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Federal Document Clearing House Congressional Testimony

June 15, 1999


LENGTH: 6635 words


Before the United States Senate Committee On Energy and Natural Resources Subcommittee on Forests and Public Land Management Written Testimony of Roger Flynn, Esq. Executive Director Western Mining Action Project 1405 Arapahoe Avenue Boulder, Colorado 80302 Concerning Issues Related to the March 25, 1999, Letter from the Interior and Agriculture Departments Regarding the Crown Jewel Mine June 15, 1999 Mr. Chairman, and Members of the Subcommittee on Forests and Public Land Management, the Western Mining Action Project (WMAP), appreciates the opportunity to submit this written testimony on issues related to the March 25, 1999, Letter from the Interior and Agriculture Departments concerning the Crown Jewel Mine in Okanogan County, Washington. WMAP is a non-profit legal services organization that represents and provides assistance to citizens groups and Native Americans on mining issues in the West. WMAP is the attorney for the Okanogan Highlands Alliance and other conservation organizations working on the Crown Jewel Mine proposal. Roger Flynn, WMAP's Executive Director and Attorney, will offer supplemental oral testimony before the Subcommittee on June 15, 1999. This written testimony discusses the scope and limitations of mining and millsite claims under the 1872 Mining Law. In particular, it focuses on the issues involving mining operations proposed on invalid mining and millsite claims -- such as the Crown Jewel Mine. I. INTRODUCTION The General Mining Law of 1872, more commonly known as the 1872 Mining Law, or just the Mining Law, is the fundamental statute governing hardrock mineral development on the public lands. It's central tenet, unchanged in 127 years, is that: "all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase. . . ."I Due to this preference for mineral development on lands where there are "valuable mineral deposits," the Mining Law has rightly been called "the Miner's Magna Carta. ,2 The Mining Law, and its immediate predecessor, the Lode Law of 1866, essentially recognized and codified what was already happening in the goldfields of the western U. S.3 Upon the discovery of gold in California in 1848, individuals and groups of miners quickly realized that some order had to brought out of the chaos of the Gold Rush. Up to that point, Congress had essentially failed to enact a federal mineral policy for the public lands. Miners staked and developed mining claims without interference from federal authorities in the area, mostly the army. In essence, however, the miners were trespassers on the public lands and usually had no legal right to be removing the public's minerals, let alone constructing dwellings and other improvements. With the passage of the 1866 and 1872 Acts, however, Congress legitimized these existing practices. Along with codifying the existing claims location and filing systems, however, Congress also recognized existing mineral development practices. In 1872, mining did not involve the typical low grade deposit utilized in modem mining operations. Ore processing that was needed was often done far from the actual mine tunnels in smelters and other refining facilities. There was little need for lands to conduct on-site processing or to dispose of waste products at the mine sites.' As noted by the legal study prepared for the 1970 Public Land Law Review Commission: The typical mine then was a high-grade lode or vein deposit from which ore was removed by underground mining. The surface plant was usually relatively small, and the surface of the mining claims together with the incident mill sites adequately served the needs of the mines for plant facilities and waste disposal areas. Today, the situation is frequently different. The high- grade underground mines have, for the most part, been mined out. Open pit rather than underground mining is, with increasing frequency, the most economical way to mine the low-grade deposits which now comprise a major portion of the reserves of many minerals. The mining industry now relies on mechanization, the handling of large tonnages of overburden and ores, and the utilization of large surface plants in order to keep costs down so that these low-grade deposits may be mined and treated at a profit. Such mining operations require not only substantial areas for plant facilities, but much larger areas than formerly for the disposal of overburden and mill tailings. The surface 6 areas of mining claims and mill sites are no longer adequate for such purposes. This fact, that there was little need for large tracts of land to handle waste, processing and other non-extraction activities, was recognized by Congress in the Mining Law when it provided limited acreage (and placed strict limitations upon the use of such acreage) for such activities. This is known as the "millsite provision" of the Law. In that section, Congress allowed non- mineral lands to be claimed, but only under certain conditions: "Where nonmineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non- adjacent surface ground may be embraced and included in an application for a patent for such vein or lode.... The statute also contains the requirement that "no millsite location made on or after May 10, 1872 of such nonadjacent land shall exceed five acres." Importantly, the millsite provision limited each millsite claim to a maximum of five acres, compared to a maximum of approximately twenty acres for mining claims.' In addition, a claimant was limited to only one millsite claim for each mining claim associated with that millsite. As noted in an early Interior Department decision: "A mill site is required to be used or occupied distinctly and explicitly for mining or milling purposes in connection with the lode claim with which it is associated." These limitations, and their relationship to restrictions on mining claims in the Mining Law, are a primary focus of this testimony, particularly in relationship to the acreage demands of modem mining operations. Despite these limitations on both mining and millsite claims, the Mining Law served its purpose well based on the needs and priorities of the mining industry during the Law's first hundred years. As noted in a 1979 study by the Congressional Office of Technology Assessment: " t hese limitations were probably not too restrictive in 1872 when mining operations were small er and involved high-grade deposits."" However, modem mineral development bears little resemblance to the type of mining and processing existing in 1872.12 Today, hardrock mining often utilizes vast amounts of land, resources, equipment, and capital. The high-grade deposits have largely been exhausted. Modem gold and copper operations, for example, involve the excavation of open pits hundreds or thousands of feet deep, covering hundreds of acres. Most critically, these operations require many more times that amount of land for the processing or beneficiation of the minerals (usually in large heap-leach facilities) and the disposal of uneconomic waste rock or overburden that is removed from the earth to gain access to the ore deposit. It is not uncommon for a mining project to need vastly more land for these ancillary facilities than for the actual mine pit. 14 "Even having one 5-acre mill site for each individual claim (assuming this to be lawful) may still be insufficient for some modem operations. The ore body itself may be many times smaller than the area required for disposal of waste material and for other non-mining uses. In short, today's mining is drastically different, and requires fundamentally different resources, than what Congress authorized in 1872. Despite these critical changes in mineral development practices, the Mining Law has not kept pace with the needs of the modem mining industry. Indeed, the express limitations on the type, extent, acreage, and scope of the rights granted by the Mining Law directly conflict with the necessities of modem mining operations. Almost without exception, a modem hardrock mine on public lands requires vast amounts of acreage in excess of what is allowed under the Mining Law. When these operations occur or are proposed on federal lands, mining operators usually locate a mixture of mining and millsite claims, or just mining claims, to establish their rights to those properties under the Mining Law. The claimant's interest is secure against competing claims and may be transferred, sold, or mortgaged like any other property right. Such claims, if valid, also establish rights against the federal government. A valid mining claim is a constitutionally protected property right in the claim that cannot be taken away without just compensation or be declared invalid except in accordance with due process. A pressing issue across the West is whether the mining and millsite claims filed across hundreds or thousands of acres at individual mine sites are indeed valid. If they are, then current regulatory mechanisms will likely remain in force. However, if some of these claims are not valid, then a fundamental re- evaluation of the regulation of public lands hardrock mining must occur. Recent developments in the field, especially decisions by the Interior and Agriculture Departments, the BLK the Interior Board of Land Appeals (IBLA), and the Forest Service, call into question the status quo. Most notably, in November of 1997, Interior Secretary Bruce Babbitt issued a concurrence to Interior Solicitor John Leshy's Memorandum Opinion which severely limits the ability of mineral claimants to patent millsites.'7 In that decision, Interior Secretary Babbitt and Interior Solicitor Leshy held that "the Bureau BLM should not approve plans of operations which rely on a greater number of millsites than the number of associated claims being developed unless the use of additional lands is obtained through other means." BLM headquarters subsequently issued an Instruction Memorandum, or IM, in August of 1998, giving direction on its view on how to implement the Secretary's directive.'8 In addition to these actions regarding millsites, the EBLA issued a decision in November of 1998 that calls into question the very nature of the deference given mining operations by the federal land management agencies. In March of 1999, the Interior and Agriculture Departments rejected a large open pit mining proposal based on the claim limitations in the Mining Law. 20 In the Crown JewelMine Decision, the agencies denied the proposed Plan of Operations for the Crown Jewel Mine in Washington State "because the Plan does not comply with the requirements of the Mining Law of 1872...." This testimony discusses these developments, in addition to an examination of the rights granted under the Mining Law. II.LIMITATIONS ON N41NING AND MILLSITE CLAIMS A. Mining Claims Under the 1872 Mining Law Federal mining and mineral entry laws arose together with other land disposal policies of the second half of the 19th century. The general land policy of the federal government encouraged westward expansion, resource extraction, and settlement. All of the major land programs of the era - the homestead, statehood, and railroad land grants, along with the General Mining Law of 1872 - fostered a policy of land disposal based upon the underlying social goals embodied in each program. Whether it was for the small farmer and irrigator, commerce-expanding railroad companies, public schools for states, or mineral development, each program was representative of the manifest-destiny desires of the country. Mining claims on federal land are "valid against the United States if there has been a discovery of a valuable mineral within the limits of the claim, if the lands are still mineral, and if other statutory requirements have been met. "It is a possessory interest in land that is 'mineral in character' where discovery within the limits of the claim have been made. The Interior Department is charged with regulatory oversight of mining claims on federal land. "By general statutory provisions the execution of the laws regulating the acquisition of rights in the public lands and the general care of these lands was confided to the land department, as special tribunal; and the Secretary of the Interior, as the head of the department, is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved. Against this backdrop, the Department and courts over the years have been entrusted with the responsibility of resolving disputes between rival claimants and users of the public lands. In order for an individual to possess a valid mining claim, the claimant must meet the fundamental requirement of the Mining Law, that there is the discovery of a valuable mineral deposit. Discovery means "the actual physical disclosure of a valuable mineral deposit. 45 The Mining Law further states that any such locators of valuable minerals on the public lands "shall have the exclusive right to the possession and enjoyment of all the surface included within the lines of their location .... Even if such rights exist, however, they exist only "so long as they comply with the laws of the United States, and with State, territorial, and local regulations...... A mining claim location does not give the presumption of a discovery. As the Supreme Court has held: " L ocation is the act or series of acts whereby the boundaries of the claim are marked, etc., but it confers no right in the absence of discovery, both being essential to a valid claim. As the IBLA recently noted: "A mining claimant's rights as against the United States are acquired only under the General Mining Law, 3 0 U.S. C. 21 (1994), and unless and until the claimant meets the requirements under those laws, no rights can be asserted against the United States. The IIBLA continued: "It is axiomatic that operations may not legally proceed on invalid claims. In another recent case, the IBLA stated: This Board has held that, as against the United States, a mining claimant acquires no vested rights by location of a mining claim. Even though a claim may be perfected in all other respects, unless and until a claimant is able to show that the claim is supported by a discovery of valuable locatable mineral within the boundaries of the claim, no rights are acquired. In addition, the continuing authority of the Department to inquire into the validity of claims so long as legal title remains in the Department has been repeatedly reaffirmed by the courts. B. Millsite Claims Under the 1872 Mining Law In addition to affirming the right to enter mineralized federal lands for mineral exploitation, the 1872 Mining Law granted holders of lode claims the right to claim non- mineral land that was not contiguous to the vein or lode for use in association with mining claims. The millsite provision of the 1872 Mining Law grants the holder of a lode claim the right to use or occupy non- mineral land for mining or milling purposes. "Where norimineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface ground may be embraced and included in an application for a patent for such vein or lode...... The statute also contains the requirement that "no millsite location made on or after May 10, 1872 of such nonadjacent land shall exceed five acres. "No mill site entry should be allowed unless it is shown that the conditions of the law have been complied with. In 1960, the last time it squarely reviewed the millsite acreage limitations, Congress amended the Mining Law to extend the ability to utilize and patent millsites in association with placer as well as lode claim Importantly, Congress specifically rejected the original bill's proposal to allow a millsite location of "ten acres for each individual claimant" in connection with a placer claiM.36 The Senate Interior Committee's Report on the bill stated: T he word "ten" was stricken and the word "five" inserted in lieu thereof The purpose of this amendment is to restrict the area of a millsite in conjunction with a placer claim to 5 acres of land to make it conform with the allowable millsite acreage for lode claims which has been the statutory requirement since 1872.... T he words "for each individual claimant" were stricken so as to impose a limit of one 5-acre millsite in any individual case preventing the location of a series of 5-acre millsites in cases where a single claim is jointly owned by several persons.... In essence, S. 2033 merely grants to holders of placer claims the same rights to locate a 5-acre millsite as has been the case since 1872 in respect to holders of lode claims, and the committee unanimously urges enactment. "This legislative history demonstrates that Congress understood both the amendment in 1959 and the existing Mining Law to permit location of only one five-acre millsite per mining claim. The Senate Interior Committee removed the phrase 'for each individual claimant' from the bill for the express purpose of preventing the aggregation of multiple fove-acre millsites by a mining claimant, and made it clear that the Committee understood this to be consistent with the existing law applicable to millsites associated with lode claims. C. Lode claim to millsite claim ratio As with lode claims, Congress imposed a maximum claim size for millsites. Millsites are not to exceed five acres. In addition, a millsite will be limited to less than five acres when a claimant requests more land for millsites than is necessary to support the associated mining operations. While the Babbitt/Leshy Memorandum notes that the Interior Department could permit, at a maximum, five acres of millsite for each associated mining claim, early Department decisions indicate that, especially where lode claims are grouped together under common ownership, it does not necessarily follow that the claimant is entitled to one five-acre millsite for each individual lode claim. "It is not to be supposed that Congress intended a grant of an equal number of tracts as rightfully incident to all the lode claims of a compact group held and worked under common ownership." " I t seems plain that ordinarily one mill site affords abundant facility for the promotion of mining operations upon a single body of lode claims. " Today, due to the size of modem open-pit methods, one millsite generally may not accommodate the needs of the holder of a group of lode claims. In fact, the mining industry is likely of the opinion that an allowance of one five-acre mill site per each lode claim is also not enough. However, a 1979 study by the Congressional Office of Technology Assessment stated that " t hese limitations were probably not too restrictive in 1872 when mining operations were small er and involved high-grade deposits. The study states that "the Mining Law does not adequately provide for land needed for surface facilities and uses," particularly because of the difficulty of planning in advance caused by the millsite provision's requirement of present occupancy or use. As noted by the OTA Report: " t here could be at most as many millsites as there are mining claims, and each millsite would be at most one-fourth the size of the typical 20-acre claim, so that the millsites, in the aggregate, would be one-fourth the size of the ore body encompassed by the claims. " These limits on the number of millsite claims, and the acreage allowed, are critical to the management of mining operations in the West. D. Operations Proposed on Invalid Millsite Claims: The Crown Jewel Project in Washington State As noted, the millsite provision in the Mining Law is not extensive, but its provisions present important obstacles for modem mineral development. These limitations are directly at issue in the Crown Jewel Mine in Washington State proposed by Battle Mountain Gold Corporation. The Mine is proposed on a mixture of federal, state, and private land with the vast majority owned by the Forest Service and BLM. As allowed under the Record of Decision (ROD) jointly issued for the Project by the Forest Service and BLK through continuous 24-hour-a-day, 7- days-a-week operations, including massive blasting and earthmoving, the Crown Jewel Mine will remove over 105 million tons of rock from the open pit to be blasted and excavated from Buckhom Mountain over approximately 8 years. Of this, approximately 34,000 tons of waste rock per day will be generated, totaling over 97 million tons of waste rock that will be deposited in two massive, unlined dumps at the headwaters of two important watersheds. The mine pit blasted into the side of Buckhom Mountain will cover II 6 acres that will not be reclaimed or backfilled and will form a lake that will be 350 feet deep and projected to violate numerous state water quality standards. The operation would process approximately 3,000 tons of ore per day. Out of this 3,000 tons of ore per day, or 1,095,000 tons of ore per year, gold would be produced over the life of the project through a cyanide leaching process that will use over 13,000 tons of sodium cyanide. The proposed mining operation will directly disturb 787 acres of land -- over one whole square mile. Approximately 60 percent of the disturbance would be on Forest Service lands. The remaining disturbance will be on lands administrated by the federal Bureau of Land Management (BLM) (24%), the Washington Department of Natural Resources (2%), and private land (I 5%). The Crown Jewel Mine proposes to utilize 117 unpatented millsite claims, while developing only approximately 15 mining lode claims. The Babbitt/Leshy Memorandum held that: Because the statute the Mining Law does not support issuing patents for millsite claims totalling more than five acres per placer or lode claim, the Department should reject those portions of millsite patent applications that exceed this acreage limitation. In addition, the Bureau BLM should not approve plans of operations which rely on a greater number of millsites than the number of associated claims being developed unless the use of additional lands is obtained through other means. The Crown Jewel Mine Decision specifically dealt with these issues. In that decision, the agencies denied the proposed mine plan of operations "because the Plan does not comply with the requirements of the Mining Law of 1872...." The agencies stated: "The Mining Law allows claimants to locate up to five acres of nonmineral land for mill site use in association with each valid mining claim. Any mill site acreage in excess of five acres per valid mining claim is not valid. No rights of any kind attach to invalid mining claims or mill sites. Under the Mining Law, the applicant may locate a maximum of 75 mill site acres, depending on whether all of the fifteen lode claims in the Plan are valid. Based on the information in the Plan, the Crown Jewel Mine exceeds the allowable amount of millsites by at least 490 acres." In a letter to the Forest Service and BLM sent prior to the Crown Jewel Mine Decision, Battle Mountain.argued that the millsite limit did not apply to the Plan decision since the Babbitt/Leshy Memorandum was signed after the ROD and Final EIS were issued. The fact that the Memorandum was written after the ROD, though, is irrelevant. The Memorandum simply made clear the Interior Department's view of the provisions of the Mining Law. It in no way made no law or created new obligations on mining applicants. Secretary Babbitt and Solicitor Leshy specifically noted that: A s reflected in treatises and other commentary, including those by industry lawyers, the limitations of the millsite provision appear to have been widely, if not uniformly, appreciated. Therefore, I do not regard immediate application of this Opinion to pending applications to be unreasonable or to thwart any legitimately held expectation to the contrary. The agencies correctly rejected the company's contentions, stating that: "BMG Battle Mountain Gold also stated that, because BLM and USFS have signed the ROD for the Crown Jewel Mine, the agencies are barred from applying the mill site limitation. We disagree. Nothing in the ROD vests any right in BMG. The ROD did not purport to make any determination as to whether BMG has established valid rights under the Mining Law; it simply selected a preferred alternative." The agencies also vacated the ROD issued in January, 1997. "Selection of the preferred alternative in the Crown Jewel Mine environmental analysis rested on the premise that BMG had had unpatented mining claims and mill sites that the government could later challenge. The ROD by its very terms addressed only the selection of an alternative for National Environmental Policy Act purposes. The ROD is clear that its selection of an alternative is valid only insofar as the unpatented mining claims and mill sites are valid. To the extent that BMG has not established rights under the Mining Law, the ROD did not create rights or exempt BMG from complying with the law." The ROD and Final EIS were also based on the perceived "limited discretion" available to federal land managers reviewing operations with valid mining and millsite claims. For example, the ROD acknowledged that due to the agencies' assumption that all the project-related mining and millsite claims were valid, the Mining Law "limits the scope of decision making discretion available to decision makers." The Final EIS similarly based the "Purpose and Need" of the operation on the "statutory rights" of the applicant under the mining laws. In this case, as noted in the Crown JewelMine Decision, there are no "statutory rights" to operate on invalid mining or millsite claims. The question remains, though, as to the proper regulatory framework for operations proposed on invalid claims. The Babbitt/Leshy Memorandum noted that, in the absence of valid millsite claims (i.e., a greater number of millsite claims than associated mining claims being developed), a project applicant could nonetheless attempt to gain the use of federal land. The examples discussed by the Memorandum were land exchanges under FLPMA Section 206 and "permits and leases under Title III of FLPMA." The Crown Jewel Mine Decision outlined the options available to project applicants. For example, the agencies specifically stated that: "We emphasize that there are ways for BMG to still proceed with developing the Crown Jewel Mine consistent with the mill site limitation. On both National Forest and BLM-administered lands, BMG could seek a land exchange, provided the federal agencies determine that an exchange would be in the public interest." The Crown Jewel Mine, and the project facilities proposed on the excess acres, would clearly result in unacceptable environmental degradation. For example, the State of Washington has expressly acknowledged that ground and surface water standards are predicted to be violated by the pollution released by the waste rock dumps. Clearly, project facilities located on excess millsite acres that will violate water quality standards present an unacceptable public land use. In addition, a number of other critical resources will be either destroyed or irreparably injured by the location of the waste rock, tailings, and other project facilities on the excess millsite acres. For example, despite the "mitigation" proposed by the Forest Service and BLM in the FEIS and ROD, the agencies admit that there are many "unavoidable adverse effects" from the Crown Jewel Mine. According to a summary list in the FEIS, these unavoidable effects include: "loss of vegetation and wildlife habitat (short and long-term)"; "permanent alteration of the topography (long-term)"; "loss of wetlands, springs and seeps and changed functions and values of wetlands (short and long-term)"; "soil productivity (long-term) ; "timber production (short and long-term)"; and "loss of sensitive plants (long-term)". This exhaustive list does not even include additional resource destruction caused by the mine pit located on the lode claims (e.g., projected violations of state water quality standards in the pit lake, destruction of cultural resources, shift in hydrologic divide between drainages). The loss of wetland function and value acknowledged in the FEIS is especially egregious in light of BLM's policy to protect wetland and riparian resources. In addition, the Environmental Protection Agency has objected on numerous occasions to the level of destruction proposed by the Project. 54 Overall regarding the limits inherent in the Mining Law, the fact that the millsite limitation may not comport with modem open pit mining practices does not excuse the federal government from complying with the law. "The evolution of the mining industry over the years has increased the need, with some mining practices, to secure the use of ancillary acreage to support locatable mining operations. For some kinds of mining, the five- acre limitation precludes obtaining that acreage." As held by the Supreme Court, " The Secretary is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved. ,56 In this case, since the Crown Jewel Mine exceeds the strict limitations of the Mining Law, the agencies correctly informed the project applicant that such a Plan of Operations could not be approved. III. TBE FUTURE OF FEDERAL MINE PERMITTING: HARDROCK MINING MEETS MULTIPLE USE In light of the invalidity of mining and millsite claims at many hardrock mining operations in the West, the question remains: "What should the federal land management agencies do when faced with a mine proposed in whole or in part on invalid claims?" The answer to this question will determine the future of mine permitting on federal public lands. The answer, in short, is to treat mining operations that lack valid claims like any other "multiple use" on the federal lands. This is because a mining operations proposed on invalid claims do not have statutory "rights" different from any other user of public lands. The issue was summarized in the American Law of Mining: In addition to the land on which mining will occur, other areas are usually needed by a mining operation for such ancillary purposes as adit construction, plant sites, pit slopes, ore, waste and equipment storage, tailings ponds, water reservoirs, and town sites. The acquisition of federal lands or interests therein by means other than the location of mining claims or mill sites is sometimes necessary to provide the additional ground needed for a planned mining operation. The restraints on the number and size of mill site claims can limit their usefulness as a land acquisition method. The use of mining claims for ancillary purposes is often limited by their use for actual mining and the requirement that there be a mineral discovery within each claim. The task of the federal land agencies is to determine whether, and to what extent, it may permit these ancillary facilities. The following discussion focuses on the statutory and regulatory framework applicable to the BLM and Forest Service. A. BLM Authority Over Mining Operations That Lack Valid Claims Use of BLM lands is governed by the Federal Land Policy And Management Act of 1976 (FLPMA). That law requires that "the Secretary shall manage the public lands under the principles of multiple use and sustained yield . . . . This mandate is different when the lands involved are covered by valid mining and millsite claims. In this latter case, the BLM is limited to "prevent ing unnecessary or undue degradation" on the claimed lands. 59 Many mines invoke the first scenario - federal authority over public lands that are not validly claimed under the mining laws. The FLPMA defines "multiple use" as "management of the public lands and their various resource values so that they are utilized in the combination that will best meet the present and future needs of the American people. The "multiple use" mandate also requires "management of the various resources without permanent impairment of the productivity of the land and the quality of the environment with consideration being given to the relative values of the resources...... In addition, the FLPMA lists a broad range of resource values to be taken into consideration, "including, but not limited to, recreation, range, timber, minerals, watershed, wildlife and fish, and natural scenic, scientific, and historical values." In Sierra Club v. Butz, the Ninth Circuit held that FLPMA's multiple use statutory mandate require s that the values in question be informally and rationally taken into balance. With respect to public lands management by the BLM, the Interior Board of Land Appeals (EBLA) has expressly adopted Butz, specifically applying that holding to the FLPMA "multiple use" mandate. In order to prove that the resource values have been informally and rationally balanced, "the process must show that BLM has balanced competing resource values to ensure that the public lands ... are managed in the manner that will best meet the present and future needs of the American people. ,6' Further, the legislative history of the FLPMA shows that the long list of resources to be considered by the BLM in the management of the public lands was inserted into the Act "to insure that the ... values . . . which are difficult to quantify and thus to consider, are given equal weight with more quantifiable resource values in the ... management of the national resource lands. Thus, the BLM must balance the relative values of the various resources on the public land giving equal consideration to all such resource values. Federal courts have granted the BLM discretion in its final decision resulting from a multiple use analysis, but only after such analysis was properly conducted.66 Although the BLM has flexibility as to how and when it conducts its multiple use analysis, this discretion in no way mitigates the BLM's legal obligation to conduct such analyses prior to permitting the use of the public lands for mining purposes under 302 of the FLPMA. Therefore, before approving any mining use on the public lands outside the Mining Law acreage and discovery limitations, the BLM is required to give equal consideration to the relative values of the various resources on the public lands in question and make an informed and rational determination as to whether to allow such mining development. B. Forest Service Authority Similar to the BLM, the Forest Service is struggling with the question of mining- related activities on invalid claims. Like the BLM, the Forest Service regulations covering operations on valid claims, 36 C.F.R. Part 228, is very different from its multiple use authorization requirements. Forest Service authority over lands under its administration, including mining operations, is governed by its Organic Administration Act of 1897. This statute authorized the agency to promulgate rules and regulations for the national forests in order "to regulate their occupancy and use and to preserve the forests there on from destruction. As noted by Clouser v. Espy, the leading Ninth Circuit case on the Forest Service's authority over mining: "Further, it the Organic Act specifies that persons entering the national forests for the purpose of exploiting mineral resources 'must comply with the rules and regulations covering such national forests."' In 1974 and 198 1, the agency adopted regulations under this authority "in connection with operations authorized by the United States mining laws (30 U.S. C. 21-54)...." The Forest Service has a judicially enforceable duty to prevent destruction of National Forest System lands and to minimize adverse environmental impacts to National Forest surface resources. In the district court case in Clouser, the court noted that the Forest Service's Organic Act, 16 U.S. C. 551, requires that the agency "must ... ensure that its approval of a plan or project does not result in the 'destruction' and 'degradation' of the public forests." The National Forest Management Act (NFMA) also requires that all Forest Service projects and activities "shall be consistent with the land management plans". The Ninth Circuit has held that " p ursuant to the NFMA, the Forest Service must demonstrate that a site-specific project would be consistent with the land resource management plan of the entire forest. The Forest Service must also abide by the multiple use mandates as defined in federal public land law. As noted by one leading treatise, " t he definition of multiple use in FLPMA for the BLM public lands is almost identical to that for the Forest Service . Thus the multiple use analysis discussed above is generally applicable to both the Forest Service and BLM. Similar to the BLM's 3809 regulations, the Forest Service's mining regulations cover "operations authorized by the United States mining laws (30 U.S.C. 21-54). Thus, similar to the above discussion dealing with BLM authority over activities that are not so authorized, the Forest Service, like the BLM, must look to its multiple use mandates for the authority to approve activities on non-claimed, or invalidly-claimed or utilized lands. CONCLUSION The 1872 Mining Law is a two-edged sword for the hardrock mining industry. On one hand, the "free access" provision grants a benefit unequaled on the public lands. However, the Law's limitations on mining and millsite claim validity present real challenges to low-grade open pit mining proposals. Just as the "free access" provision cannot be ignored, neither can the claim limitation provisions. Faced with the reality of the Mining Law, the industry may demand that the "rights" granted by the Mining Law on valid claims somehow extend onto the public's lands - lands not authorized by the Mining Law. As the federal courts have stated: "These companies have now come into court ... and have said, 'This is not enough land; give us more.' We have no more power to grant their request, of course, than we have the power to increase congressional appropriations to needy recipients."77 Certainly, adherence to the claim limitations will result in substantial on-the- ground changes in mining practiceS.78 It is very possible that every low-grade, marginally economic mine cannot absorb the additional costs necessitated by the need to move some ancillary facilities off federal land. Due to the environmental and social costs of many of these operations, they should be subject to the multiple use balancing test applicable to all other uses on the public lands. It is very possible that the proper interpretation and implementation of the claim limitations will spur congressional reform of the Mining Law. However, real reform of the claim provisions must be accompanied by real reform of the "free access" provision. In other words, comprehensive reform may entail loosening the claim restrictions while at the same time reducing or eliminating the oft-perceived "statutory right" to mine valuable minerals -- mining that has occurred despite the environmental or social costs entailed in extracting the minerals. The end result will hopefully be a better balancing of the needs of the mining industry with the needs of the public and the environment across the West.

LOAD-DATE: June 17, 1999

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