emphasis added).

The Forest Service also should explain how it intends to reconcile its use of 36 CFR 261 with the noncompliance procedures already existing at 36 CFR 228.7 (as well as a miner’s appeal rights and the appeal procedures at 36 CFR 251):

Sec. 228.7 Inspection, noncompliance.

(a) Forest Officers shall periodically inspect operations to determine if the operator is complying with the regulations in this part and an approved plan of operations. (b) If an operator fails to comply with the regulations or his approved plan of operations and the noncompliance is unnecessarily or unreasonably causing injury, loss or damage to surface resources the authorized officer shall serve a notice of noncompliance upon the operator or his agent in person or by certified mail. Such notice shall describe the noncompliance and shall specify the action to comply and the time within which such action is to be completed, generally not to exceed thirty (30) days: Provided, however, that days during which the area of operations is inaccessible shall not be included when computing the number of days allowed for compliance.

Note that the above regulation requires a miner to be served notice prior to the FS taking an enforcement action. Since this notice is a Forest Service decision, consistent with 36 CFR 228.14, a miner should be given an opportunity to appeal it under 36 CFR 251. In addition, FSM 2817 requires the Forest Service, except in emergency circumstances, to work with the miner to secure willing compliance, then issue a notice of noncompliance, and then give appeal rights prior to taking action. How does the Forest Service intend to reconcile these requirements with the 36 CFR 261 procedures?

2817.3 – Inspection and Noncompliance

1. Under Approved Operating Plan. When activities are being conducted under an approved operating plan, regular compliance inspections must be conducted to ensure reasonable conformity to the plan and to guard against unforeseen detrimental effects. The frequency, intensity, and complexity of inspection shall be commensurate with the potential for irreparable and unreasonable damage to surface resources.

2. Without Operating Plan. When operations are being conducted without an operating plan because it was determined none was required, the need for regular inspections shall be determined on a case-by-case basis. Timely inspections shall help assure conformance to the environmental protection requirements of the regulations, as well as identify operations that vary from those described in the notice of intention and which may require an operating plan.

3. Detection. Forest officers shall make note of, and report all operations for which there have not been submitted either notices of intention to operate or operating plans. Such operations shall be identified and inspected as soon as practicable to determine if a plan of operations or a notice of intent is required.

4. Inspector Qualifications. Inspection shall be conducted by Forest officers who are familiar with the equipment and methods needed to find and produce minerals and who can accurately assess the significance of surface resource disturbance. Inspectors should be capable of identifying those activities of an operator which are reasonably necessary to the operation, which ones could perhaps be done differently with less effect on surface resources without endangering or hindering the operation, and which ones are unreasonable or unnecessary.

5. Noncompliance. Wherever practicable, acts of noncompliance should be discussed with the operator, either in person or by telephone, in an attempt to secure willing and rapid correction of the noncompliance. Such discussions shall be made a matter of record in the operator’s case file. Where the operator fails to take prompt action to comply and the noncompliance is unnecessarily or unreasonably causing injury, loss or damage to surface resources, the authorized officer must take prompt noncompliance action. For direction to resolve unauthorized residential occupancy on mining claims. See FSM 2818.

a. Notice of Noncompliance. The first step in any noncompliance action is to serve a written notice of noncompliance to the operator or the operator’s agent, in person, by telegram, or by certified mail. This notice must include a description of the objectionable or unapproved activity, an explanation of what must be done to bring the operation into compliance, and a reasonable time period within which compliance must be obtained. Continued refusal of the operator to comply after notice will usually require enforcement action.

b. Enforcement Action. Civil or criminal enforcement, or a combination of both, are available for enforcement of 36 CFR 228. The decision on which procedure, or combination, to use shall depend upon the particular facts in each case and the probability of success and possible consequences. The Regional mineral staff or the local Office of General Counsel shall be consulted for advice prior to any enforcement action to ensure consistency and conformance with mineral law and regulation. The appropriate U.S. Attorney shall be consulted to coordinate the criminal and civil actions.

(1) Civil Action. Two types of civil relief in Federal District Court are available: damage recovery and injunctive. An action to recover costs of repairing damages or to compensate for irreparable damages would be appropriate for those cases where such damages have already occurred and no further operations were being conducted or likely to be conducted. Such damage suits require extended periods of time for completion. Injunctive relief can be obtained quickly when the facts of a particular case warrant such action. There must be strong justification that the party requesting relief is suffering or will suffer irreparable harm and that harm must usually be incompensible. Moreover, it must be likely that the complainant will actually succeed on the merits of the case.

(2) Criminal Action. In cases where unnecessary and unreasonable damage is occurring and where reasonable attempts fail to obtain an operating plan or to secure compliance with an approved operating plan, the operator may be cited for violation of the appropriate section of 36 CFR 261 or 262, according to existing delegation of authority.

The above quoted policy statement from FSM 2817.3 (5)b(2) commits the Forest Service to only using 36 CFR 261 where unnecessary and unreasonable damage is occurring, and where reasonable attempts to obtain compliance with the 36 CFR 228 Subpart A regulations have failed. This means the procedures at 36 CFR 228 Subpart A must be used first to evaluate and demonstrate the need for the Forest Service to take an enforcement action. To avoid premature use and/or misuse of 36 CFR 261, this FSM direction on when to use 261 against miners needs to be incorporated as part of the new proposed 36 CFR 261 regulation.

A good example of potential abuse is the fact that some Forest Service Regions have arbitrarily set a recreational camping time limit of 14 days for all forest users. We believe the Regions should be distinguishing between those users who are just recreationists and those who are miners operating under the General Mining Laws. If an operator asserts he is operating under the Mining Law, documents that he needs to camp at a site beyond 14 days to conduct activities reasonably incident to his mining operations, and shows that his activities are not likely to cause significant disturbance of surface resources, the Forest Service is obligated to consider the facts of the miner’s case prior to taking enforcement action under 36 CFR 261. In other words, the Forest Service must first demonstrate that the activity requires a Plan of Operations and does not qualify for an exemption to a notice of intent or plan of operations under 36 CFR 228.4(a) before using 36 CFR 261:

(1) A notice of intent to operate is not required for:

(i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes; (ii) Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools; (iii) Marking and monumenting a mining claim; (iv) Underground operations which will not cause significant surface resource disturbance; (v) Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caused by other users of the National Forest System who are not required to obtain a Forest Service special use authorization, contract, or other written authorization; (vi) Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources;

Furthermore, the definition of occupancy/residency is “over the top” and should be revised. Including “caves & cliff ledges” in the definition is ridiculous and unnecessary.

The proposed rule should clarify that under the Mining Laws one may “use & occupy” National Forest lands under a Notice as long as the use and occupancy is reasonably incident to prospecting, exploring, mining and processing, and there is no significant disturbance of surface resources.

Finally, the proposed rule should clarify that the special use regulations do NOT apply to locatable mineral activity on National Forest lands.

Sincerely,

Laura Skaer Executive Director

LS/kw

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