Code of Federal Regulations

TITLE 36–PARKS, FORESTS, AND PUBLIC PROPERTY

CHAPTER II–FOREST SERVICE, DEPARTMENT OF AGRICULTURE

PART 228–MINERALS–Table of Contents

Subpart A–Locatable Minerals

Sec. 228.3 Definitions.

For the purposes of this part the following terms, respectively, shall mean: (a) Operations. All functions, work, and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto, including roads and other means of access on lands subject to the regulations in this part, regardless of whether said operations take place on or off mining claims.
(b) Operator. A person conducting or proposing to conduct operations.
(c) Person. Any individual, partnership, corporation, association, or other legal entity.
(d) Mining claim. Any unpatented mining claim or unpatented millsite authorized by the United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et seq.).
(e) Authorized officer. The Forest Service officer to whom authority to review and approve operating plans has been delegated.

Sec. 228.4 Plan of operations–notice of intent–requirements.

(a) Except as provided in paragraph (a)(2) of this section, a notice of intention to operate is required from any person proposing to conduct operations which might cause disturbance of surface resources. Such notice of intention shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. If the District Ranger determines that such operations will likely cause significant disturbance of surface resources, the operator shall submit a proposed plan of operations to the District Ranger.
(1) The requirements to submit a plan of operations shall not apply:
(i) To operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest purposes,
(ii) To individuals desiring to search for and occasionally remove small mineral samples or specimens,
(iii) To 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,
(iv) To marking and monumenting a mining claim and
(v) To subsurface operations which will not cause significant surface resource disturbance.
(2) A notice of intent need not be filed:
(i) Where a plan of operations is submitted for approval in lieu thereof,
(ii) For operations excepted in paragraph (a)(1) of this section from the requirement to file a plan of operations,
(iii) For operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve the cutting of trees. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations and the method of transport. If a notice of intent is filed, the District Ranger will, within 15 days of receipt thereof, notify the operator whether a plan of operations is required.

 

 

PART 228–MINERALS Subpart A–Locatable Minerals 0 1. The authority citation for part 228 continues to read as follows: Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 551); 41 Stat. 437, as amended sec. 5102(d), 101 Stat. 1330-256 (30 U.S.C. 226); 61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914, as amended (30 U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C. 611); and 94 Stat. 2400. 0 2. Amend Sec. 228.4 to revise paragraph (a) to read as follows:

Sec. 228.4 Notice of intent–plan of operations–requirements.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.

(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 [[Page 32732]] 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; or (vii) Operations for which a proposed plan of operations is submitted for approval;

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.

(3) An operator shall submit a proposed plan of operations to the District Ranger having jurisdiction over the area in which operations will be conducted in lieu of a notice of intent to operate if the proposed operations will likely cause a significant disturbance of surface resources. An operator also shall submit a proposed plan of operations, or a proposed supplemental plan of operations consistent with Sec. 228.4(d), to the District Ranger having jurisdiction over the area in which operations are being conducted if those operations are causing a significant disturbance of surface resources but are not covered by a current approved plan of operations. The requirement to submit a plan of operations shall not apply to the operations listed in paragraphs (a)(1)(i) through (v). The requirement to submit a plan of operations also shall not apply to 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 will likely cause a significant disturbance of surface resources.

(4) If the District Ranger determines that any operation is causing or will likely cause significant disturbance of surface resources, the District Ranger shall notify the operator that the operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved. * * * * * Dated: May 31, 2005. David P. Tenny, Deputy Under Secretary, NRE. [FR Doc. 05-11138 Filed 6-3-05; 8:45 am] BILLING CODE 3410-11-P

 

 


SECOND QUARTER, JUNE 2004 VOLUME 18, NUMBER 4

 

All members should read this, because it is important to be aware that our operational guidelines have changed in several areas in response to important fishery issues that have been raised by state and federal agencies, the local Native American tribe and various environmental advocacy groups.

As most members are aware, we pay very close attention to what is happening around us and to the important events occurring within our industry that could have an impact upon our activity. A federal court decision a year ago (United States Eastern District Court of California; US v. Ronald O. Lex and Kenneth Waggener; No. CR S-01-559 LKK; May 14, 2003) that was decided against the U.S. Forest Service on behalf of some miners on the South Fork of the Salmon River has caused substantial confusion about how prospecting and mining activity and related occupancy (camping) should be managed on the forest.

An ongoing group of lawsuits between the miners, Forest Service and environmentalists in Southern Oregon is adding to the confusion and uncertainty until such time as there is a decision from the federal Court in those cases.

The 9th Circuit Court of Appeals has just confirmed a lower federal Court’s decision to withdraw the Coho salmon from the endangered species list in Oregon. There is a nearly identical lawsuit pending in the very same Court right now to eliminate the Coho salmon from the endangered species list in Northern California, which my advisors are believing will be successful very soon.

In short, there are many legal issues in flux at the moment; too many to review in this newsletter. And it is very difficult to predict how it will all come out, or how our program will be affected. In view of this, last September, we hired a very experienced consultant to begin helping us to coordinate with the Forest Service, the local tribe, various State agencies and local environmental groups to identify any critical concerns others might have about our activity, and try to find solutions that will allow us to continue operations with minimal negative impacts, while the bigger issues are being worked out in courtrooms across the west.

Because we have access to so much mining property, we are in a position to cooperate (rather than resist) when there are specific concerns that are important to others who have an interest in the forest.

Most of our active members prospect on a very small scale. Therefore, historically, we have negotiated formal mining programs with the Forest Service that covered all of the activities taking place along our claims within a published set of Operation Guidelines. You guys know them as “The Rules.” The Club then took the responsibility to generally manage our internal affairs so that all of the individual members were operating within the guidelines we had agreed to with the Forest Service and other State and federal agencies. These “group programs” have worked out well during the past 18 years. I am not aware of a single violation the Club has ever been cited for to this day.

It is important to understand that because we are a group of miners, we are not looked upon quite the same as a single, independent mining operation. On the one hand, we have substantial internal management that is very active in preventing abuse and/or negative impacts. The various agencies and groups we are dealing with all acknowledge this. On the other hand, the unknown factor of how many members could show up at the same time and pursue mining operations in a given area makes it difficult for the Forest Service to sign off on a blanket plan or program without setting some limits. There needs to be a balance set between allowing and limiting the activity.

Believe me when I tell you that we have spent countless hours during the past 8 months trying to work out solutions that are in the best long-term interest of our members. As it is time to move forward with the season, the following guidelines will apply beginning immediately:

Klamath and Scott River, Indian, Elk & Thompson Creek Properties: We continue to have group programs in place as before, with the following additional restrictions:

1) No more than 10 dredges per mile on our mining claims along the Klamath and Scott Rivers.

2) No more than 3 dredges per mile on any of our creek claims.

3) On Elk Creek, between the mouth of East Fork of Elk Creek to Cougar Creek (near the 10-mile bridge), dredge holes must be back-filled to approximately the original contour of the streambed when the dredging is finished, because this is a well-used spawning area by Coho salmon. This affects portions of E-3 & E-4.

4) To protect the (very) important cold-water refuges (the places where most of the fish go to escape critically high temperatures in the Klamath during the summer months) at the mouths of tributaries along the critically-warm Klamath River, between June 15 and October 15, there will be no dredging in the following locations:

A. Within 500 feet of the mouth of Dillon Creek on K-27.

B. Within 500 feet upstream and 1,500 feet downstream of Aubrey Creek (This area is not on our claims).

C. Within 500 feet of the mouth of Swillup Creek (This area is not on our claims).

D. Within 500 feet upstream and 2000 feet downstream of the mouth of Ukonom Creek. This is an inaccessible area (deep canyon) of rapids at the upper end of our K-25A claim.

E. Within 500 feet of the mouths of Elk, Little Grider and Indian Creeks on K-22.

F. Within 500 feet of Cade Creek at the upper end of K-20.

G. Within 500 feet of the mouth of O’Neil Creek at K-10, except that dredging is allowed below the major rapids that are downstream of the mouth.

Now let’s please put this into the proper perspective. We are in a position to make concessions that help to protect important fishery resources, because we have so much mining property that is available to our members. We possess the mineral rights to 35 miles of mining properties along the Klamath River, not to mention what we have on the Scott & Salmon Rivers and Elk, Indian and Thompson Creeks.

As we move forward in trying to find our way in harmony with ever-increasing environmental concerns, it is a reasonable strategy to spread ourselves more carefully over a larger area. As we identify the areas that we should avoid disturbing in order to protect important resources, we can acquire more mining property in other areas. That is what we have been doing. This is a win-win strategy that allows our members increased opportunity to mine in a manner that is more user-friendly to the environment.

We have already added 3 miles of new claims for our members to work this year. More will be available soon.


Salmon River Properties

There are too many issues along the Salmon River for us to put a group program in place for motorized mining activity this season, without having to make so many concessions that members would end up with less mining opportunity than independent miners on the river. That is unacceptable. Believe me when I say that everyone involved (dozens of people from State and federal agencies, tribal, local groups and our organization) have tried very hard to work out a group program similar to what we have along the Klamath River. But we could not come up with any program this season that would work nearly as well as allowing members the freedom to file your own individual Notices with the Forest Service.

The issues are too complex to explain in this newsletter. Let me just say that because of them, it is much, much easier for the Forest Service to approve an individual dredger along the Salmon River, than it is for them to give a blanket approval to some unknown quantity of dredgers that could potentially all show up at the same time.

Therefore, the Club is not going to manage a group mining program along the Salmon River this season. Members do continue to have the right to keep any and all of the gold you recover from the claims we possess along the Salmon River.

However, the methods by which you locate and extract the gold along the Salmon River will be a surface management relationship directly between you and the Forest Service. This is something new; because always in the past, the Club negotiated a group program for all members who were prospecting or mining within a specific set of guidelines.

It is difficult to say, because we are breaking new ground here; but my guess is that the operational guidelines that will be acceptable to the Forest Service along the Salmon River for individual miners will probably not be much different than what they have been for our approved group activity. Those are reasonable guidelines that have been worked out over the years. We still use them as part of our program along the Klamath and its other tributaries.

As the Club will not manage a group program along the Salmon River this season, it is important for members to understand that if you intend

to mine for gold along our Salmon properties, you are on your own in the requirement to meet the regulatory requirements of the Forest Service. If you would prefer to avoid this relationship, then I suggest you prospect on the 53 miles of mining property that is available to you through the Club along the Klamath & Scott Rivers and Indian, Elk and Thompson Creeks, where we have group programs in place.

For those who will mine along the Salmon River, a Notice of Intent to conduct mining operations is the method of letting the Forest Service know what your intentions are. There is not any specific format that is required for a Notice. It can even be accomplished in the form of a letter to the District Ranger who manages the area of forest where you wish to mine.

As with any government regulations, each different person you talk to (even within the Forest Service) has his or her own interpretation about what the regulations mean. This is particularly true concerning the threshold level of when a prospector or miner is required to give any notice whatsoever to the Forest Service about his or her activities.

If you would prefer to avoid this relationship, then I suggest you prospect on the 53 miles of mining property that is available to you through the Club along the Klamath & Scott Rivers and Indian, Elk and Thompson Creeks, where we have group programs in place.

Therefore, I am enclosing some source materials that are distributed by the Forest Service concerning the requirements and thresholds whereby Notice is required. You can read them and make your own interpretation. This is the best way.

While we are on that subject, let me just quote from a section of the U.S. Code of Federal Regulations:

“Notice of Intent Requirements; 36 CFR 228.4(a) – Locatable Minerals: Sec.228.4 (a) (2) “A notice of intent need not be filed: (iii) For operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve the cutting of trees.”

The Federal Court in Lex & Waggener (case site above) recently spoke on this subject:

“It was uncontested at trial that, at the time the appellants were camping, neither their mining operations nor their camping activities incident to those operations involved any earthmoving equipment or cutting of trees. Thus, under the regulations, until appellants determined that their operations would involve the use of earthmoving equipment or tree-cutting, they were under no obligation to file a notice of intent.”

Lex & Waggener involved a citation the Forest Service (Salmon River) issued to some miners who were camping on their mining claim. They were cited because they had exceeded the regulatory 2-week camping limit the Forest Service imposes upon normal visitors in the forest. The Federal Court spoke very clearly on this subject:

“As the regulations are currently structured, so long as no earthmoving or tree- cutting is involved, a miner can camp on his claim indefinitely, despite the environmental impact that such activity may have.”

Lex & Waggener is a published federal decision that was not appealed by the Forest Service. As I understand it (although I am not a licensed attorney), it is controlling case law on these subjects within the Klamath National Forest. In view of these circumstances, we are in the process of putting this important recent decision up on our web site – and our office will send out a copy to any member wishing to do some homework on your own.

This having been said, I should advise you that each person you speak with within the Forest Service will continue have his or her own (and often different) interpretation of what it all means, especially from one Ranger District to the next.

It is the interpretation of the District Ranger in charge of each District that is the most important to understand. Because, while you and I and the Ranger might each disagree about what the Notice threshold ought to be, I believe we can all agree that we would like to cooperate with each other to make your time in the forest an enjoyable one, rather than one of dispute and confrontation.

The Club’s management strategy has always been to try and find a compromise that everyone can live with.

Since your prospecting or mining operations along the Salmon River are something to work out between yourself and the Ranger(s), I cannot tell you how to manage these affairs. All I can do is suggest that you make contact in advance and do your best to cooperate with their requests. I suppose if there are major disagreements over what is required that cannot be worked out through compromise, it will ultimately be necessary for a judge to make the final determination. In that event, you can expect the Club to put our resources behind the effort to preserve the rights of miners. That would be our duty.

Whatever else they might require Notice for, I know from previous discussions that the Rangers are requesting Notice from independent miners along the Salmon River who:

1) Operate suction dredges or mechanized earth moving equipment.

2) Use a motorized water pump to process materials outside of the existing waterway.

3) Camp for longer than 14 days within a single District.

The Salmon River involves two separate Districts. As members, you have access to mining claims on both of them. If you decide that Notice is required for what you intend to do, the Notice should be sent to the District office which manages the area where you intend to operate:

Orleans District; P. O. Box 410, Orleans, CA 95556 (530) 627-3291
(Mining claims within Orleans District: SA-1, SA-2, SA-2A, SA-3 & SA-4)

Acting District Ranger, Joyce Thompson:
Minerals Officer, Leslie Burrows

Salmon River Ranger District; 11263 N. Hwy 3, Fort Jones, CA 96032 (530) 468-5351
(Mining claims within Salmon River District: SA-5, SAN-2, SAN-4 & SAN-6)

District Ranger, Chance Gowan
Minerals Officer, Carmen Brownell

All of our mining claim locations and individual maps are accessible from our web site. In the event that you do not have Internet access, the office in Happy Camp can provide you with individual maps to support any Notices you decide to file with the Forest Service.

All of the operational changes listed above will be incorporated into the Club’s Operational Guidelines, claims guide information, and the other written materials we publish. Before starting your prospecting or mining activity along any of the Club’s claims, please contact the office for the latest claims guide information about the areas of your interest. They are updated on a regular basis to reflect any changes as they occur.

Kind regards,

Dave McCracken,
General Manager

 

By Michael Burnside, June 17, 2005

In 1897, Congress passed the Organic Act, which established the National Forest System and the purposes for which it would be managed. In regard to mining, the 1897 Act said that while the Forest Service couldn’t prohibit activities reasonably incidental to mining under the 1872 General Mining Law, the Forest Service was authorized to create reasonable rules to regulate the adverse effects of mining activities on the National Forests, and miners had to comply with those rules. In 1974, the Forest Service finally wrote those regulations. Since 1974 was the first attempt at rule making to oversee the surface effects of mining, the rules had imperfections and there were concerns over the years about their interpretation and application. But the Forest Service was largely consistent in how it interpreted them and in the manual direction it issued to apply its 36 CFR 228A regulations to minimize adverse environmental impacts from mining activities. In short, the Forest Service logically focused on the likely impacts of proposed mining activities, and required miners to submit plans of operations for all activities which would likely cause significant surface disturbance, regardless whether those activities involved mechanized earth moving equipment or the cutting of trees.

Activities which do not necessarily involve mechanized earth moving equipment or the cutting of trees could include construction of ore processing mills and mill sites; residential construction and occupancy; major hand excavation of holes, trenches, and pits in stream areas; road and bridge construction; disposal of mine tailings and other wastes; signing and fencing to restrict public use; diversion of water; and use of sluice boxes; storage of vehicles; and off highway vehicle use. While none of these activities may involve mechanized earth moving equipment or cutting of trees, they obviously could cause significant surface disturbance. Inability of the Forest Service to regulate such activities could result in significant impacts to NFS lands and resources and would violate the stated purpose of the 36 CFR 228A regulations to minimize adverse effects from mining. Numerous court decisions over the years, including 1981 US v. Weiss; 1989 U.S. v. Doremus; 1986 U.S. v. Brunskill; and 1990 U.S. v. Burnett; had upheld the Forest Service’s authority to apply its regulations in this manner and for this purpose.

In 2003, the judge who issued the Lex decision focused on the wording in one section of the Forest Service’s 1974 regulations and interpreted it in a manner that was directly contrary to how the Forest Service had been historically interpreting its regulation. In summary, the Judge said that based on the words the Forest Service had used in its regulations in 1974, it could not regulate operations which do not involve the use of mechanized earth moving equipment, such as bulldozers and backhoes, or cutting of trees.

As indicated previously, if this 2003 judicial interpretation of the 1974 rule had been allowed to stand, it would have overridden other language in 36 CFR Part 228 Subpart A which required miners to file a plan of operations for significant surface disturbing activities. The Lex court’s interpretation of the Forest Service’s rules conceivably could have allowed construction and operation of mills; deposition of tailings and mine waste; construction and occupation of residencies and buildings; and a long list of other examples, all without Forest Service oversight or bonding. The effect of such a broad exemption would have been contrary to Forest Service statutory authority and obligation to regulate mining on National Forests, and almost certainly would have caused a major adverse public reaction to such unregulated mining activities on public lands.

The judge who wrote the Lex decision was sympathetic with the dilemma his decision placed upon the Forest Service. The court referenced the Forest Service’s continuing authority to write regulations, and suggested that the Forest Service modify the 36 CFR 228 A regulations to fix the situation. Rather than appeal the Lex decision, which was indeed an option, the Forest Service believed the better long term solution was to do as the judge suggested and revise its regulation, which resulted in this final rule. The Forest Service used this situation as an opportunity to clarify its rules and address issues raised in the extensive public comment on the rule.

The June 6, 2005, Federal Register notice with the new rule at 36 CFR 228.4(a) and its Preamble contains several things that miners in general and small operators in particular should take note of:

1.) The Rule has been reorganized to make it flow more logically and to parallel the progression of activities from low impact or no impact to those requiring a plan of operations.

2.) The Preamble acknowledges that there is some confusion about how these regulations apply to “recreational miners”, and that some opponents to suction dredging assert that recreational mining is not legal under the mining law. The Forest Service makes it clear in the Preamble that it does not matter how operations are described, whether as recreational or commercial. As long as the operations are all reasonably incidental to mining, the same rules apply to all miners.

3.) Some members of the public have argued that a plan of operations should be required for any suction dredging operations and some miners have argued that suction dredging should be exempt from a Notice of Intent or a Plan of Operations. The Preamble explains that a “one size fits all” determination cannot be applied to suction dredging, and it must be made on a site-specific basis because of the great variability in circumstances and resource sensitivities on National Forests. Therefore it is possible that in some settings, a suction dredge operation may be exempt (perhaps under 228.4(1)(vi)) from needing a notice of intent or plan of operations and other circumstances where a Plan would be necessary if the operation would likely cause a significant surface disturbance.

4.) The new rule does not change bonding or other enforcement provisions available to the Forest Service against miners. Those remain the same as they have always been.

5.) The Preamble explains these regulations do not preclude or conflict with California State suction dredging permits, and that the state and federal permitting can and should be read together.

6.) The Forest Service has committed in the Preamble to train Forest Service mineral administrators to insure consistent interpretation and application of this new rule. In addition, the Chief of the Forest Service issued separate guidance in November 2004 that all mineral administrators must become trained and certified in the application of these regulations.

7.) The Preamble clarifies that the term “significant” as used in 36 CFR 228A is NOT used in the same way as under the National Environmental Policy Act (NEPA). The Preamble also explains the standard for determining significance under 36 CFR 228A. Any District Ranger’s decision that a proposal “…will likely cause significant disturbance of surface resources…” must be (1.) demonstrably based on past experience, direct evidence, or sound scientific projection; that would (2.) lead the District Ranger to reasonably expect the proposed operation to result in impacts to National Forest System lands that would need to be avoided or mitigated by reclamation, bonding, timing restrictions, or other measures to minimize adverse effects.

8.) The Preamble explains that stream beds in National Forests which have been adjudicated and determined to be navigable when the particular State entered the Union are exempt from Forest Service regulations. All others are subject to Forest Service regulation. Forest Service Regional Offices or the appropriate states should be able to provide a list of those streams.

9.) The Preamble explains that in spite of the original wording in the 1974 rule stating a Notice of Intent must be filed for any disturbance, careful research of the record for the 1974 rule revealed there was never any intent to require Notices of Intent for all activities which might cause a disturbance. The original intent was to require a Notice of Intent for only those operations which might (but are not likely to) cause SIGNIFICANT disturbance to surface resources and thus might require the filing of a Plan of Operations. Therefore, this final rule was changed to include the word “significant” in the context of requiring a Notice of Intent. Only operations; which might cause significant disturbance now require the filing of a Notice of Intent.

The Preamble also emphasizes that a Notice of Intent is not a regulatory instrument, permit, or “mini-plan”. A Notice of Intent is simply a notice the operator provides to the Forest Service to alert them and to help the process along, since it is in both their interests to do so.

10.) The Preamble clarifies that the trigger for a Notice of Intent is an operator’s reasonable uncertainty as to the significance of the disturbance the proposed operations will cause on National Forest System resources. If an operator reasonably concludes operations will not cause significant disturbance of NFS resources, the operator is not required to submit an NOI or POO.

The District Ranger may disagree with this and require a Plan of Operations. However, the Ranger’s decision must be based on past experience, direct evidence, or sound scientific projects that would lead the Ranger to reasonably expect the proposed operation to result in impacts to National Forest System lands that would need to be avoided or mitigated by reclamation, bonding, timing restrictions, or other measures to minimize adverse effects. Under Forest Service appeal regulations, an operator would have the right to challenge this decision.

11.) The new rule clarified and added to the list of activities exempt from filing Notices of Intent or Plans of Operation, including the following:

a.) Under the new rule, vehicle use on existing roads, removal of small mineral samples, marking and monumenting claims, and underground operations which will not cause significant surface resource disturbance, will continue to not require an NOI or POO.

b.) The new rule added specifics to the exemption from filing a Notice of Intent or Plan of Operations at 228.4 (a)(1)(ii). Gold panning, non-motorized hand sluicing, battery operated dry washers, metal detecting, and collecting of mineral specimens using hand tools have been added.

c.) The Preamble clarifies the wording in this exemption about removal of a “reasonable amount of mineral deposit for analysis and study” to mean removal of amounts consistent with commonly accepted standards for taking stream sediment samples such as those listed in the U.S. Bureau of Mines publication, “Standard Procedures for Sampling” (sample size of 200 gms.), and Peter’s “Exploration and Mining Geology” (50 to 100 gms. every 50 to 100 meters). Peters recommendation for hard rock samples is 500 gm. to 2 kg. in size.

d.) The final rule also includes a new exemption to insure that miners are not treated to a different standard than other Forest users. It provides that miners are exempt from filing a Notice of Intent or Plan of Operations when their proposed activities have effects which are not substantially different from other non-mining activities for which no prior permission or authorization is required. If the Forest Service allows activities by other Forest users without requiring a permit, and those activities have the same effects as those conducted by miners, the miners’ activities should be exempted from an NOI or POO as well.

In summary, the discussion in the Preamble is well worth reading since it explains the background and proper interpretation and intent of this new rule.

 

MICHAEL J. BURNSIDE retired on June 3, 2005 after 27 years with the U.S. Forest Service. He was the Assistant Director of Minerals and Geology Management in Washington DC from 2003 to 2005, and led the Forest Service’s hard rock mining, abandoned mine lands, national minerals training, and the geology and ground water programs. Before moving to DC, he was Regional Mining Engineer for the Forest Service’s Northern Region in Missoula, Montana, where for many years he provided technical and legal leadership and assistance to the Northern Region’s National Forests in Montana, Idaho, and North Dakota on mining plans of operation, claim validity, and patent reports.

Prior to the U.S. Forest Service, Mike worked a number of years in base and precious metal exploration for Noranda Exploration, Inc. and Bear Creek Mining Co.; in petroleum exploration for Texaco Oil Co.; and in trona resource evaluation for the U.S. Geological Survey. Mike earned a B.A. in geology in 1970 and an M.S. degree in economic geology in 1974 from the University of Montana.

 

By Dave McCracken

On June 6th, the U.S. Forest Service (USFS) published its Final Rule on Section 228.4 in the Federal Register. Section 228.4 is concerned with when it is necessary for a miner or prospector to submit a Notice of Intent (NOI) or Plan of Operation (PoO) with the USFS.

For around the past 30 years, Section 228.4 has said that miners or prospectors only have to provide notice to the USFS of our activities when impacts upon the surface resources might become significant.

As a result of the judge’s interpretation of this language in the recent landmark case of Lex & Waggener, last summer, the USFS implemented an Interim Rule with new guidelines for Section 228.4. Many of us within the industry objected to the Interim Rule, because it basically said that a NOI was required whenever a miner or prospector would potentially create any surface disturbance on National Forest land.

The USFS allowed a public comment period after publishing its Interim Rule, and they had at least one public scoping meeting, which took place in southern Oregon. That meeting was sponsored by the Waldo Miners in Cave Junction, Oregon.

The full version of the notice in the Federal Register condenses the thousands of individual comments which the USFS received concerning the Interim Rule into common categories, and addresses each type of comment with a response. These formal responses will become important later, in the event there are questions about what was intended by the Final Rule.

Michael J. Burnside, who was the U. S. Forest Service Assistant Director of Minerals and Geology Management in Washington DC from 2003 to 2005, has presented us with a substantial explanation about the history behind and development of the Final Rule.

For those of you who are taking an interest in the reasoning behind how the Final Rule was created, or what it means, I strongly suggest that you read through the entirety of the notice with an open mind. The rational behind the Final Rule is substantial, so I will not repeat it here. Rather, I will go into of the main points which I feel are important to small-scale miners:

1) Small-scale miners objected strenuously to the “any surface impact” concept of the Interim Rule, basically arguing that the USFS should not waste its limited resources processing NOI’s from miners that were not creating a significant disturbance on Forest Service land. We also argued that miners or prospectors should not be burdened with a requirement to notify the USFS of activities which do not create a significant impact on surface resources. As a result, the Final Rule returned to the “significant disturbance” concept.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, left column: “If the operator reasonably concludes that proposed operations will not cause significant disturbance of NFS resources, the operator is not required to submit a notice of intent to operate.”

2) We also objected to the idea that miners or prospectors should be required to provide a NOI for any activity that may cause an impact upon Forest Service land that was similar to other users of the Forest that were not required to obtain any special-use authorization. Examples were given of the use of ATV’s, boats or rafts, camping and otherwise occupying the Forest while actively pursuing mineral exploration activities. As a result, the Final Rule specifically excludes from the NOI-requirement any prospecting activity which creates surface disturbances on par with other users of the forest who are not required to obtain special use authorization.

3) Within the comment-section of the notice, the USFS explains that they do not distinguish between commercial or, so-called, “recreational mining activity” or different types of mining clubs or groups. This position is consistent with our arguments that the mining law allows everyone equal rights to prospect on the public lands and lay claim to valuable minerals when they are discovered.

4) We complained that prospectors were having difficulty in some areas where the USFS was considering any prospecting activity a “significant impact;” even panning, metal detecting and non-motorized sluicing or dry-washing! As a result, the Final Rule specifically excludes these types of small-scale prospecting activities from the NOI requirement.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, right column: “However, it is possible to identify some category of which will never require the prior submission of a notice of intent to operate, and the Department agrees the final rule should identify those categories with more specificity as suggested by the respondents.”

These are activities that are specifically excluded from the need to ever file a NOI. It means that under no circumstances do panners, non-motorized sluicers or electronic prospectors need to file an NOI; they do not have to make any contact with the USFS for these types of activities.

This is very good for the lower Salmon River area, by the way. Most of the activity going on down there two seasons ago involved the panning very rich pay-dirt located within the exposed bedrock cracks and irregularities along the edges of the river. Now, there is no question that small-scale prospecting and short-term camping along our mining claims do not require any NOI to the USFS in advance of the activity.

5) Any other mineral-related activity which is not likely to cause significant impact is excluded from the need to file a NOI. This is good for the industry. Naturally, whether this includes motorized sluicing (high-banking) or dredging will depend upon the situation surrounding the location where the activity tales place.

While such activity in most cases (according to my own judgment) would not create a “significant impact,” the USFS reasoned within the comment-section of the notice that there is the possibility of significant impact in some circumstances (such as when there is critical habitat present which supports a listed species), so they could not categorically exclude motorized mining from the NOI requirement. But they also did not specifically make a NOI a requirement of these activities. The Final Rule says that the miner or prospector should provide a NOI if he or she reasonably concludes that there may be a “significant impact.”

I should point out that within the Karuk litigation, the USFS has taken the position that they have no authority over mineral-related activity on Forest Service land that is not creating a significant surface disturbance.

Some people are already misinterpreting the Final Rule, assuming that motorized sluicing and dredging requires a NOI, because they are not specifically on the list of exclusions. However, a careful reading of the Rule says that any type of mining activities only require a NOI where there is likelihood of “significant disturbance.”

6) No penal provision has been added to Section 228.4. If I have this right, this means that the USFS cannot write a criminal citation to a miner or prospector who fails to provide the USFS with a NOI or Operating Plan. For more information on this subject, I suggest you read what the judge had to say in the recent McClure decision.

Some would argue that the USFS should not have the discretion to decide what is, and what is not, a “significant surface disturbance” concerning mineral-related activities on Forest Service land. There are also several sub-sets of arguments along these lines, such as whether or not the USFS even has authority to regulate mining activity within the high-water marks of western rivers in the first place, and what constitutes a “navigable river.”

These arguments have also been raised (but I doubt they will be resolved) within the Karuk litigation.

Until those issues are resolved to everyone’s satisfaction within a court of law, it is clear that the USFS believes it has the authority to regulate mineral activity which results in a significant impact upon surface resources, and they are moving forward with the presumption that they do. Therefore, they are taking responsibility to manage small-scale mining activity in accordance with this Final Rule.

Some would argue that miners and prospectors should be allowed to do whatever we want. As nice as that might be, I don’t think that argument is supported by controlling case law. The general mining law supports us a great deal. But not so much that we can turn our backs upon the rest of the world. According to its own interpretation, the USFS is charged with the responsibility of balancing use of the public lands at issue here.

The potential for problems do exist (as will always be the case) where there may be a difference in opinion between the USFS and a miner or prospector over what constitutes a “significant surface disturbance.” My own interpretation is that if such disagreements cannot be resolved between the USFS and the miner (especially in the wake of the recent McClure decision), if the USFS feels so strongly about it that they want to stop the miner from pursuing his or her mining activity, the USFS will be required to prove its position to a civil court (this is acknowledged within the comment-section of the notice).

So in essence, it appears the USFS has the authority to decide, but they must be prepared to prove their position in court before they can finally prevent the prospecting activity. This seems like a pretty reasonable balance to me!

The Karuks are suing to prevent the USFS from allowing any mining under a NOI. That case will be decided around the end of June, 2005. The Interim Rule required a NOI for almost any prospecting or mining activity. The Final Rule requires a NOI only for activity that will create a significant surface disturbance. As the USFS has determined that most of our small-scale mining activity does not create a “significant impact,” I would say that this Final Rule has been published at a good time for us.

While we can debate amongst ourselves how much better the Final Rule might have been if we wrote the final language ourselves, we should not ignore how much worse it would have been if the USFS decided to hold onto the language contained within the Interim Rule! Or they might have even come up with something worse than the Interim Rule!

I suggest we might want to acknowledge that the USFS did pretty well here to balance competing interests while continuing to encourage mineral development – which is their mandate from congress. We should be happy that there are officials within the USFS that take this mandate seriously!

I would suggest we move forward, continue to organize ourselves as we have been doing, pool our resources, and prepare to assist small-scale miners in those instances where we believe a local determination of “significant disturbance” is not reasonable. These are things to resolve in court. No amount of language in a Rule will prevent some disagreements from happening.

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