Smith River National Recreation Area

SUMMARY: This final rule implements Section 8(d) of the Smith River

National Recreation Area Act of 1990 and sets forth the procedures by

which the Forest Service will regulate mineral operations on National

Forest System lands within the Smith River National Recreation Area.

This rule supplements existing Forest Service regulations and is

intended to ensure that mineral operations are conducted in a manner

consistent with the purposes for which the Smith River National

Recreation Area was established.

EFFECTIVE DATE: This rule is effective April 27, 1998.

FOR FURTHER INFORMATION CONTACT: Sam Hotchkiss, Minerals and Geology

Management Staff, (202) 205-1535.

SUPPLEMENTARY INFORMATION:

Background

The Smith River National Recreation Area (SRNRA) was established by

the Smith River National Recreation Area Act of 1990 (the Act) (16

U.S.C. 460bbb et seq.). The purpose of the Act is to ensure ``* * * the

preservation, protection, enhancement, and interpretation for present

and future generations of the Smith River watershed's outstanding wild

and scenic rivers, ecological diversity, and recreation opportunities

while providing for the wise use and sustained productivity of its

natural resources * * *.''

In order to meet the purposes of the Act, Congress directed the

Forest Service to administer the SRNRA to, among other things, provide

for a broad range of recreation uses and improve fisheries and water

quality. Subject to valid existing rights, Congress prohibited

locatable mineral operations, prohibited mineral leasing (including

leasing of geothermal resources), and limited the extraction of mineral

materials within the SRNRA to situations where the material extracted

is used for construction and maintenance of roads and other facilities

within the SRNRA and in certain areas excluded from the SRNRA by the

Act.

The SRNRA consists of approximately 300,000 acres of National

Forest System lands in the Six Rivers National Forest in northern

California. The Act divides the SRNRA into eight distinct management

areas and specifies a management emphasis for each. There are also four

areas within the exterior boundaries of the SRNRA that were expressly

excluded from the provisions of the Act.

One of the eight management areas in the SRNRA is the Siskiyou

Wilderness, most of which was designated by Congress on September 26,

1984. The Gasquet-Orleans Corridor was added to the Siskiyou Wilderness

by the Act in 1990. The Act specifies that the Siskiyou Wilderness is

to continue to be managed pursuant to the provisions of the Wilderness

Act. In accordance with Section 4(d)(3) of the Wilderness Act, the

federal lands within the Siskiyou Wilderness (excluding the Gasquet-

Orleans Corridor addition) were withdrawn from the operation of the

mining and mineral leasing laws, subject to valid existing rights, as

of September 26, 1984.

The Act also redesignated the following rivers and some of their

tributaries as components of the National Wild and Scenic Rivers

System: (1) The Smith River; (2) the Middle Fork of the Smith River;

(3) the North Fork of the Smith River; (4) the Siskiyou Fork of the

Smith River; and (5) the South Fork of the Smith River. These same

rivers and most of the designated tributaries had previously been

designated components of the Wild and Scenic Rivers System on January

19, 1981, pursuant to Section 2(a)(ii) of the Wild and Scenic Rivers

Act. The Act designated as wild segments two tributaries which had not

previously been designated--Peridotite Creek, tributary to the North

Fork of the Smith River, and Harrington Creek, tributary to the South

Fork of the Smith River. The Act also changed the classification of

some tributaries designated in 1981, from recreational to scenic or

wild. For example, the lower 2.5 mile segment of Myrtle Creek,

tributary to the Middle Fork of the Smith River, was reclassified as

wild. In the Act, Congress directed that these designated wild and

scenic rivers and tributaries be managed in accordance with the Act and

the Wild and Scenic Rivers Act, whichever is more restrictive. In

accordance with Section 9(a)(iii) of the Wild and Scenic Rivers Act,

the federal lands within segments of designated rivers or tributaries

classified ``wild'' (except for Peridotite Creek, Harrington Creek, and

the lower 2.5 miles of Myrtle Creek that were reclassified in the Act)

were withdrawn from the operation of the mining and mineral leasing

laws, subject to valid existing rights on January 19, 1981.

Under this patchwork of wild and scenic rivers, wilderness, and

national recreation area designations there emerge three different

dates of withdrawal which apply to federal lands. First, there are the

federal lands within ``wild'' segments of wild and scenic rivers

(excluding those that were designated or reclassified as ``wild'' in

the Act) which were withdrawn subject to valid existing rights on

January 19, 1981, pursuant to Section 9(a)(iii) of the Wild and Scenic

Rivers Act. Second, there are the federal lands within the Siskiyou

Wilderness (excluding both the Gasquet-Orleans Corridor addition and

the aforementioned ``wild'' segments of wild and scenic rivers) which

were withdrawn subject to valid existing rights on September 26, 1984,

pursuant to Section 4(d)(3) of the Wilderness Act. Third, the remaining

federal lands that comprise the SRNRA (which includes, among others,

the ``scenic'' and ``recreational'' segments of wild and scenic rivers,

the ``wild'' segments of wild and scenic rivers as designated or

reclassified by the Act, and the Gasquet-Orleans Corridor addition to

the Siskiyou Wilderness) that were withdrawn subject to valid existing

rights on November 16, 1990, pursuant to Section 8(a) of the Act.

Mining and prospecting for minerals have been important parts of

the history of the Smith River area since the 1850's. Historically,

mining operations within the Smith River area have been small-scale

placer gold exploration and recovery operations within the bed and

banks of the Smith River and its main tributaries. Panning, sluicing,

and dredging operations occur predominantly during the summer months.

In recent years, large, low-grade, nickel-cobalt resources in the

uplands of the Smith River watershed have attracted the attention of

prospectors. Based on a review of Bureau of Land Management (BLM)

records, there were approximately 2,776 mining claims covering about

30,000 acres of National Forest System lands within the SRNRA upon the

date of enactment of the Act in 1990. By May 1997, however, BLM records

indicate that there were only approximately 297 mining claims covering

about 7,700 acres of National Forest System lands in the SRNRA that met

current filing requirements. None of the claims are for mill site

locations. There are no active operations on mining claims or on lands

with outstanding mineral rights.

[[Page 15043]]

In Section 8 of the Act, Congress addressed the extent to which

mineral operations would be authorized within the SRNRA. Section 8(a)

of the Act withdrew as of the effective date of the Act, all federal

lands in the SRNRA from the operation of the mining, mineral and

geothermal leasing laws subject to valid existing rights. Section 8(b)

precluded the issuance of patents for locations and claims made prior

to the establishment of the SRNRA. Section 8(c) of the Act prohibited

all mineral operations within the SRNRA except where valid existing

rights are established. Section 8(c) also prohibited the extraction of

mineral materials such as, common varieties of stone, sand, and gravel,

except if used in the construction and maintenance of roads and other

facilities within the SRNRA and the excluded areas. Finally, under

Section 8(d), the Secretary was authorized and directed to promulgate

supplementary regulations to promote and protect the purposes for which

the SRNRA was designated.

On November 8, 1994, the largest claimholder in the SRNRA filed

suit against the Department of Agriculture in United States District

Court for the Northern District of California alleging violations of

the Act. California Nickel Corp. v. Espy, No. C94-3904-DLJ (N.D. Cal.).

Specifically, the suit alleged that the Department violated the Act by

not promulgating regulations for mineral operations in the SRNRA as

required under Section 8(d). The Department did not dispute that

Section 8(d) of the Act required the promulgation of supplementary

regulations for the SRNRA. In fact, preliminary progress towards the

development of a regulation had been made prior to the initiation of

litigation.

On June 23, 1995, proposed supplementary regulations for mineral

activities in the SRNRA were published in the Federal Register for

notice and comment (60 FR 32633). Seven letters were received during

the 60-day comment period and were considered in the development of a

final rule which was published on April 3, 1996 (61 FR 14621). Upon

publication, the claimholder who had initiated litigation against the

agency amended its complaint to challenge the substance of the April 3,

1996, final rule. On March 14, 1997, the court invalidated three

provisions of the April 3, 1996, final rule. California Nickel Corp. v.

Glickman, No. C-94-3904-DLJ, slip op. (N.D. Cal. Mar. 14, 1997).

Specifically, the court held that a provision limiting the period of

approval of a plan of operations to 5 years was arbitrary and

capricious because the agency had failed to evaluate whether mining

under such a time constraint might result in a taking of private

property. The court also ruled that the agency had been arbitrary and

capricious by failing to explain why the supplementary regulations did

not include a timetable for processing and reviewing plans of

operations. Finally, the court ruled that mining operators had been

denied due process because the rule did not include a mechanism by

which Forest Service determinations that valid existing rights had not

been established could be reviewed within the Department of the

Interior.

On September 8, 1997, the Forest Service published a second

proposed rule for notice and comment which included provisions that

addressed the court's concerns (62 FR 47167). Specifically, the second

proposed rule provided that plans of operations would be approved for

the minimum time reasonably necessary for a prudent operator to

complete mining operations. The second proposed rule also stipulated

that plans of operations would be reviewed for completeness within 120

days of submission and that valid existing rights determinations would

be completed within 2 years except when the Forest Service could show

cause as to why additional time was necessary. Finally, the second

proposed rule included a provision requiring the Forest Service to

promptly request the Bureau of Land Management to initiate a contest

action whenever it concluded that an applicant had failed to establish

the presence of valid existing rights. Other modifications were made to

clarify and improve the regulations generally, but they were not

required as a result of the March 1997 court decision.

Four letters were submitted during the 60-day comment period that

ended on November 7, 1997. The comments contained in these four letters

were considered by the Forest Service in the development of this final

rule. Based on the comments, several changes were made in the text of

the final rule. Some of these changes were made to the provisions of

the second proposed rule which had been added to respond to the court's

concerns with the first final rule. For example, a new provision was

added to this final rule which expressly provides for an extension of

the approval period for a plan of operations. Additionally, the time to

review a plan of operations for completeness was shortened from 120 to

60 days. Finally, the procedure by which a Forest Service valid

existing rights determination is referred to the Bureau of Land

Management was refined and clarified. These and other changes and the

reasons for the changes are explained more fully in the following

paragraphs.

All comments received are available for review in the Office of the

Director, Minerals and Geology Management Staff, Auditors Building, 4th

Floor, 201 14th Street, SW., Washington, DC, during regular business

hours (8 a.m. to 5 p.m.) Monday through Friday. The Department

appreciates the time and energy the reviewers invested in preparing

these letters and in articulating their views regarding the proposed

rule.

Analysis of Public Comment

Comments on the proposed rule dealt with general issues, including

whether supplementary regulations are necessary, whether a taking of

private property had occurred, whether the agency exceeded its

authority to regulate mineral operations on National Forest System

lands, whether the new provisions in the second proposed rule were the

same or substantially similar to those in the first final rule that had

been struck down by the court, whether the supplementary regulations

were in furtherance of the Act, whether the supplementary regulations

were punitive, whether mineral collecting was a permissible

recreational activity in the SRNRA, whether the requirement for a plan

of operations should apply to suction dredge and sluice operations, and

whether delay by the Forest Service in promulgating the supplementary

regulations caused the abandonment of more than 4,500 mining claims. In

addition to the preceding general comments, several specific issues

concerning the enumerated provisions of the proposed rule were raised.

A summary of the comments and the Department's responses to them

follows.

General Comments

1. Supplementary mining regulations are unnecessary since the

Forest Service already has adequate authority to protect the SRNRA in

accordance with the Act. One reviewer stated that there is no need for

additional regulations pertaining to mineral operations in the SRNRA

since existing Forest Service regulations governing these activities at

36 CFR part 228 provide ample protection to the SRNRA and its

resources.

Response: The issue of whether additional regulation of mineral

operations in the SRNRA is necessary was conclusively determined by

Congress in Section 8(d) of the Act. This provision specifically states

that ``the Secretary (of Agriculture) is authorized and directed to

issue supplementary

[[Page 15044]]

regulations to promote and protect the purposes for which the (SRNRA)

is designated.'' It is not within the discretion of the Department to

evaluate whether such regulations are necessary. The Act obligates the

Department to issue them, therefore, no change to the rule has been

made based on the comment.

2. The new regulations should not differ from the Forest Service's

current mining regulations at 36 CFR part 228 unless ``some unique

aspect of the SRNRA'' justifies a change. One reviewer felt that the

supplementary regulations for mineral operations in the SRNRA should be

identical to the current mining regulations at 36 CFR part 228 unless

``a reasonable and rational justification * * * based upon some unique

aspect of the SRNRA'' can be identified to justify the change.

Response: The Department disagrees with this comment for the

following reasons. First, there is no indication in the Act or its

legislative history that the supplementary mining regulations must

mirror the current mining regulations at 36 CFR part 228 unless a

unique attribute of the SRNRA might warrant a change. The Act vested

the Department with considerably more discretion to determine the

appropriate form and content of the supplementary regulations. It is

worth noting, however, that the supplementary regulations build upon,

and are integrated with, the Forest Service's current mining

regulations at 36 CFR part 228.

Secondly, even assuming that this reviewer was correct, the Act and

its legislative history contain numerous references to the unique

attributes of the SRNRA which justify different and more stringent

regulation of mineral development activities than elsewhere on National

Forest System lands. Section 2 of the Act recognizes the ``invaluable

legacy'' represented by the undammed and free-flowing Smith River; the

unusual ``richness of ecological diversity,'' ``renowned anadromous

fisheries,'' ``exceptional water quality,'' and ``abundant wildlife''

in the Smith River watershed; and the ``exceptional opportunities'' for

wilderness, water sports, fishing, hunting, camping, and sightseeing.

Similar language is contained in the House committee report and floor

debate pertaining to the establishment of the SRNRA. See, H.Rep. No.

707, 101st Cong., 2d Sess. 11-12 (1990); 136 Cong. Rec. 24720 (Sept.

17, 1990). Thus, there appear to be several ``unique aspects'' in the

SRNRA which justify departing from the general Forest Service mining

regulations at 36 CFR part 228. Based on the foregoing discussion, no

change was made to the rule.

3. The second proposed rule utilizes many of the provisions from

the first final rule that were invalidated by the court. One reviewer

criticized the second proposed rule for containing provisions that

varied only slightly from those in the first final rule that were

invalidated by the court.

Response: The Department disagrees with this reviewer's

characterization.

On March 14, 1997, the court invalidated three provisions of the

first final supplementary regulations for the SRNRA that had been

published on April 3, 1996. California Nickel Corp. v. Glickman, No. C-

94-3904-DLJ, slip op. (N.D. Cal. Mar. 14, 1997). The court first ruled

that a provision limiting the approval period of a plan of operations

for mining in the SRNRA to 5 years was arbitrary and capricious because

the agency had failed to consider all the relevant factors in adopting

this provision. Specifically the court concluded that there was no

indication in the record that the agency had considered whether a 5-

year limit might result in a taking of private property. Id. at 9-11.

The court next ruled that a provision exempting plans of operations in

the SRNRA from the generally applicable timetables for review set forth

in the mining regulations at 36 CFR part 228, subpart A, was arbitrary

and capricious because the agency failed to explain or justify its

position. Id. at 11-13. Finally, the court held that the rule denied a

mining operator due process because it did not provide a mechanism by

which the Bureau of Land Management could review determinations by the

Forest Service that valid existing rights had not been established by

the operator. Id. at 13-17.

The Forest Service took the court's concerns seriously. Bearing in

mind its overall responsibility to administer the SRNRA in conformance

with the Act, the Forest Service published a second proposed rule on

September 8, 1997, which specifically responded to the deficiencies

that had been identified by the court (62 FR 47167).

With respect to the approval period for a plan of operations, the

new proposed rule provided for approval for the ``minimum amount of

time reasonably necessary for a prudent operator to complete the

mineral development activities covered by the approved plan of

operations.''

This provision ensures the protection of the SRNRA while providing

mineral operators the necessary flexibility to conduct their

activities. The Department believes this approach should allay concerns

about the potential deprivation of property arising from an abbreviated

approval period which might preclude the completion of mining

operations. At the same time, this provision should ensure that mining

operations will be conducted in an expeditious manner and will not be

protracted over time to the detriment of the land and resources of the

SRNRA.

With respect to timetables for reviewing plans of operations in the

SRNRA, the second proposed rule provided that the Forest Service will

notify the operator within 120 days whether all the necessary

information to evaluate a plan of operations has been submitted. In

addition, the second proposed rule provided that once the necessary

information has been submitted, the determination of whether the

operator has established valid existing rights will be completed within

2 years unless the agency can show good cause in writing as to why more

time will be necessary. The preamble of the second proposed rule went

into considerable detail to explain why this timetable, rather than the

timetable set forth at 36 CFR part 228, subpart A, was more appropriate

for reviewing plans of operation in the SRNRA.

Finally, with respect to appeals of valid existing rights

determinations adverse to a mining operator, the second proposed rule

provided that the Forest Service would notify the Bureau of Land

Management promptly of adverse determinations and request the

initiation of a mineral contest action against the pertinent mining

claims.

The Department believes that the changes in the second proposed

rule are significant and address the concerns identified by the court

in its March 14, 1997, ruling. The Department also believes that the

second proposed rule was faithful to, and consistent with, the legal

obligations assumed by the Forest Service pursuant to the Act. It

should be noted that each of the provisions added to the second

proposed rule based on the March 14, 1997, court decision was further

modified in response to comments that were received on the second

proposed rule. Therefore, no changes were made to the rule based on

this comment.

4. The regulations are unlawful because they exceed the Forest

Service's authority to administer minerals on National Forest System

lands and do not promote and protect the purposes for which the SRNRA

was established. Two reviewers stated that the second proposed rule

unlawfully augmented the Forest Service's authority to regulate

minerals in the SRNRA. One of these reviewers added that by effectively

eliminating recreational mining from

[[Page 15045]]

the SRNRA, the proposed rule was flawed because it did not ``promote

and protect'' one of the purposes for which the SRNRA was established.

Response: The Department disagrees with this comment. This rule

does not increase the authority of the Forest Service to regulate

minerals in the SRNRA. Rather, it sets forth a system for determining

whether a claimholder possesses valid existing rights and, where such

rights exist, the terms and conditions under which National Forest

System lands may be used to conduct mineral development activities.

This system is entirely consistent with the authority delegated by

Congress in Section 8(d) of the Act which, the Department believes,

reflects an eminently reasonable compromise between an outright

prohibition of all mining in the SRNRA (which might have led to

potential takings liability) and permitting mining to continue without

additional regulation (which might have adversely impacted the values

for which the SRNRA was established).

The Department also rejects the assertion that mining was

considered one of the ``recreational'' activities for which the SRNRA

was established and which the Forest Service must ``promote and

protect'' through its administration. Section 2 of the Act specifically

identifies ``wilderness, water sports, fishing, hunting, camping, and

sightseeing'' as recreational activities occurring in the SRNRA.

Although this recitation is not necessarily exclusive, mining is

clearly not the type of activity that fits comfortably within this

class of recreation pursuits. No changes to the rule were made based on

the comments of these two reviewers.

5. The supplementary regulations target a single class of users and

is punitive. One reviewer contended that the second proposed rule was

punitive and directed at a single class of users of the SRNRA, namely

miners. This reviewer further noted that in other congressionally

designated national recreation areas, supplementary regulations

addressed activities other than just mining and affected parties other

than just miners.

Response: The Department agrees that the supplementary regulations

apply only to those wishing to conduct mineral operations in the SRNRA,

but disagrees that they are punitive. The narrow focus of the

regulations is based on the statutory authority in Section 8 of the Act

which pertains explicitly and exclusively to mining. The legislative

history of the Act reinforces the view that Congressional intent in

adding this provision was to avoid or minimize mining practices that

might negatively impact the resource values for which the SRNRA was

established.

With regard to mining, the amendments would give explicit

recognition to the rights associated with valid existing claims, and

direct the Secretary to issue supplementary regulations designed to

``promote and protect'' the purposes for which the recreation area

is created. Although I remain concerned about the potential for

destructive mining, I am hopeful that the supplemental regulations

will address those concerns.

136 Cong. Rec. H13045, 13046 (Oct. 26, 1990) (Statement of Rep. Bosco).

The Department disagrees with the reviewer's suggestion that the

scope of these regulations should be expanded based on similarly

expansive supplementary regulations in other congressionally designated

national recreation areas. The statutes which established these other

areas specifically address the types of issues to be covered by the

regulations. See, e.g., the Sawtooth National Recreation Area Act, 16

U.S.C. 460aa-3, -10; the Hells Canyon National Recreation Area Act, 16

U.S.C. 460gg-7(a-e).

Since limiting the scope of this rule to mineral operations in the

SRNRA is fully consistent with the Act and its associated legislative

history, the Department declines to expand the scope of the final rule

to address other uses and activities occurring within the SRNRA.

Therefore, no changes to the rule were made based on this comment.

6. The rule was drafted to eliminate mining from the SRNRA and, in

so doing, it does not provide for the wise use and sustained

productivity of its resources. One reviewer asserted that the second

proposed rule would result in the elimination of mining from the SRNRA

and, thus, would not provide for the wise use and sustained

productivity of resources as required by the Act.

Response: The Department disagrees with this comment. The Act, not

this rule, prohibits mining in the SRNRA, except where valid existing

rights can be established. This rule merely prescribes the procedure to

be used by the Forest Service to determine whether valid existing

rights are present and, if so, the appropriate terms and conditions

under which the mining operations should be conducted in order to

ensure that the values for which the SRNRA was established are

protected in perpetuity. No change was made to this rule based on this

comment.

7. Forest Service's strategy of delay and burden has already

resulted in abandonment of 4,500 claims in the SRNRA. One reviewer

accused the Department, through its delay in the promulgation of this

rule, of being responsible for the abandonment of more than 4,500

mining claims in the SRNRA.

Response: The Department disagrees with this reviewer's contention.

According to records maintained by the Bureau of Land Management, there

were approximately 2,776 claims listed as ``open'' when the SRNRA was

established in 1990. Assessment work for over one-half of those claims

had not been recorded with BLM for the 1989-1990 assessment year. In

some cases, assessment work had not been recorded for several years

prior to the establishment of the SRNRA. As a result, in 1991, BLM

issued ``abandoned and void'' decisions on 1,329 claims in the SRNRA.

None of these abandonment decisions resulted from any actions, or lack

thereof, as the case may be, by the Department. This meant that

approximately 1,447 mining claims were still listed on National Forest

System lands within the SRNRA in 1991.

Beginning with the 1993-1994 assessment year, the Bureau of Land

Management instituted a new nationwide fee system requiring holders of

more than ten claims to pay a $100 per claim fee while allowing holders

of ten or fewer claims to obtain an exemption from the fee requirement.

Of the approximately 1,447 mining claims in the SRNRA in 1991, fees

were paid or exemptions obtained on only 320 claims. As a result, the

Bureau of Land Management issued ``abandoned and void'' decisions on an

additional 1,127 claims in the SRNRA. Once again, the abandonment of

these claims was unrelated to Forest Service administration of the

SRNRA.

Since then, the holders of an additional 23 claims have failed to

pay the required fees or obtain an exemption to the fees. These claims

also have been declared abandoned and void by BLM. Thus, there are only

297 open claims in the SRNRA at this time. No change to the rule was

required based on this comment.

8. Limiting ``recreational mining'' is inconsistent with the SRNRA.

Two reviewers stated that the purposes for which the SRNRA was

designated include recreational mining and prospecting activity and

that any attempt to limit recreational mining is at odds with

congressional intent.

Response: Executive agencies of the Government cannot permit

activities involving the search for, and removal of, minerals on

federal lands, including National Forest System lands, except to the

extent that Congress has enacted legislation authorizing those

activities.

[[Page 15046]]

This limitation results from Section 3 of Article 4 of the United

States Constitution which provides in pertinent part that: ``Congress

shall have Power to dispose of and make all needful Rules and

Regulations respecting the Territory or other Property belonging to the

United States * * * .'' Accordingly, as the United States Supreme Court

has observed, the United States owns the minerals found on its lands

``and it lies in the discretion of Congress, acting in the public

interest, to determine how much of the property it shall dispose.''

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 336 (1936).

In 1872, Congress enacted general mining laws providing for the

disposal of locatable minerals on federal lands now included in the

SRNRA. 30 U.S.C. 22 et seq. However, in 1990, when Congress enacted the

Act, it expressly withdrew the SRNRA from the operation of the mining

laws, subject to valid existing rights. 16 U.S.C. 460bbb-6(a). As noted

in the Supplementary Information section, some of the federal land

within the SRNRA had been withdrawn from the operation of the mining

laws prior to the enactment of the Act in 1990. Congress concluded that

mining in the SRNRA was inconsistent with the purposes for which the

SRNRA was established or else it would not have withdrawn these lands

from the operation of the United States mining laws. To construe the

Act as authorizing mining of locatable minerals, whether that mining is

characterized as being for ``recreational'' or ``commercial'' purposes,

absent the existence of valid existing rights, would frustrate

Congressional intent to block that very activity.

In summary, the only mineral activities that may occur in the SRNRA

are those for which valid existing rights have been established, those

authorized by a mineral materials contract or permit, or those

associated with outstanding mineral rights. The Department has no

authority to allow locatable mineral activities on lands in the SRNRA,

whether the activity is characterized as a recreational pursuit or a

commercial venture, unless the Government determines that valid

existing rights have been established. This prohibition applies even if

an individual wishes to mine for personal enjoyment rather than

financial gain and even if the impact on the lands and resources of the

SRNRA is minimal. Therefore, no change has been made in the rule as a

result of these comments.

9. Plan of operations should not be required for suction dredge and

sluice operations. Two reviewers contended that the rule should not

require plans of operations for suction dredge and sluice operations.

Response: Locatable mineral operations on National Forest System

lands are primarily governed by the current locatable mineral

regulations at 36 CFR part 228, subpart A. In the past, suction

dredging operations in the SRNRA have been authorized by plans of

operations, notices of intent, and, occasionally, without any written

authorization at all. However, as noted previously, in establishing the

SRNRA, Congress specified that subject to valid existing rights, all

locatable mineral operations on federal land are prohibited.

Furthermore, even in those instances where an operator establishes

valid existing rights to conduct dredging operations, those operations

would still be subject to regulation to ensure that the values for

which the SRNRA was established were protected and enhanced.

By requiring a plan of operations for suction dredging activities,

the Department can accomplish two objectives. First, it can verify that

the operator possesses valid existing rights to conduct suction

dredging operations. Second, it can ensure that the impacts of the

suction dredging operations are minimized to the extent practicable in

order to protect and preserve the values for which the SRNRA was

established. The Department believes that in order to protect the

unique fishery and other resource values of the SRNRA, careful and

considered evaluation of all suction dredging activities is necessary.

The best mechanism for this to occur is through the process of

developing and reviewing a plan of operations. Therefore, no changes

were made in the final rule to exempt suction dredging activities from

the plan of operations requirements.

10. Review periods of one to two years for proposals to conduct

suction dredge operations is onerous and doesn't promote ``recreational

mining''. One reviewer asserted that suction dredge operations and

sluicing have negligible impact on surface resources and should not be

required to be approved under a plan of operations with a possible

processing timeframe of 1 to 2 years.

Response: As an initial matter, it should be noted that the

Department does not agree that all suction dredging and small scale

sluicing operations have negligible environmental impacts. Furthermore,

the impacts of these activities must be evaluated individually and

cumulatively. It may well be that the effect of an individual operation

is minimal, but the cumulative effect of several such operations may be

significant.

With respect to the time it takes to review a plan of operations,

the rule sets out 2 years as the maximum amount of time (except for

good cause shown) to evaluate whether valid existing rights are

present. Under certain circumstances, it may not take the full 2 years

to complete this evaluation.

The issue concerning whether the Department has the authority to

permit ``recreational mineral activities'' absent valid existing rights

has been addressed previously. Based on the foregoing, no change was

made in the final rule in response to this comment.

11. Characterization of nickel-cobalt resources as ``low grade''.

One reviewer objected to the characterization of the nickel-cobalt

resources in the uplands of the Smith River watershed as ``low-grade''

to the extent that this characterization suggests that the resources

are either insignificant or unworthy of development and requested that

the characterization ``low-grade'' be deleted from the preamble.

Response: ``Low grade'' is a phrase commonly used within the mining

industry to describe situations where the anticipated percentage of

elements in a given area is less than the percentage of the same

elements currently being mined elsewhere. This is an apt description of

the nickel-cobalt resources in the SRNRA. In fact, the holder of most

of the claims in the SRNRA where the nickel-cobalt resources are

located has previously acknowledged that the grade of the nickel-cobalt

resources in the SRNRA is less than the grade of nickel-cobalt

resources being mined in other parts of the world. No change was made

to the rule as a result of this comment.

12. The proposed rule underestimates the amount of time required

for an operator to gather and submit information required as part of a

plan of operations. One reviewer commented that the proposed rule's

estimate of 2 hours as the time required for an operator to gather and

submit information required by the Forest Service as part of a plan of

operations was too low.

Response: The Department has reassessed its original estimate.

Initially, it was thought that an operator could gather the data and

complete a plan of operations in 2 hours. The Department continues to

believe that the vast majority of the data and information required for

a plan of operations should be in the possession of the operator or is

readily obtainable and should take only a couple of hours to compile

and submit. However, in response to the

[[Page 15047]]

comments received on this issue, the estimated time to gather the

requested information and prepare a plan of operations has been

increased from 2 to 20 hours. The final information package submitted

to the Office of Management and Budget estimates that it will take an

average of 20 hours to gather and submit the information required for

review and that, on average, two parties will submit plans of operation

to the Forest Service each year for review. This results in an

estimated total annual burden of 40 hours. Based on the comment

regarding the time it takes to gather and submit information for a plan

of operations, a change was made in the ``Controlling Paperwork Burdens

on the Public'' section of the preamble for the second final rule.

13. The proposed rule effects a taking of property without just

compensation in violation of the Fifth Amendment of the Constitution.

One reviewer suggested that the mere publication of a proposed rule for

notice and comment violated the Fifth Amendment by taking property

without just compensation.

Response: The Department disagrees with the comment. The Fifth

Amendment states in part ``* * * nor shall private property be taken

for public use without just compensation.'' The act of publishing a

proposed rule for notice and comment does not deprive anyone of a

property interest protected by the Fifth Amendment. Indeed, a proposed

rule is not even enforceable. It is only after a final rule is

published in accordance with the provisions of the Administrative

Procedures Act that a regulation becomes enforceable. Thus, the

publication of a proposed rule cannot constitute a taking. Therefore,

no change to the preamble was made based upon this comment by a

reviewer.

14. Compliance with Executive Order 12630. Several reviewers took

issue with the means by which the agency satisfied the obligations of

Executive Order 12630 which requires agency officials to evaluate the

potential takings implications of their actions. These reviewers

asserted that evaluating the agency action of publishing a proposed

rule for potential takings liability was ``disingenuous,'' ``false

reasoning,'' and ``make(s) a mockery'' of the Executive Order. Two of

the reviewers suggested that the takings implication of the final rule

should be evaluated as well.

Response: The Department disagrees with the reviewers. Executive

Order 12630 was issued in 1988 to facilitate internal analysis of the

potential takings implications of proposed agency actions. The

objective of the Executive Order is to ensure that agency officials are

notified in advance of the potential takings implications associated

with proposed actions. Such advance notice should minimize inadvertent

takings and may lead to modifications of the proposed action, although

there is nothing in the Executive Order which requires an agency to

modify proposed actions to avoid a potential taking. Executive Order

12630 specifically provides that it is ``intended only to improve the

internal management of the Executive branch and is not intended to

create any right or benefit, substantive or procedural, enforceable at

law by a party against the United States, its agencies, its officers,

or any person.''

The only agency action at issue in this instance was the

publication of a proposed rule. As indicated previously, a proposed

rule is not enforceable as law and, therefore, cannot affect private

property. Furthermore, it would have been inappropriate to evaluate the

underlying provisions of the proposed rule for takings implications

since those provisions might be subsequently modified in the final

rule.

A takings implication assessment has been prepared on this second

final rule. It concludes that the action of publishing a final rule

does not present the risk of a taking. It does, however, acknowledge

that the regulation, as applied in a specific case, may present the

risk of a taking. Since takings claims are highly fact specific, it is

not prudent to engage in further conjecture at this time regarding

whether private property might be taken as a result of the ``as

applied'' affect of the rule on private property. Among the factors

that would be considered if such a claim arose are the character of the

government action, the economic impact of the government action on the

property, and the reasonable investment backed expectations of the

property owner. For obvious reasons, it is impossible to make judgments

regarding these factors at this point. However, additional takings

implication assessments will be prepared in accordance with Executive

Order 12630 to evaluate potential takings risks associated with agency

implementation of these supplementary regulations. No change was made

to the final rule based on this comment. However, a takings implication

assessment was prepared on the final rule.

Specific Comments on Proposed Subpart G

The following discussion addresses comments on specific sections of

the proposed rule and, where applicable, identifies modifications in

the final rule made as a result of the comments.

No comments were received on Sec. 292.61--Definitions,

Sec. 292.66--Operating Plan Requirements, Sec. 292.67--Operating Plan

Approval, and Sec. 292.68--Mineral Material Operations. Consequently,

the final rule adopts the text of these sections as originally

proposed, and no further discussion is included in this analysis.

In addition, in Sec. 292.60, one typographical error has been

corrected and paragraph (e) has been deleted. The decision to eliminate

paragraph (e) which dealt with the effect of the supplementary mining

regulations on ongoing mineral operations was made because there are no

ongoing operations in the SRNRA at this time nor are any plans of

operations currently being considered. Thus, it was determined that the

deletion of paragraph (e) would simplify the supplementary regulations

by eliminating a provision that discusses a contingency which does not

exist. Beyond that, no additional changes were made to Sec. 292.60 and

it is not discussed further in this analysis.

Finally, citations in this final rule to these regulations or to

other regulations applicable to the administration of National Forest

System lands have been modified to conform with the format established

by the Office of the Federal Register. These changes do not affect the

rights and obligations of the Federal Government or any affected

interests.

Section 292.62, Valid Existing Rights

Paragraph (a) of this section sets forth three definitions of

``valid existing rights'' that will be used to evaluate mining claims

in the SRNRA. The only difference in the three definitions is the date

by which the location and discovery of the valuable mineral deposit

must have occurred. The definition that applies to a given mining claim

will depend on whether the claim lies on federal lands within the

corridor of a wild segment of a wild and scenic river designated in

1981, within that portion of the Siskiyou Wilderness designated in

1984, or within the remainder of the SRNRA. Paragraph (b) of this

section provided that limited mining operations may be authorized in

order to enable an operator to confirm that discovery of a valuable

mineral deposit occurred prior to the applicable date of withdrawal.

This paragraph provided that the operations would be ``limited in scope

and duration'' but did not provide independent authority to prospect,

explore, or make a new discovery.

Comment: The Forest Service is without authority to alter the

United States mining laws in defining valid existing rights. One

reviewer agreed

[[Page 15048]]

with the definition of valid existing rights in paragraph (a)(3) if it

merely requires the claimant to have a valid mining claim as of the

date of enactment of the Act, the claim has not been subsequently

abandoned, and the appropriate fees and filings have been made. The

reviewer objected to any additional requirements of the definition in

paragraph (a)(3) which would allegedly alter the United States mining

laws. In particular, the reviewer urged that paragraph (a)(3)(iv) be

confined to the technical aspects of retaining a valid unpatented

mining claim. The reviewer further stated that paragraph (a)(3)(iv)

should not be construed to allow the Forest Service to evaluate the

continued validity of a mining claim even though the reviewer

acknowledged that the Bureau of Land Management possessed that

authority.

Response: Initially, it should be noted that the United States

mining laws do not contain a definition of ``valid existing rights.''

To the extent that a definition of ``valid existing rights'' exists, it

is largely the product of judicial and administrative interpretations

of the United States mining laws. The definition of ``valid existing

rights'' in Sec. 292.62(a) is fully consistent with the United States

mining laws, relevant case law, and administrative interpretations.

These authorities have long held that for a mining claim to be valid it

must be properly located, supported by the discovery of a valuable

deposit of a locatable mineral, located and held in good faith, and

properly maintained in compliance with certain filing requirements and

annual labor or fee requirements. For a mining claim located in a

withdrawn area to constitute a valid existing right, the claim must

have been valid prior to the effective date of the withdrawal of the

area, continue to be held in good faith, continue to be maintained in

compliance with filing and annual labor or fee requirements, and

continue to be supported by the discovery of a valuable mineral

deposit. The last element means that the mineral deposit must continue

to remain valuable. In that regard, it is well established that the

exhaustion of a mineral deposit or loss of its marketability will lead

to a finding that the mining claimant no longer possesses valid

existing rights.

To the extent that the reviewer is suggesting that the Forest

Service may not examine issues relevant to the question of whether a

mining claim constitutes a valid existing right, except in connection

with a mineral contest initiated by the Bureau of Land Management, the

position of this Department as well as the Department of the Interior

is to the contrary.

We recognize that a final determination that a claim is invalid

for lack of discovery can be made only after a contest proceeding.

We also recognize, however, that the mere location of a claim does

not presumptively make it valid and that an agency operating under a

mandate to minimize surface disturbance may properly require the

mining claimant to affirmatively establish the existence of a valid

existing right * * * before allowing operations to proceed.

Richard C. Swainbank, 141 IBLA 37, 44 (1997)(citation omitted). While

Swainbank involved the National Park Service, its holding applies to

the Forest Service, which, like the National Park Service, also

operates under a mandate to minimize surface disturbance resulting from

locatable mineral operations.

Since the Act withdrew the lands in the SRNRA from the operation of

the United States mining laws subject to valid existing rights, it is

not within the Department's discretion to authorize operations within

the SRNRA unless the claimant can demonstrate that the mining claim

satisfies all of the requirements in Sec. 292.62(a) and, therefore,

constitutes a valid existing right. No change has been made in the

final rule in response to this comment.

Comment: The Forest Service must approve operations for the purpose

of confirming a discovery of a valuable locatable mineral deposit. Two

reviewers objected to Sec. 292.62(b) because they contend it unlawfully

gives the Forest Service broad discretion to refuse to permit

operations necessary to confirm the discovery of a valuable mineral

deposit consistent with the definition of valid existing rights in

Sec. 292.62(a). One of the reviewers who contended that the Forest

Service must approve such operations, nonetheless, criticized the

Forest Service for including this provision in the proposed rule,

arguing that it simply provides another opportunity to delay a mining

claimant's exercise of the rights accorded by the United States mining

laws.

One of the reviewers also objected to the use of the term

``limited'' when describing operations to gather information to confirm

the existence of a discovery of a valuable mineral deposit that

predated the withdrawal of the SRNRA from the operation of the mining

laws. The same reviewer also objected to the provision in

Sec. 292.62(b) which stated that the information gathering operations

would be ``limited in scope and duration.''

The second reviewer proposed that the Sec. 292.62(b) be revised to

specifically authorize mineral operations necessary to demonstrate the

quantity and quality of the mineralization.

Response: Section 292.62(b) was added to the second proposed rule

to address situations that might arise in the SRNRA when a mining

claimant must gather information to confirm that the discovery of a

valuable mineral deposit occurred prior to the withdrawal of the SRNRA

from the operation of the mining laws. In response to the comments

received, this paragraph has been reworded to clarify that an

authorized officer must approve a proposed plan of operations submitted

by a mining claimant to conduct mineral operations which may be

necessary to gather information to confirm the discovery of a valuable

mineral deposit consistent with the rule's definition of ``valid

existing rights.'' The claimant must, however, provide sufficient

information to demonstrate that the exposure of valuable minerals on

the claim predated the withdrawal of the land.

Section 292.62(b) codifies administrative interpretations of the

United States mining laws which hold that, under certain circumstances,

a mining claimant is entitled to an opportunity to collect further

information to assist in the determination of whether the mining claim

constitutes a valid existing right. The Department does not understand

how a procedure that a mining claimant has voluntarily elected can

constitute an impediment to an exercise of any rights which the

claimant may possess. The procedure provides a mechanism for a claimant

to bolster his claim of valid existing rights and presumably this

procedure would not be elected by a claimant who is confident that he

already possesses such rights. Accordingly, the Department sees no

reason to modify Sec. 292.62(b) based on this comment.

The Department agrees that there was no need to refer to operations

conducted pursuant to Sec. 292.62(b) as ``limited.'' Similarly, the

Department agrees that there is no need to limit the scope and duration

of operations carried out under Sec. 292.62(b). Therefore, these words

have been omitted from the final rule. However, these changes do not

modify the Forest Service's authorities or a mining claimant's rights.

The administrative interpretations of the United States mining laws on

which Sec. 292.62(b) is based, recognize that the mineral operations,

which a mining claimant has the right to conduct on a claim located on

withdrawn lands prior to a determination that the claim constitutes a

valid existing right, are

[[Page 15049]]

inherently limited and those limitations are reflected in the other

provisions of Sec. 292.62(b). See, e.g., United States v. Conner, 139

IBLA 361, 372 (1997); United States v. Crowley, 124 IBLA 374, 378-379

(1992); United States v. Mavros, 122 IBLA 297, 310-311 (1992).

The Department does not agree that Sec. 292.62(b) should be revised

to require the authorized officer to approve mineral operations needed

to demonstrate the quantity and quality of mineralization on a mining

claim in the SRNRA. Mineral operations on withdrawn lands may not be

permitted for the purpose of exposing new veins or lodes or performing

work which would otherwise result in the discovery of a valuable

mineral deposit. United States v. Parker, 82 IBLA 344, 384 (1984);

United States v. Chappell, 42 IBLA 74, 81 (1979). Thus, the Government

lacks authority to permit mineral operations pursuant to Sec. 292.62(b)

for the purpose of demonstrating the quantity and quality of

mineralization on a mining claim unless those operations constitute an

effort to confirm or corroborate the preexisting exposure of a valuable

mineral deposit discovered prior to the withdrawal of the lands. United

States v. Chappell, 42 IBLA 74, 81 (1979).

Based on the reviewers' comments, Sec. 292.62(b) has been revised

to clarify these points.

Section 292.63, Plan of Operations--Supplementary Requirements.

Paragraph (a) of this section specified that a plan of operations

is required for all mineral development activities within the SRNRA

where a plan would be required under 36 CFR part 228, subpart A, or

when mechanical or motorized equipment would be used. Operations

covered by this requirement would include, but not be limited to, those

using suction dredges or sluices. Paragraph (b) specifically identified

the information required in a plan of operations to evaluate an

assertion of valid existing rights. Paragraph (c) identified the

information required by the Forest Service to evaluate the operational

details and impacts of the proposed mineral development activity as

well as to determine the appropriate standards to mitigate and reclaim

the affected areas.

Comment: A title report prepared by a private certified mineral

title examiner should be sufficient to establish chain of title and

valid existing rights. Two reviewers suggested that an operator should

have an alternative way to satisfy the ``paperwork chain-of-title

step'' by providing the Forest Service a report from a certified

mineral title examiner or title company which shows an unbroken chain-

of-title and valid existing rights.

Response: Proposed Sec. 292.63(b) merely identified the specific

information that must be furnished to the Forest Service by the

operator in support of the operator's contention that the mining claim

constitutes a valid existing right. The operator is free to use anyone,

including private certified mineral title examiners or title companies,

to collect and assemble the specified information in whatever manner

the operator deems appropriate. Thus, no change is required in the rule

to enable the operator to use private mineral title examiners or title

companies to collect and submit the required information.

The respondents also might be suggesting that the Department should

not question the opinion of a private certified mineral title examiner

or title company on the issue of whether a mining claim constitutes a

valid existing right. The Department does not agree with this

suggestion. The Government has a duty to insure that valid mining

claims are recognized, invalid mining claims are eliminated, and the

rights of the public are preserved. Cameron v. United States, 252 U.S.

450, 460 (1920). This duty is significant because, as the Supreme Court

also recognized in that case, unlawful mining claims result in private

appropriations of land which rightfully belong to the public. The

Department believes that it would be inappropriate to entrust a party

retained and paid for by the proponent of an allegedly valid claim to

discharge the government's duty to determine that very question.

For the same reasons, the information that is submitted to the

Forest Service pursuant to Sec. 292.63(b) cannot simply be a statement

by a certified mineral title examiner or a title company that there is

a continuous chain-of-title and that the mining claim constitutes a

valid existing right. The submission made pursuant to Sec. 292.63(b)

must include the listed items and the information must be provided with

specificity so that the government can fulfill its obligation to

determine whether the operator has the right to conduct mineral

operations in the SRNRA. Therefore, no change has been made to the

final rule as a result of these comments.

Comment: Evidence of past or present sales of minerals cannot be

required to establish valid existing rights. Three respondents objected

to what they perceived to be a mandatory requirement that an operator

submit evidence of past and present sales of a valuable mineral as part

of a plan of operations. One respondent noted that there is no

requirement in the United States mining laws that a claimant must have

actually marketed the minerals discovered in order to establish the

validity of the mining claim. The other two reviewers contended that

the requirement is not supported by case law or legal precedent. One

respondent observed that minerals may not have been produced or sold

from mining claims which constitute valid existing rights, particularly

with respect to lode mining claims in the developmental stage. That

respondent also noted that many mining claims have been patented before

any production occurred.

Response: The Department agrees that the United States mining laws

do not require that a mining claimant must have marketed minerals in

order to establish the validity of a mining claim. It is possible for

an operator to prove that a mining claim constitutes a valid existing

right without having produced minerals from the claim or having sold

any minerals that have been produced. The Department also agrees that

mining claims have been patented before mineral production has

occurred. In proposing Sec. 292.63(b)(9), the Department did not intend

to suggest that an operator could not make an adequate showing of valid

existing rights absent mineral production or absent past or present

sales of minerals from the claim, or to preclude the operator from

making that showing.

Nonetheless, evidence of mineral sales is relevant to the

operator's assertion that valid existing rights have been established.

Sales information represents confirmable documentation that mineral

production has occurred on a mining claim. Evidence of mineral

production is important because Department of the Interior rules

recognize that ``(u)ncontradicted evidence of the absence of production

over an extended period of time may, in and of itself, establish a

prima facie case of invalidity.'' United States v. Miller, 138 IBLA

246, 277 n.18 (1997) (citation omitted). The Department of the Interior

has explained that ``(t)his rule reflects the principle that, given the

varying economic conditions present over a period of many years, a

mining claim will usually be developed unless it is not commercially

feasible to do so profitably. In other words, the best evidence of what

a prudent man would do is what a prudent man has done.'' United States

v. Knoblock, 131 IBLA 48, 88 (1994) (citation omitted).

For these reasons, no change has been made in Sec. 292.63(b)(9) of

the final rule except to insert the word ``existing'' at the beginning

of the paragraph. This

[[Page 15050]]

change makes it clear that an operator is not required to submit

evidence of sales which have not occurred or to submit evidence which

no longer exists. To the extent that sales evidence exists, it is

directly relevant to the determination of valid existing rights and

must be provided.

Comment: The reference in the preamble to Sec. 292.63(c)(3)

regarding concurrent reclamation was erroneous. One reviewer observed

that the preamble referred to a provision of the proposed rule

regarding concurrent reclamation at Sec. 292.63(c)(3) but that no such

provision existed in the text of the proposed rule.

Response: The reviewer is correct and a change was made in the

final rule. The provision concerning concurrent reclamation is set

forth at Sec. 292.69. The Department apologizes for any confusion the

incorrect citation may have caused.

Section 292.64, Plan of Operations--Approval

Section 292.64 of the proposed rule sets forth the procedure that

would be followed to review and approve a plan of operations submitted

in conformance with Sec. 292.63. Paragraph (a) stated that within 120

days of submission, the Forest Service would notify the applicant

whether all the necessary information had been included or whether

additional documentation was necessary. In addition, where all the

necessary information had been included, this paragraph further

explained that except for good cause shown, the Forest Service would

determine whether the applicant possessed valid existing rights within

2 years. Paragraph (b) provided that if an applicant failed to

demonstrate to the satisfaction of the Forest Service that valid

existing rights had been established, it would notify the applicant in

writing of its finding and that it would request the Bureau of Land

Management to initiate a mineral contest action. Paragraph (c) stated

that an assessment by the Forest Service that an applicant does not

possess valid existing rights was a final agency action that was not

subject to further administrative appeal within the Department.

Paragraph (d) explained that when valid existing rights are present,

the Forest Service would proceed to review the rest of the plan of

operations which consists largely of the operational details of the

mineral development activities being proposed. Paragraph (e) required

the Forest Service to notify the applicant whether the plan has been

approved or rejected, and paragraph (f) required the Forest Service to

explain in writing the reason(s) for not approving a plan. For plans

that are approved, paragraph (g) required the Forest Service to

establish an approval period which would be equal to the minimum amount

of time it would reasonably take a prudent operator to complete the

mineral development activities set forth in the plan. Paragraph (h)

identified the circumstances that would justify a modification to an

approved plan of operations. Finally, paragraph (i) required an

operator to develop a new plan of operations or amend a previously

approved plan of operations, if the mining operations differed in type,

scope, or duration from those described in the original plan, and if

those differences would result in resource impacts not anticipated when

the original plan was approved.

Comment: The allocation of 120 days to determine whether an

applicant had included all the required information in a plan of

operations was excessive. All the reviewers remarked that the Forest

Service should be able to determine in less than 120 days whether a

plan of operations is complete.

Response: The Department agrees. Determination of whether a plan of

operations is complete should be a fairly routine task that entails a

comparison of the items listed in Sec. 292.63 of the rule with the

items submitted by the applicant as part of the plan of operations.

Clearly, acknowledgment that a plan is complete should not be construed

as a determination that valid existing rights have been established or

that the plan has been approved. It merely means that the necessary

information has been supplied and that the Forest Service will use this

information to conduct its review. In light of the comments received,

the time to complete this task has been shortened to 60 days in the

final rule.

Comment: The proposed rule turns mining law ``upside down'' by

making a claimant prove valid existing rights under a burdensome and

lengthy process and unlawfully provides that mineral development

activities of those possessing valid existing rights are subject to

regulation. One reviewer contended that because claimants are entitled

to the exclusive use and possession of the valuable minerals they

discover, the proposed rule violates the United States mining laws by

shifting the burden from the Government to the operator to demonstrate

the establishment of valid existing rights. In addition, by making this

burden as onerous and time consuming as possible, the reviewer asserted

that the proposed rule is an attempt to drive all mining out of the

SRNRA. Finally, this reviewer contended that the proposed rule violates

Congress's specific instructions that mining claimants are not to be

disturbed by the Department's management of the SRNRA.

Response: The Department disagrees with this reviewer's

characterizations. The exclusive use and possession referred to by this

reviewer applies to other private parties but not to the United States,

which, in this instance, is responsible for the administration of the

National Forest System lands in the SRNRA on which the claims are

located. The mere location of a claim does not presumptively make it

valid and an agency operating under a mandate to minimize surface

disturbance may properly require the mining claimant to establish the

existence of a valid existing right before allowing operations to

proceed. Richard C. Swainbank, 141 IBLA 37, 44 (1997).

In response to the allegation that the process was ``as onerous and

time consuming as possible,'' the Department merely states that one of

the primary objectives of this rule is to ensure that those conducting

mineral development activities in the SRNRA have established that they

possess valid existing rights. The Department does not believe that a

system, requiring that the party asserting valid existing rights

produce whatever evidence is in its possession to substantiate its

claim, is either onerous or time consuming. It is not the intent of the

Department to eliminate mining in the SRNRA in those instances where

valid existing rights have been established.

Finally, the Department disagrees with the assertion that holders

of valid existing rights are not to be disturbed by the Forest

Service's administration of the SRNRA. Although the reviewer refers to

``Congress'' specific instructions,'' no citation to the Act is

supplied. The Department believes that the reviewer may be relying on

Section 8(c) of the Act for this proposition. However, Section 8(c)

prohibits mineral development activity on federally owned land in the

SRNRA subject to valid existing rights. 16 U.S.C. 460bbb-6(c). Section

8(c) does not address under what circumstances mineral development

activities may be conducted in the SRNRA where valid existing rights

have been established. That direction is set forth in Section 8(d) of

the Act which provides for the issuance of supplementary mining

regulations. Id. at section 460bbb-6(d). Unlike Section 8(c), Section

8(d) does not include a ``subject to valid existing rights'' proviso.

Id. Thus, all mining activities in the SRNRA are subject to

[[Page 15051]]

the supplementary regulations, a view corroborated by legislative

history. The original version of the SRNRA legislation would have

prohibited all mineral development activities. As a result of concerns

for the potential takings liability associated with a blanket

prohibition on all mining activities, the legislation was subsequently

amended to prohibit mining subject to valid existing rights and to

authorize supplementary regulations governing all mining operations for

which valid existing rights were established. The chief sponsor of the

Act commented,

With regard to mining, the amendments would give explicit

recognition to the rights associated with valid existing claims, and

direct the Secretary to issue supplementary regulations designed to

`promote and protect' the purposes for which the recreation area is

created. Although I remain concerned about the potential for

destructive mining, I am hopeful that the supplemental regulations

will address these concerns.

136 Cong. Rec. H13045, 13046 (Oct. 26, 1990) (Statement of Rep. Bosco).

The Act and the legislative history are clear that only those operators

who have established valid existing rights may conduct mineral

development activities in the SRNRA and, where allowed, those

activities must be conducted in conformance with the provisions of this

rule.

Alternatively, the reviewer may be contending that the Department

lacks authority to require a mining claimant to establish that a mining

claim constitutes a valid existing right which survived the withdrawal

and that the only means for the Government to consider the valid

existing rights issue is in connection with a mineral contest

proceeding before the Bureau of Land Management. If that is the

reviewer's contention, it is plainly inconsistent with the Department

of the Interior's administrative interpretations of the United States

mining laws.

As discussed previously, there is nothing in the Act to suggest

that persons with valid mining claims predating the establishment of

the SRNRA were not to be disturbed by the Department's management of

the SRNRA. Rather, Congress merely withdrew the SRNRA from the

operation of the United States mining laws ``subject to valid existing

rights'' just as it has done many times with respect to other federally

owned lands. In discussing a situation where mining operations could

only be conducted as an incident of a valid existing right, the

Interior Board of Land Appeals observed that ``(a)ny inference * * *

that the mere location of a mining claim raises a presumption of

validity, vis-a-vis the United States is plainly wrong. The mere

assertion of a claim to land is simply that.'' Southern Utah Wilderness

Alliance, 125 IBLA 175, 188 n.7 (1993). The Board also observed that

even in a contest proceeding brought by the government ``it is the

claimant who must establish the validity of the claim.'' Id. The Board

then recited its holding in Havlah Group, 60 IBLA 349, 361 (1981) that

``it is not unreasonable to require a claimant to make a preliminary

showing of facts which support a valid existing right.'' Id. at 188. In

Havlah Group, where a proposed plan of operations had been submitted

for lands on which all actions of the Secretary of the Interior under

the statute were ``subject to valid existing rights,'' the Board noted

that once the claimant had submitted a preliminary showing, the Bureau

of Land Management could either bring a mineral contest challenging the

validity of the claim or permit the operations to go forward. 60 IBLA

at 361. See also, Richard C. Swainbank, 141 IBLA 37, 44 (1997); Richard

C. Behnke, 122 IBLA 131, 140 n.13 (1992). Thus, persons holding mining

claims in the SRNRA are not entitled to any presumption that those

claims constitute valid existing rights. It is fully consistent with

the Act and the United States mining laws for the Department, which

operates under a mandate to minimize surface disturbance caused by

mining operations, to require claimants ``to affirmatively establish

the existence of a valid existing right * * *.'' Richard C. Swainbank,

141 IBLA at 44. For these reasons, no changes have been made in the

final rule in response to these comments.

Comment: There was no explanation of what might constitute ``good

cause'' so as to justify an extension of time beyond 2 years for the

Forest Service to complete a valid existing rights determination. One

reviewer objected to Sec. 292.64(a)(1) and asserted that the proposed

rule failed to explain ``good cause'' or otherwise justify why it might

take longer than 2 years to complete a valid existing rights

determination given that, among other things, Sec. 292.63(b) requires

the operator to provide all of the information necessary to make a

valid existing rights determination. With respect to the examples of

good cause mentioned in the preamble to the proposed rule, the reviewer

argued that matters such as budget and manpower availability are within

the control of the Forest Service and that weather considerations are

unimportant because there is little need for a site visit to determine

the validity of the type of mining claims occurring in the SRNRA.

Response: The Department disagrees to the extent that the

respondent suggests that the Forest Service only needs the information

submitted by a claimant in order to make a valid existing rights

determination. The Government has a responsibility to insure that valid

mining claims are recognized, invalid mining claims are eliminated, and

the rights of the public are preserved. Cameron v. United States, 252

U.S. 450, 460 (1920). This responsibility is significant because as the

Supreme Court recognized in that case, invalid mining claims unlawfully

appropriate public lands to private use contrary to the rights of the

public. The Government's independent responsibility to determine the

validity of a mining claim cannot be discharged merely by accepting at

face value whatever information is supplied by the claimant, who is the

proponent of the allegedly valid mining claims. In all cases, the

Government must perform its own field examination of the mining claim

which allegedly constitutes a valid existing right to confirm the

information submitted by the operator.

As explained in great detail in the preamble to the proposed rule,

the field examination of a mining claim and the preparation of a

written mineral report by a certified mineral examiner is a complicated

and lengthy process. While the Department will use its best efforts to

complete the valid existing rights determination within 2 years, many

factors acting singly, or in combination, may make it impossible. Among

those factors are the inaccessibility of field sites due to flooding,

landslides, or fires; the unavailability of qualified personnel due to

reassignments for fire fighting or other emergencies, protracted

medical leave, unanticipated retirements, other previously scheduled

validity, or valid existing rights determinations; the time necessary

to prepare environmental documents required for sampling on the claim;

or the unique technical issues presented by a mining proposal. It is

not possible to identify all of the events and contingencies that could

cause a justifiable delay in a valid existing rights determination. For

these reasons, no change was made in Sec. 292.64(a)(1) in the final

rule.

Comment: The number of mineral examiners in the Pacific Southwest

Region of the Forest Service is unclear. One reviewer noted that there

appeared to be a discrepancy in the second proposed rule regarding the

number of Forest Service mineral examiners in the Pacific Southwest

Region.

[[Page 15052]]

Response: There was no discrepancy. To clarify what was stated in

the second proposed rule, there are five certified mineral examiners in

the region. Two of the five are also certified review mineral examiners

and, therefore, are qualified to conduct mineral examinations and to

serve as reviewers who approve mineral reports prepared by other

mineral examiners. No change was made in the final rule based upon this

comment.

Comment: The FS has adequate staffing to handle the anticipated two

plans per year in less than 2 years. Two reviewers asserted that the

existing cadre of certified mineral examiners in the Pacific Southwest

region should be able to complete valid existing rights determinations

for claims in the SRNRA in less than 2 years since only two plans of

operations are estimated to be submitted per year. One reviewer also

asserted that the Department can allocate its financial and human

resources as it deems appropriate and that it would be improper for the

Department to deploy its manpower in a fashion which precludes

completion of the required examinations in less than 2 years.

Response: An employee who is not certified as a review mineral

examiner or as a mineral examiner, may only work on a valid existing

rights determination under the direct supervision of someone who is

certified. Only certified Forest Service mineral examiners or review

mineral examiners are allowed to conduct valid existing rights

determinations. There are only five such employees in the Pacific

Southwest Region of the Forest Service. These five individuals are

responsible for conducting valid existing rights determinations in all

withdrawn areas in the Pacific Southwest Region, not just the SRNRA. It

would be unfair to individuals whose claims lie outside the SRNRA if

the Forest Service redirected the focus and energy of the five Pacific

Southwest Region examiners so that valid existing rights determinations

in the SRNRA would be completed first. There is no reason that mining

claimants in the SRNRA should be afforded preference over others whose

mining claims are located elsewhere in the region. Accordingly, even

though it is estimated that only two plans of operations will be

submitted annually for mining claims in the SRNRA, those plans must be

reviewed, along with other plans submitted in the region, in the order

that they were received.

The Department agrees that, in theory, it is possible to reassign

Forest Service personnel from other regions to complete priority work

assignments in the Pacific Southwest Region. However, agency staffing

levels are at a significantly lower level than a decade ago due to

reduced congressional appropriations. Current staffing levels do not

permit reassignment of certified mineral examiners without creating

substantial delays in the completion of work which those examiners are

responsible to perform in their regularly assigned region. The work

that would not be completed in the originating region includes the same

type of work; that is, valid existing rights determinations required

before operations are authorized in the many National Forest System

areas that have been withdrawn from the operation of the United States

mining laws subject to valid existing rights. Thus, this comment also

fails to recognize that prioritizing valid existing rights

determinations for claimants in the SRNRA will prejudice similarly

situated claimants in other withdrawn areas.

Furthermore, as discussed in connection with the preceding comment,

it is not just personnel limitations which may result in a valid

existing rights determination taking 2 or more years to complete. Other

factors, which may lengthen the time to make a determination, include:

The short field season in the SRNRA; the time needed to prepare

environmental documents required for surface disturbing sampling

operations; or the inaccessibility of the mining claims due to

flooding, fire conditions, landslides, or other natural conditions. For

these reasons, no change has been made in Sec. 292.64(a)(1) of the

final rule in response to these comments.

Comment: The rule should include a provision requiring ``prompt''

notification of BLM of any adverse valid existing rights determination.

One reviewer observed that the proposed rule properly required that

notice of an adverse valid existing rights determination be given to an

operator that states, among other things, that the Forest Service will

promptly notify the Bureau of Land Management of its determination and

request initiation of a mineral contest. However, the reviewer faulted

the proposed rule for not containing a separate requirement that the

authorized officer promptly notify the Bureau of Land Management of an

adverse determination and request initiation of a mineral contest.

Response: Section 292.64(b) of the proposed regulation required the

Forest Service to notify the operator of a determination that there is

not sufficient evidence of valid existing rights. That paragraph also

required the notice to the operator to state that the Forest Service

will ``promptly'' notify the Bureau of Land Management of its

determination and request the initiation of a mineral contest action.

The Department believed that this provision would insure quick Forest

Service action on the notification to the Bureau of Land Management.

However, to make it perfectly clear that this is also an affirmative

requirement, paragraph (b) has been broken down into paragraphs (b)(1)

and (b)(2). Paragraph (2) contains this affirmative requirement to

notify the Bureau of Land Management of the Forest Service's

determination and to request the initiation of a mineral contest.

Comment: The Forest Service lacks authority to treat an authorized

officer's decision that there is not sufficient evidence of valid

existing rights as final agency action. One reviewer contended that

Sec. 292.64(c), which stated that an authorized officer's decision that

there is not sufficient evidence of valid existing rights was final

agency action, rendered the BLM mining claim contest action process

meaningless. The reviewer also alleged that this provision conflicts

with the March 14, 1997, decision in California Nickel Corporation v.

Glickman, No. C94-3904-DLJ, slip op. (N.D. Cal.). The reviewer

recommended that the final rule include a provision stating that the

Forest Service must change its position concerning valid existing

rights if the Department of the Interior rules in favor of the operator

on a Forest Service's mineral contest. The reviewer also recommended

that the Department make clear in the final rule that referral of the

Department's preliminary adverse valid existing rights determination to

the Department of the Interior is the appropriate administrative

process rather than appeal through the Forest Service or the Department

of Agriculture. Finally, the reviewer recommended that the final rule

state that there is no final determination of valid existing rights

until the Department of the Interior administrative process has been

exhausted.

Response: The term ``final agency action'' in Sec. 292.64(c)

resulted in unintended confusion. This term was used merely to clarify

that an authorized officer's determination would not be subject to

appeal within the Department because the previous paragraph requires

the issue to be referred to the Bureau of Land Management. In response

to this comment and to avoid misinterpretation of the provision, the

term ``final agency action'' has been omitted from Sec. 292.64(c) in

the final rule.

Other changes have been made to this section in the final rule to

make it clear that resorting to the BLM contest

[[Page 15053]]

proceeding is not meaningless and to emphasize that the Forest Service

will recognize that a claimant has valid existing rights if that is the

final determination of the Department of the Interior or of a court

reviewing the Department of the Interior's decision in the contest

action. Specifically, Sec. 292.64(b)(1) has been revised to clarify

that the effect of the authorized officer's determination that there is

insufficient evidence of valid existing rights is to stay further

consideration of the proposed plan of operations pending final action

on the valid existing rights issue by the Department of the Interior or

by final judicial review. Also, Sec. 292.64(d) has been revised to

require the authorized officer to resume consideration of the plan of

operations if the final agency action by the Department of the Interior

or final judicial review of the Department of the Interior decision

determines that valid existing rights exist.

Finally, to address the reviewer's concerns, the remainder of the

language in Sec. 292.64(c) has been retained to make it clear that a

decision finding insufficient evidence of valid existing rights is not

subject to appeal in this Department.

Comment: Once a valid existing rights determination is made in

favor of the operator, the rule should make the authorized officer's

review of the plan of operations subject to the Forest Service's

general mining regulations set forth at 36 CFR 228.5. The proposed rule

provides an unlimited amount of time to complete the review of the

operational aspects of the mineral operation. One reviewer contended

that there is no reason why the applicable time limitations in the

Forest Service's general mining regulations should not apply to

consideration of the operational aspect of a proposed plan of

operations for the SRNRA. With regard to one of the reasons given by

the Department in the second proposed rule for the absence of definite

time limitations for reviewing a plan of operations (the need to comply

with the National Environmental Policy Act (NEPA) for approval of

large-scale operations), the reviewer noted that general regulations

provide that the authorized officer must notify the operator no later

than 30, or at times 90, days after the filing of a plan of operations

that it cannot be approved until completion of NEPA compliance. The

operator contended that this feature of the general mining regulations

keeps the process moving while the proposed SRNRA regulations

institutionalize delay.

Response: The reviewer may have overlooked several reasons, in

addition to NEPA compliance, given by the Department for the absence of

definite time limitations for reviewing proposed plans of operations.

As was stated in the preamble to the second proposed rule, NEPA is just

one of the statutes with which the Forest Service must comply in

reviewing a proposed plan of operations. Compliance with the

requirements of the Endangered Species Act (ESA) can take several

years, and, in contrast to NEPA where the Forest Service is usually in

charge of the compliance process, the priorities and resources of the

National Marine Fisheries Service or the United States Fish and

Wildlife Service often determine the pace of compliance with the ESA.

The reviewer also may be implying that Sec. 228.5 of this chapter

adequately reflects the requirements of NEPA by providing more than 90

days for NEPA compliance. That is not necessarily correct. While 36 CFR

228.5 provides for more than 90 days for review of a plan of operations

when NEPA requires the preparation of an environmental impact

statement, the regulations do not provide more than 90 days for review

of a plan of operations when NEPA requires the preparation of an

environmental assessment. However, the preparation of environmental

assessments usually requires substantially more time than 90 days.

In relying on 36 CFR 228.5, the reviewer overlooks the fact,

recognized in Baker v. United States Department of Agriculture, 928 F.

Supp. 1513, 1519 (D.Idaho 1996), that a ``conspicuous conflict[] occurs

between 36 CFR 228.5 and the requirements of the NEPA and the ESA.'' In

Baker, the court found that the conflict arose because 36 CFR 228.5 was

promulgated in 1974, before the 1978 promulgation of regulations

concerning environmental assessments and before the 1986 promulgation

of regulations under the Endangered Species Act. The Baker court held

that the 90-day time limit in Sec. 228.5 and the regulatory

requirements of the NEPA and the ESA are in ``irreconcilable

conflict.'' Therefore, the court held that ``the 90-day limit must give

way'' due to the conflict with the more recent NEPA and ESA

regulations. Id. at 1520. However, as the court held, this result does

not mean that the ``Forest Service is unencumbered by time limitations

in examining [plans of operations]'' because there are other time

limits in the NEPA and ESA process as well as ``a general rule

prohibiting unreasonable delays.'' Id. Consequently, even if the

requirements of Sec. 228.5 of this chapter are not applicable, Forest

Service review of a proposed plan of operations ``remains subject to

time constraints * * * '' and the SRNRA regulations will not

institutionalize delay. Id.

For these reasons, the Department believes that it would be

senseless and misleading to persons asserting that they possess valid

existing rights to conduct locatable mineral operations in the SRNRA,

to adopt supplementary regulations which rely on the time limitations

for reviewing a plan of operations set forth in the Forest Service's

general mining regulations as requested by the reviewer. While the

Forest Service will make every effort to process plans of operations as

expeditiously as possible, the Department has made no changes to the

text of this section in the final rule.

Comment: The rejection of a plan of operations by the Forest

Service is unlawful and would constitute a taking. One reviewer

asserted that the Forest Service cannot simply refuse to approve a plan

of operations as suggested in paragraphs 292.64(e) and (f). The

reviewer alleged that a refusal to approve a plan of operations would

preclude a claimant from working his claim and constitute a taking of

the claimant's property. The reviewer argued that there was no

comparable provision in the Department's general mining regulations at

part 228, subpart A, of this title and no administrative basis for

departing from those regulations. However, the reviewer also argued

that Sec. 228.5(a)(3) of this title, at least requires the authorized

officer to ``[n]otify the operator of any changes in, or additions to,

the plan of operations to meet the purpose of the regulations in this

part.''

Response: The Department agrees that it does not have the authority

to refuse to approve a reasonable plan of operations which is not

otherwise prohibited by law. However, the Department is not obligated

to allow unreasonable mining operations to be conducted on National

Forest System lands. Thus, even with respect to mining operations which

were being conducted before the promulgation of 36 CFR part 228,

subpart A, it was held that the Department could prohibit unreasonable

mining operations pursuant to the Surface Resources Act of 1955, 30

U.S.C. 611-14. United States v. Richardson, 599 F.2d 290, 291, 294-95

(9th Cir. 1979). The reason for the court's conclusion was that this

statute ``supersede(d) and modif[ied] the pre-existing recognition of

broad rights under 30 U.S.C. 26 * * *.'' Id. at 295.

This authority did not change with the promulgation of 36 CFR part

228,

[[Page 15054]]

subpart A. While the reviewer may argue that 36 CFR part 228, subpart

A, does not allow the Forest Service to refuse to approve a plan of

operations, that argument is inconsistent with 36 CFR 228.5(a)(3), a

provision cited by the reviewer, which is only relevant when the Forest

Service has refused to approve a proposed plan of operations. Indeed,

in cases involving mining operations subject to 36 CFR part 228,

subpart A, courts have found that Forest Service may refuse to approve

an unreasonable plan of operations or a plan otherwise prohibited by a

law such as the Endangered Species Act. ``(T)he Forest Service clearly

has the power to reject an unreasonable plan (of operations).'' Baker

v. United States Department of Agriculture, 928 F. Supp. 1513, 1518 (D.

Idaho 1996). ``Of course, the Forest Service would have the authority

to deny an unreasonable plan of operations or a plan otherwise

prohibited by law. E.q. 16 U.S.C. 1538 (endangered species located at

the mine site.).'' Havasupai Tribe v. United States, 752 F. Supp. 1471,

1492 (D. Ariz. 1990), aff'd sub nom. Havasupai Tribe v. Robertson, 943

F.2d 32 (9th Cir. 1991).

The second proposed rule did not embody a meaningful departure from

36 CFR 228.5(a). Proposed Sec. 292.64(e) and (f) each specifically

provided that disapproval of a plan of operations is an option

available to the authorized officer. Similarly, when 36 CFR 228.5(a)(1)

and (a)(3) are read together there is no doubt that disapproval of a

plan of operations is also an option available to the Forest Service

under the Department's general mining regulations. Also, while 36 CFR

228.5(a)(3) requires the authorized officer to ``(n)otify the operator

of any changes in, or additions to, the plan of operations to meet the

purpose of the regulations in this part,'' proposed Sec. 292.64(f)

requires the authorized officer to ``explain why the proposed plan of

operations cannot be approved.'' The variation between 36 CFR 228.5 and

292.64(e) and (f) of this rule appears to be a distinction without a

difference. At most, the difference is that under these final

regulations, the Department gives the operator the discretion to

propose an alternative plan of operations which, while addressing the

authorized officer's concerns, also best meets the operator's

objectives instead of prescribing the approach that the operator must

adopt.

To avoid any confusion, it should be understood that the Forest

Service will, where necessary, make every effort to resolve differences

and to negotiate plans of operations that are acceptable to the

operator and to the Forest Service before exercising the authority to

refuse to approve a plan of operations. However, as a last resort, the

Forest Service may in certain circumstances, be left no alternative

except to refuse a plan of operations. Whether refusing to approve a

plan of operations would constitute a taking cannot be ascertained at

this juncture. However, to the extent that one of the factors

considered in any regulatory takings claim is the reasonable,

investment backed expectations of the property owner, it may be

difficult for an operator to demonstrate that the agency's refusal to

approve an unreasonable plan of operations requires payment of just

compensation under the Fifth Amendment. For these reasons, no changes

were made to the final rule in response to this comment.

Comment: The proposed time period for the mineral operations fails

to give recognition to the operator's rights under the United States

mining laws and provides another opportunity to delay mining. One

reviewer argued that Sec. 292.64(g) of the second proposed rule, which

would establish a time period for the mineral operations authorized by

an approved plan of operations equal to the minimum amount of time

reasonably necessary for a prudent operator to complete the mineral

development activities covered by the plan, would limit the length of

time that the operator may engage in mining operations on a mining

claim and consequently nullify the operator's rights under the United

States mining laws, which do not include such a restriction. The

reviewer contended that recognition of valid existing rights means that

the Government must give respect and effect to the entirety of an

operator's rights under the mining laws. The reviewer also contended

that proposed Sec. 292.64(g) provides another opportunity for the

Forest Service to delay mining while the operator challenges the Forest

Service's determination of the amount of time that would be reasonably

necessary for a prudent operator to complete the mineral activities.

Finally, the reviewer asserted that there is no reason why the final

rule should not emulate the Forest Service's general mining regulations

by merely requiring that the plan of operations describe the duration

of the expected operations.

Two other reviewers also objected to the proposal to set the

operating timeframe for the minimum amount of time necessary, arguing

that unforeseen events, such as changes in market conditions, severe

weather, strikes, acts of God, or force-majeure can delay start-up and

completion timeframes. Both reviewers also noted that additional

mineral reserves may be identified after production begins so that

additional time is required to mine the deposit. One reviewer

recommended that the timeframe be left open ended or at the very least

set for 300 percent of the minimum amount of time anticipated. That

reviewer also stated that a guaranteed right to extend the operating

timeframe must be provided. Finally, that reviewer contended that

Sec. 292.64(g) could cause a takings by making financing unavailable

and stated that a takings impact analysis had not been prepared for

this provision. The other reviewer recommended that the timeframe be

left open ended or set by the miner.

Response: Several reviewers appear to have assumed that it was not

possible to obtain an extension of the time period provided in an

approved plan of operations to conduct authorized operations. This

interpretation was not the Department's intent. Accordingly, a new

Sec. 292.64(h)(4), is included in the final rule. This new paragraph

makes it clear that a plan of operations may be modified to extend its

term or scope when the criteria set forth in Sec. 292.64(i) for

submission of a supplemental plan of operations or a modification of

the plan of operations pursuant to 36 CFR 228.5, are not triggered. The

final rule consequently cannot be construed as preventing an operator

from fully mining a valuable locatable mineral deposit in the SRNRA on

a mining claim which continues to constitute a valid existing right.

The other comments concern the standard included in proposed

Sec. 292.64(g) for establishing the term of approval for a plan of

operations. The United States mining laws do not address the question

of the duration of mining operations. However, judicial and

administrative interpretations of the mining laws have long made it

clear that ``(u)nder the mining laws Congress has made public lands

available to people for the purpose of mining valuable mineral deposits

and not for other purposes.'' United States v. Coleman, 390 U.S. 599,

602 (1968). Indeed, the ``all-pervading purpose of the mining laws is

to further the speedy and orderly development of the mineral resources

of our country.'' United States v. Nogueira, 403 F.2d 816, 823 (9th

Cir. 1968)(citation omitted). Mining claims which do not ``conform to

the law under which they are initiated * * * work an unlawful private

appropriation in derogation of the rights of the public.'' Cameron v.

United States, 252 U.S. 450, 460 (1920). Thus it is beyond dispute

[[Page 15055]]

that the Government has a definite interest in seeing that operations

on mining claims are diligently pursued to a conclusion, that the lands

are reclaimed, and that the reclaimed lands are restored to other

public uses, particularly where Congress has given the lands a special

designation and management emphasis such as in the case of the SRNRA.

These interests are all fostered by requiring the completion of mining

operations within the time provided for in proposed Sec. 292.64(g) of

this part. Therefore, this provision does not conflict with the United

States mining laws. For the same reasons, it would be inappropriate to

adopt a final rule which provides that the term of approval of a plan

of operations is open-ended, is 300 percent of the minimum amount of

time reasonably necessary for a prudent operator to complete the

authorized operations, or is unilaterally established by the operator.

Limiting the period of approval of a plan of operations, as

provided in the second proposed rule, does not conflict with a

determination that an operator has valid existing rights because that

determination is time dependent and not conclusive of present

conditions and rights. It is beyond dispute that a mining claim, which

constituted a valid existing right at one time, may lose that status. A

claim can become invalid due to a change in markets which results in a

loss of the discovery or due to failure to make certain filings or

payments. Even if a discovery can be shown to exist on a mining claim,

the claim can be invalidated upon a showing that it was not located or

held in good faith for mining purposes. In re Pacific Coast Molybdenum

Co., 75 IBLA 16, 35 (1983). Moreover, where valid existing rights

continue to be maintained and an operator requires additional time to

complete operations, such time can be provided pursuant to either

Sec. 292.64(h)(4) or Sec. 292.64(i) of the final rule. These final

rules appropriately consider and recognize valid existing rights.

Therefore, no change was made to the rule in response to these

comments.

The Department agrees that severe weather, strikes, acts of God,

and force-majeure situations can delay start-up and completion of

mineral operations. However, delays occur regardless of what criteria

the Government selects to determine the time period for approval of a

plan of operations. Rather than adjusting the final rule to provide

additional time for the conduct of operations, which in many cases

might be unnecessary, the Department believes that the course of action

consistent with the long-standing interpretations of the United States

mining laws is to approve operations for the minimum amount of time

reasonably necessary for a prudent operator to complete the operations

and to provide for an extension if, and when, there is a delay in the

start-up or completion of the approved operations. However, the

Department cautions that changes in market conditions, in and of

itself, would not necessarily warrant an extension in the approval

period since it might actually result in the loss of a discovery and of

the valid existing right. Similarly, the suggestion that an operator is

entitled to an extension of the term of approval for a plan of

operations where operations have not been completed overlooks the fact

that a variety of circumstances can result in the loss of a valid

existing right to conduct operations on a mining claim after the

initial approval of a plan of operations. Therefore, it might be

inconsistent with the United States mining laws to extend the term of

approval of the plan of operations in some circumstances where the

suggested criteria are met. Accordingly, the final rule was not changed

in response to these suggestions.

The Department agrees that more time in addition to that authorized

by a plan of operations may be required to mine additional mineral

reserves identified after mineral production begins pursuant to the

approved plan. However, this fact does not justify the suggestion that

the original term of approval of a plan should be inflated to cover

such a contingency. It is well established that mining activities are

subject to regulation to protect the environment. Congress also has

specifically declared that the policy of the Federal Government is to

encourage private enterprise in ``the reclamation of mined land, so as

to lessen any adverse impact of mineral extraction and processing upon

the physical environment * * *.'' 30 U.S.C. 21a. The environmental

impacts of mining mineral reserves that are identified after approval

of a plan obviously could not have been adequately considered or

mitigated by the authorized officer in reviewing the proposed plan.

Thus, it would be inconsistent with 30 U.S.C. 21a and probably other

environmental statutes, for the Forest Service to permit the mining of

reserves identified after mineral production begins without review of

those operations pursuant to Sec. 292.64(h)(4) or Sec. 292.64(i) of

this final rule, as applicable. Consequently, the possibility that

additional reserves might be identified after mineral production begins

does not justify the suggestion that the period of approval for a plan

of operations should be longer than the minimum amount of time

reasonably necessary for a prudent operator to complete the approved

mineral development activities. The final rule has not been changed in

response to this comment.

The Department agrees that mining operations might be delayed as a

consequence of an operator's decision to challenge the Forest Service's

determination of the amount of time that would be reasonably necessary

for a prudent operator to complete the approved mineral operations. The

same is true with respect to all requirements included in an approved

plan of operations and, for that matter, in all authorizations issued

by the Government. The only way to eliminate this risk would be to

permit mining claimants to engage in unrestricted and unregulated

mining on National Forest System lands. Congress rejected that option

in 1897 when it enacted the Organic Administration Act which authorized

the Department of Agriculture to promulgate reasonable rules and

regulations to protect the surface of National Forest System lands from

the adverse impacts of locatable mineral operations. 16 U.S.C. 551. In

enacting 30 U.S.C. 21a, Congress restated that the policy of the

Federal Government is to encourage private enterprise in ``the

reclamation of mined land so as to lessen any adverse impact of mineral

extraction and processing upon the physical environment * * *.'' Thus,

the fact that an operator's challenge that the term of approval of a

plan of operations might delay the commencement of the approved

operations does not warrant a change in Sec. 292.64(g). The likelihood

that a challenge to an approved plan of operations will delay the

start-up of such operations is a risk that the operator must evaluate

and assume in deciding whether to bring the challenge. No change to the

rule was made based upon these suggestions.

From a legal standpoint, the Department disagrees with the

reviewer's contention that the inability to secure financing, in and of

itself, may result in a taking and we are unaware of any case which

supports such a proposition. As described in some detail previously,

takings cases are highly fact specific inquiries which generally

require a court to consider the following factors: the character of the

governmental action, the economic impact of that action, and the

reasonable investment-backed expectations of the property owner. The

inability to obtain financing may have some bearing on

[[Page 15056]]

one or more of the aforementioned factors, but it is not dispositive.

From a practical standpoint, however, it seems somewhat counter

intuitive to contend that an operator would be unable to obtain

financing based on the establishment of an approval period that was

calculated to be sufficient for a prudent operator to complete the

mining operations as documented in the plan of operations. However, in

light of the change made to the final rule which expressly allows for

extensions in the approval period, the Department believes that this

reviewer's concern about the potential takings implications of this

provision has been resolved.

For these reasons, Sec. 292.64(g) of this part is reasonable and

within the authority of the agency. This provision is preferable to the

agency's general mining regulations which do not specifically address

the issue of the term of approval of a plan of operations other than to

require that the proposed plan of operations submitted by the operator

must describe the period during which the proposed activity will take

place.

The Department believes that adopting the requirement in

Sec. 292.64(g) of this subpart may result in the following benefits.

Specifying the term of approval of a plan of operations should result

in increasing the promptness with which mining operations are pursued

to a conclusion, and the promptness with which the lands are reclaimed

and restored to other public uses. Regrettably, past experience

suggests that, on occasion, operators behave less diligently once the

mining phase ceases and the reclamation phase begins because

reclamation operations are costly rather than profitable. Where the

term of a plan of operations is fixed rather than open-ended, sanctions

can be imposed for failure to complete the reclamation activities by

the plan's termination date. This fosters the well recognized purposes

of the United States' laws of furthering the speedy and orderly

development of the nation's mineral resources and insuring that federal

lands are not in an unreclaimed state, or reclaimed at public expense,

to the detriment of the right of the American people to use public

lands. These goals are particularly important where, as in the case of

the SRNRA, Congress has withdrawn lands from the operation of the

United States mining laws subject to valid existing rights and

specified special purposes for which the lands are to be administered.

Also knowing when mineral operations must be completed will improve

the agency's ability to evaluate the environmental impacts of those

activities because those impacts are dependent on the rate at which the

activities are conducted as well as the nature of the activities.

Better information regarding the likely impacts of mineral operations

should result in the preparation of better environmental documents

required by procedural statutes such as the National Environmental

Policy Act and better compliance with substantive environmental

statutes such as the Endangered Species Act. Better information about

the likely impacts of mining also will allow the Government to make

more accurate determinations regarding the amount of the bond that an

operator should be required to post.

For these reasons, Sec. 292.64(g) of this part was not revised in

response to the comments. However, a new Sec. 292.64(h)(4), was

included in the final rule to clarify that it is possible to modify an

approved plan of operations to extend its term or scope.

Comment: Section 292.64(i) of the proposed rule contains an

erroneous reference to Sec. 292.64. One reviewer detected that

Sec. 292.64(i) included a reference to Sec. 292.64 rather than

Sec. 292.63.

Response: The Department recognizes the potential for confusion

resulting from including a reference to Sec. 292.64 in Sec. 292.64. To

rectify the matter, this final rule paragraph has been changed to

eliminate any reference to a section of the supplementary regulations.

It should be well understood that if a new or supplemental plan of

operations is necessary, it will be subject to the review and approval

provisions of these supplementary regulations.

Section 292.65, Plan of Operations--Suspension

This section of the second proposed rule authorized the Forest

Service to suspend mineral development activities if the operations are

being conducted in violation of applicable law, regulation, or the

terms and conditions of the operator's approved plan of operations.

Except in cases where the violations present an imminent threat of harm

to public health, safety, or the environment, this provision required

the Forest Service to give the operator 30 days advance notice of the

suspension. The 30-day notice should, in most instances, give the

operator sufficient time to correct the violations prior to the

suspension taking effect. In cases where mineral operations present an

imminent threat of harm to public health, safety, or the environment

(or where such harm is already occurring), regardless of whether the

operator is in violation of applicable laws, regulations, or the terms

and conditions of the plan of operations, the second proposed rule

authorized the Forest Service to take immediate action to suspend the

mineral development activity. In these cases, the rule directed the

Forest Service to notify the operator of the reason for the action as

soon as it is reasonably practicable after the suspension.

Comment: Suspension authority is duplicative of existing authority

and may result in regulatory abuse. One reviewer noted that the Forest

Service already has broad enforcement authority to suspend mining

operations and that this provision in the rule is, therefore,

unnecessary and will lead to regulatory abuses by the Forest Service.

Response: The current United States Department of Agriculture

regulations at 36 CFR part 228, subpart A, do not contain a provision

authorizing the Forest Service to suspend a mineral operation, in whole

or in part, if an operator is not in compliance with applicable

statutes, regulations or terms and conditions of the approved plan of

operations. Where there is an immediate threat to public health,

safety, or the environment, presented by the mining operation, this

provision allows the Forest Service to respond quickly. The potential

for regulatory abuse, if any, is significantly reduced by requiring

written notice to the operator which informs him or her of the basis

for the suspension.

Where there is no threat to public health, safety or the

environment, there realistically is no potential for ``regulatory

abuse'' feared by this reviewer since the Forest Service must inform

the operator in writing of the proposed suspension 30 days before it

takes effect. Generally, it is presumed that 30 days should be

sufficient time for the operator to address the concern which led to

the issuance of the suspension notice. For these reasons, no change has

been made to the second final rule as a result of this comment.

Section 292.69, Concurrent Reclamation.

The second proposed rule stipulated that reclamation of National

Forest System lands and resources should occur concurrently with the

mineral operation ``to the maximum extent practicable.''

Comment: The operator, not the Forest Service, should determine

what is reasonable and practicable reclamation. One reviewer

acknowledged that concurrent reclamation is a reasonable requirement to

protect the SRNRA so long as it is interpreted sensibly. However, the

reviewer asserted that

[[Page 15057]]

what is reasonable and practicable should be left to the judgment of

the operator, not the Forest Service.

Response: The regulations being adopted to govern mineral

operations in the SRNRA provide the operator an opportunity to give

input concerning reclamation measures appropriate for lands disturbed

by the mining activities. Section 292.63(b) of this part requires the

operator to submit a proposed plan of operations. Section 292.63(c)

requires the proposed plan to address environmental protection

requirements, including reclamation. Presumably an operator would not

propose reclamation activities considered to be impracticable. Assuming

that the Forest Service agrees that the proposed plan of operations

provides, to the maximum extent possible, that reclamation shall

proceed concurrently with the mineral operations and satisfies the

other requirements of 36 CFR 228.8, the reclamation would be approved.

It is standard Forest Service practice to work with an operator to

fashion a mutually agreeable solution in cases where the Forest Service

concludes that the proposed reclamation is unreasonable.

However, for a number of reasons, the Department cannot agree that

the operator should be given unilateral permission to determine how

reclamation of National Forest System lands should occur. Most

importantly, the statute, which extended the United States mining laws

to National Forest System lands reserved from the public domain,

charged the Department to ``insure the objects of such reservations,

namely, to regulate their occupancy and use and to preserve the forests

thereon from destruction * * *.'' 16 U.S.C. 551. Adopting the policy

advocated by the reviewer would effectively delegate the Department's

statutory duties to those whom the Department is required to regulate.

The manner in which lands are reclaimed also has an enormous

bearing on their ability to be restored to other productive uses. The

Forest Service has the ultimate responsibility to specify the manner in

which mined lands are reclaimed so that the rights of the public in

those lands are preserved.

Finally, there are great economic incentives for operators to

perform as little reclamation as possible, because reclamation

represents the most controllable cost of mineral operations. Letting

operators determine the type and scope of reclamation would likely

result in lesser protection being afforded the lands and resources

within the SRNRA than is provided outside the SRNRA. This practice

would be contrary to the statutory requirements to protect and preserve

the values of the SRNRA. For these reasons, no change has been made to

Sec. 292.69 as a result of the comment.

Comment: The extreme requirements in the concurrent reclamation

provision are not justified. One reviewer objected to the requirement

in proposed Sec. 292.69 that plans of operations should provide, to the

maximum extent practicable, that reclamation proceed concurrently with

the mineral operation. The reviewer asserted that there is no

administrative justification for departure from the agency's general

mining regulations which provide that reclamation must occur upon the

exhaustion of the mineral deposit or at the earliest practicable time

during operations, or within 1 year of the completion of operations,

unless a longer time is allowed by the authorized officer. The reviewer

also asserted that there is no administrative justification for

departure from the reclamation provision of the first final rule which

called for concurrent reclamation when practicable, not to the maximum

extent practicable. The reviewer asserts that Sec. 292.69 provides

another opportunity for the Forest Service to impose unreasonable and

expensive procedures upon an operator and, thereby, deprive him of his

property rights.

Response: As discussed previously, past experience demonstrates

that operators tend to be less diligent once mining ceases and

reclamation begins because reclamation of operations are costly rather

than profitable. The Department believes that requiring concurrent

reclamation to the maximum extent practicable will result in

reclamation being initiated and completed sooner than it would be under

the standards set forth in 36 CFR 228.8 of the Department's general

mining regulations or the April 3, 1996, final rule. This result is

important for a number of reasons.

The first involves the purposes of the Act. Section 2 of the Act

specifically enumerated the features that led to the designation of the

SRNRA. Some of these features included: (1) It represents one of the

last wholly intact vestiges of an invaluable legacy of wild and scenic

rivers, (2) it exhibits a richness of ecological diversity unusual in a

basin of its size, and (3) it offers exceptional opportunities for a

wide range of recreational activities, including wilderness, water

sports, fishing, hunting, camping, and sightseeing. The purposes of the

Act are to ensure ``* * * the preservation, protection, enhancement,

and interpretation for present and future generations of the Smith

River watershed's outstanding wild and scenic rivers, ecological

diversity, and recreation opportunities while providing for the wise

use and sustained productivity of its natural resources * * *.'' 16

U.S.C. 460bbb-2(a).

The SRNRA was recognized by Congress as a unique area to be

protected to the extent allowable by law. In addition, in Section 8 of

the Act entitled ``Minerals,'' Congress directed the Secretary of

Agriculture to promulgate supplementary regulations to promote and

protect the purposes for the recreation area is designated. 16 U.S.C.

460bbb-6(d). Therefore, this rule is specifically designed to

supplement the current locatable mineral regulations at 36 CFR part

228, subpart A, and thus provide a greater degree of protection for the

federal lands and resources in the SRNRA than may be available for

federal lands and resources administered elsewhere.

One additional protective measure is the concurrent reclamation

requirement in Sec. 292.69. This requirement will ensure that mined

land is restored to another productive use in the shortest possible

time. Reclamation will be required to the fullest extent practicable.

This will fulfill the Department's statutory obligation under the Act

to promote and protect the values for which the SRNRA was designated.

Secondly, requiring concurrent reclamation to the maximum extent

practicable will foster the Federal Government's policy to encourage

private enterprise in ``the reclamation of mined lands, so as to lessen

any adverse impact of mineral extraction and processing upon the

physical environment'' as established by Congress in 30 U.S.C. 21a.

Reclamation either eliminates or dramatically reduces the adverse

impacts of mineral extraction upon the environment. In most, if not all

cases, requiring more prompt reclamation will reduce the amount of

environmental impacts caused by mineral extraction.

Finally, the benefits of requiring concurrent reclamation to the

maximum extent practicable--increasing the promptness with which mined

lands are returned to other productive uses and reducing the overall

quantum of adverse impacts of mineral extraction upon the environment--

are consistent with the Department's charge to ``ensure the objects of

such reservations, namely to regulate their occupancy and use and to

preserve the forests thereon from destruction * * *.'' 16 U.S.C. 551.

Thus, the departure from the reclamation requirements in 36 CFR 228.8

and the April 3, 1996, final rule is reasonable and adequately

justified.

[[Page 15058]]

Mining claimants in the SRNRA have no right to conduct mineral

operations without adhering to reclamation requirements. The law, which

extended the United States mining laws to National Forest System lands

reserved from the public domain, specifically provides that persons

entering national forests for the purposes of prospecting, locating,

and developing the mineral resources thereof, ``must comply with the

rules and regulations covering such national forests.'' 16 U.S.C. 478.

Moreover, another section of that statute charged the Department to

``insure the objects of such reservations, namely, to regulate their

occupancy and use and to preserve the forests thereon from destruction

* * *.'' 16 U.S.C. 551. Also, while the reclamation requirement in

Sec. 292.69 of the second proposed rule is admittedly stricter than the

reclamation requirements in 36 CFR part 228, subpart A, or the April 3,

1996, final rule, it only requires concurrent reclamation to the

``maximum extent practicable,'' which is by definition, achievable. The

concurrent reclamation requirement by its own terms, therefore, does

not amount to a prohibition on a mining claimant's entitlement to

conduct mineral operations on a mining claim in which valid existing

rights have been established. Consequently, the assertion that the

concurrent reclamation requirement in Sec. 292.69 effects a taking of

the claimant's property rights is without merit.

For these reasons, no change has been made in Sec. 292.69 as a

result of the comment.

Section 292.70, Indemnification.

The second proposed rule specified that the owners and/or operators

of mining claims and the owners and/or lessees of outstanding mineral

rights would be liable for the following: (1) Indemnifying the United

States for injury, loss, or damage which the United States incurs as a

result of any mining operation in the SRNRA; (2) payments made by the

United States in satisfaction of claims, demands, or judgments for such

injury, loss, or damage; and (3) costs incurred by the United States,

including attorney's fees and expenses, for any action involving

noncompliance with an approved plan of operations or activities outside

a mutually agreed to operating plan.

Comment: The indemnification provision is vague and of questionable

legal authority. In addition to suggesting that this section was vague

and potentially over inclusive, one reviewer requested the agency to

specify the authority under which it may seek indemnification from

operators to recover costs associated with, among other things, injury,

loss, or damage to National Forest System lands and resources resulting

from mineral operations in the SRNRA. This reviewer concluded that

since this is a new provision for the SRNRA, there must be new

statutory authority or a recent change in the law from which it is

derived. If no such new authority exists, the reviewer argued that this

provision must be deleted.

Response: The authority for the indemnification provision in the

supplementary regulations for mining in the SRNRA is derived from the

Organic Administration Act of 1897, 16 U.S.C. 551, which states in

relevant part that,

The Secretary of Agriculture shall make provisions for the

protection against destruction by fire and depredations upon the

public forests and national forests which may have been set aside or

which may be hereafter set aside * * * and he may make such rules

and regulations and establish such service as will insure the

objects of such reservations, namely, to regulate their occupancy

and use and to preserve the forests thereon from destruction * * *.

The reviewer's presumption that the Forest Service must be able to

point to a recent change in the law to support the inclusion of an

indemnification provision in this rule because it is ``new and unique''

in the SRNRA is unfounded. The authority dates back to 1897 with the

enactment of the Organic Administration Act. Similar indemnification

provisions are incorporated into several other regulations which

prescribe the terms for various uses of National Forest System lands.

For example, the regulations governing issuance of special use

authorizations for uses such as rights-of-way, ski areas, and

communications facilities contain an indemnification provision (36 CFR

251.56(d)). The regulations governing the leasing and development of

oil and gas resources on National Forest System lands also includes an

indemnification provision (36 CFR 228.110).

The Department does not find the indemnification provision

unconstitutionally vague or overly inclusive. In Village of Hoffman

Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982),

the Supreme Court enumerated a number of factors which affect the

degree of vagueness which the Constitution tolerates. For example, a

less strict vagueness test will apply if a regulation is economic in

nature, does not contain criminal sanctions, and does not implicate

constitutionally protected rights. In United States v. Doremus, 888

F.2d 630 (9th Cir. 1989), the United States Court of Appeals for the

Ninth Circuit rejected a vagueness challenge to a Forest Service

regulation prohibiting certain types of conduct related to mining

activities on National Forest System lands.

This second final rule meets all the factors required by the

Supreme Court ruling. Consequently, there have been no changes made to

the text of the final rule based on this comment.

Comment: The provision authorizing collection of attorneys' fees

and expenses is unlawful. One reviewer asserted that the Department

lacks the statutory authority to include attorneys' fees and expenses

in Sec. 292.70(c) as items for which the Government can be indemnified,

in the event an operator is found to be conducting mineral development

activities in the SRNRA where a plan of operations or operating plan

has not been approved or where the activities are not in compliance

with an approved plan of operations or an approved operating plan.

Response: Although the Department does not agree that the authority

to recover attorneys' fees and expenses does not exist, the final rule

has been modified to eliminate these items from the rule. However, to

the extent independent authority exists to recover attorneys' fees and

expenses under statutes including, but not limited to, the

Comprehensive Environmental Response, Compensation, and Liability Act,

42 U.S.C. 9601 et seq. or the Federal Water Pollution Control Act, 33

U.S.C. 1251 et seq., the Department reserves the right to seek such a

recovery in the event unauthorized mineral operations in the SRNRA

result in violations of one or more of these authorities.

Regulatory Impact

This second final rule has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this regulation is not a significant rule. It will not

have an annual effect of $100 million or more on the economy and will

not adversely affect productivity, competition, jobs, the environment,

public health and safety, or State and local governments.

This second final rule will not interfere with an action taken or

planned by another agency and it will not raise new legal or policy

issues. Finally, this action will not alter the budgetary impact of

entitlements, grants, user fees, or loan programs or the rights and

obligations of recipients of such programs. In short, little or no

effect on the National economy will result from this second final rule,

since it affects only mining activities on

[[Page 15059]]

National Forest System lands in the SRNRA. Accordingly, this final rule

is not subject to OMB review under Executive Order 12866.

Moreover, this final rule has been considered in light of the

Regulatory Flexibility Act (RFA)(5 U.S.C. 601 et seq.), and it has been

determined that this action will not have a significant economic impact

on a substantial number of small entities as defined by the RFA because

of its limited scope and application. Also, this second final rule does

not adversely affect competition, employment, investment, productivity,

innovation, or the ability of United States based enterprises to

compete in local or foreign markets.

Environmental Impact

An environmental assessment and a Finding of No Significant Impact

titled ``Regulation of Mineral Operations on National Forest System

Lands within the Smith River National Recreation Area'' have been

prepared and both documents are available upon request by calling the

contact listed earlier in this rulemaking under FOR FURTHER INFORMATION

CONTACT.

Controlling Paperwork Burdens on the Public

The second proposed rule modified a previously approved information

collection to include the requirement that a plan of operations include

additional information identifying hazardous or toxic materials used in

the operation, the mineral wastes that might be generated, and how

public health and safety are to be maintained.

This information collection modification was discussed in the

preamble of the second proposed rule and comment was requested

specifically on the information collection. As discussed in the comment

and response section, the one comment received on the collection stated

that the time for collecting the additional information was not

sufficient. The agency has increased the estimate of burden hours from

2 hours to 20 hours in response to this comment.

The final information collection package for this rulemaking has

been reviewed by the Office of Management and Budget according to the

provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et

seq.) and implementing regulations at 5 CFR part 1320. The information

requirements in this rule have been assigned control number 0596-0138

for use through September 30, 1998.

No Takings Implications

In compliance with Executive Order 12630 and the Attorney General's

Guidelines for the Evaluation of Risk and Avoidance of Unanticipated

Takings, the takings implications of the second final rule have been

reviewed and considered. It has been determined that there is no risk

of a taking.

Civil Justice Reform Act

This final rule has been reviewed under Executive Order 12778,

Civil Justice Reform. Upon adoption of this rule: (1) All State and

local laws and regulations that are in conflict with this final rule or

which would impede its full implementation would be preempted; (2) no

retroactive effect would be given to this final rule and; (3) it would

not require administrative proceedings before parties would file suit

in court challenging its provisions.

Unfunded Mandates Reform

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2

U.S.C. 1531-1538), which the President signed into law on March 22,

1995, the Department has assessed the effects of this rule on state,

local, and tribal governments and the private sector. This rule does

not compel the expenditure of $100 million or more by any State, local,

or tribal governments or anyone in the private sector. Therefore, a

statement under section 202 of the Act is not required.

List of Subjects in 36 CFR Part 292

Administrative practice and procedure, Environmental protection,

Mineral resources, National forests, and National recreation areas.

Therefore, for the reasons set forth in the preamble, part 292 of

Chapter II of Title 36 of the Code of Federal Regulations is amended by

adding a new subpart G to read as follows:

PART 292--NATIONAL RECREATION AREAS

Subpart G--Smith River National Recreation Area

Sec.

292.60 Purpose and scope.

292.61 Definitions.

292.62 Valid existing rights.

Locatable Minerals

292.63 Plan of operations--supplementary requirements.

292.64 Plan of operations--approval.

292.65 Plan of operations--suspension.

Outstanding Mineral Rights

292.66 Operating plan requirements--outstanding mineral rights.

292.67 Operating plan approval--outstanding mineral rights.

Mineral Materials

292.68 Mineral material operations.

Other Provisions

292.69 Concurrent reclamation.

292.70 Indemnification.Subpart G--Smith River National Recreation

Area

Subpart G--Smith River National Recreation Area

Authority: 16 U.S.C. 460bbb et seq.

Sec. 292.60 Purpose and scope.

(a) Purpose. The regulations of this subpart set forth the rules

and procedures by which the Forest Service regulates mineral operations

on National Forest System lands within the Smith River National

Recreation Area as established by Congress in the Smith River National

Recreation Area Act of 1990 (16 U.S.C. 460bbb et seq.).

(b) Scope. The rules of this subpart apply only to mineral

operations on National Forest System lands within the Smith River

National Recreation Area.

(c) Applicability of other rules. The rules of this subpart

supplement existing Forest Service regulations concerning the review,

approval, and administration of mineral operations on National Forest

System lands including, but not limited to, those set forth at parts

228, 251, and 261 of this chapter.

(d) Conflicts. In the event of conflict or inconsistency between

the rules of this subpart and other parts of this chapter, the rules of

this subpart take precedence, to the extent allowable by law.

Sec. 292.61 Definitions.

The special terms used in this subpart have the following meaning:

Act means the Smith River National Recreation Area Act of 1990 (16

U.S.C. 460bbb et seq.).

Authorized officer means the Forest Service officer to whom

authority has been delegated to take actions pursuant to the provisions

of this subpart.

Hazardous material means any hazardous substance, pollutant,

contaminant, hazardous waste, and oil or other petroleum products, as

those terms are defined under any Federal, State, or local law or

regulation.

Outstanding mineral rights means the rights owned by a party other

than the surface owner at the time the surface was conveyed to the

United States.

SRNRA is the abbreviation for the Smith River National Recreation

Area, located within the Six Rivers National Forest, California.

Sec. 292.62 Valid existing rights.

(a) Definition. For the purposes of this subpart, valid existing

rights are defined as follows:

[[Page 15060]]

(1) For certain ``Wild'' River segments. The rights associated with

all mining claims on National Forest System lands within the SRNRA in

``wild'' segments of the Wild and Scenic Smith River, Middle Fork Smith

River, North Fork Smith River, Siskiyou Fork Smith River, South Fork

Smith River, and their designated tributaries, except Peridotite Creek,

Harrington Creek, and the lower 2.5 miles of Myrtle Creek, which:

(i) Were properly located prior to January 19, 1981;

(ii) Were properly maintained thereafter under the applicable law;

(iii) Were supported by a discovery of a valuable mineral deposit

within the meaning of the United States mining laws prior to January

19, 1981, which discovery has been continuously maintained since that

date; and

(iv) Continue to be valid.

(2) For Siskiyou Wilderness. The rights associated with all mining

claims on National Forest System lands within the SRNRA in the Siskiyou

Wilderness except, those within the Gasquet-Orleans Corridor addition

or those rights covered by paragraph (a)(1) of this section which:

(i) Were properly located prior to September 26, 1984;

(ii) Were properly maintained thereafter under the applicable law;

(iii) Were supported by a discovery of a valuable mineral deposit

within the meaning of the United States mining laws prior to September

26, 1984, which discovery has been continuously maintained since that

date; and

(iv) Continue to be valid.

(3) For all other lands. The rights associated with all mining

claims on National Forest System lands in that portion of the SRNRA not

covered by paragraph (a)(1) or (a)(2) of this section which:

(i) Were properly located prior to November 16, 1990;

(ii) Were properly maintained thereafter under the applicable law;

(iii) Were supported by a discovery of a valuable mineral deposit

within the meaning of the United States mining laws prior to November

16, 1990, which discovery has been continuously maintained since that

date; and

(iv) Continue to be valid.

(b) Operations to confirm discovery. The authorized officer shall

authorize those mineral operations that may be necessary for the

purpose of gathering information to confirm or otherwise demonstrate

the discovery of a valuable mineral deposit consistent with the

definition in paragraph (a) of this section or to obtain evidence for a

contest hearing regarding the claim's validity, upon receipt of a

proposed plan of operations as defined in Sec. 292.63 of this subpart

to conduct such operations and of sufficient information from the

operator to show an exposure of valuable minerals on a claim that

predates the withdrawal of the federal land from the operation of the

United States mining laws. The authorized officer shall authorize only

those operations that may be necessary to confirm or demonstrate the

discovery of a valuable mineral deposit prior to the date of withdrawal

of the federal land on which the claim is situated. Pursuant to this

paragraph, the authorized officer shall not authorize any operations

which would constitute prospecting, exploration, or otherwise

uncovering or discovering a valuable mineral deposit.

Locatable Minerals

Sec. 292.63 Plan of operations--supplementary requirements.

(a) Applicability. In addition to the activities for which a plan

of operations is required under Sec. 228.4 of this chapter, a plan of

operations is required when a proposed operation within the SRNRA

involves mechanical or motorized equipment, including a suction dredge

and/or sluice.

(b) Information to support valid existing rights. A proposed plan

of operations within the SRNRA must include at least the following

information on the existence of valid existing rights:

(1) The mining claim recordation serial number assigned by the

Bureau of Land Management;

(2) A copy of the original location notice and conveyance deeds, if

ownership has changed since the date of location;

(3) A copy of affidavits of assessment work or notices of intention

to hold the mining claim since the date of recordation with the Bureau

of Land Management;

(4) Verification by the Bureau of Land Management that the holding

or maintenance fees have been paid or have been exempted;

(5) Sketches or maps showing the location of past and present

mineral workings on the claims and information sufficient to locate and

define the mining claim corners and boundaries on the ground;

(6) An identification of the valuable mineral that has been

discovered;

(7) An identification of the site within the claims where the

deposit has been discovered and exposed;

(8) Information on the quantity and quality of the deposit

including copies of assays or test reports, the width, locations of

veins, the size and extent of any deposit; and

(9) Existing evidence of past and present sales of the valuable

mineral.

(c) Minimum information on proposed operations. In addition to the

requirements of paragraph (b) of this section, a plan of operations

must include the information required at Secs. 228.4 (c)(1) through

(c)(3) of this chapter which includes information about the proponent

and a detailed description of the proposed operation. In addition, if

the operator and claim owner are different, the operator must submit a

copy of the authorization or agreement under which the proposed

operations are to be conducted. A plan of operations must also address

the environmental requirements of Sec. 228.8 of this chapter which

includes reclamation. In addition, a plan of operations also must

include the following:

(1) An identification of the hazardous materials and any other

toxic materials, petroleum products, insecticides, pesticides, and

herbicides that will be used during the mineral operation, and the

proposed means for disposing of such substances;

(2) An identification of the character and composition of the

mineral wastes that will be used or generated and a proposed method or

strategy for their placement, control, isolation, or removal; and

(3) An identification of how public health and safety are to be

maintained.

Sec. 292.64 Plan of operations--approval.

(a) Timeframe for review. Except as provided in paragraph (b) of

Sec. 292.62 of this subpart, upon receipt of a plan of operations, the

authorized officer shall review the information related to valid

existing rights and notify the operator in writing within 60 days of

one of the following situations:

(1) That sufficient information on valid existing rights has been

provided and the anticipated date by which the valid existing rights

determination will be completed, which shall not be more than 2 years

after the date of notification; unless the authorized officer, upon

finding of good cause with written notice and explanation to the

operator, extends the time period for completion of the valid existing

rights determination.

(2) That the operator has failed to provide sufficient information

to review a claim of valid existing rights and, therefore, the

authorized officer has no obligation to evaluate whether the operator

has valid existing rights or to process the operator's proposed plan of

operations.

(b)(1) If the authorized officer concludes that there is not

sufficient

[[Page 15061]]

evidence of valid existing rights, the officer shall so notify the

operator in writing of the reasons for the determination, inform the

operator that the proposed mineral operation cannot be conducted,

advise the operator that the Forest Service will promptly notify the

Bureau of Land Management of the determination and request the

initiation of a mineral contest action against the pertinent mining

claim, and advise the operator that further consideration of the

proposed plan of operations is suspended pending final action by the

Department of the Interior on the operator's claim of valid existing

rights and any final judicial review thereof.

(2) If the authorized officer concludes that there is not

sufficient evidence of valid existing rights, the authorized officer

also shall notify promptly the Bureau of Land Management of the

determination and request the initiation of a mineral contest action

against the pertinent mining claims.

(c) An authorized officer's decision pursuant to paragraph (b) of

this section that there is not sufficient evidence of valid existing

rights is not subject to further agency or Department of Agriculture

review or administrative appeal.

(d) The authorized officer shall notify the operator in writing

that the review of the remainder of the proposed plan will proceed if:

(1) The authorized officer concludes that there is sufficient

evidence of valid existing rights;

(2) Final agency action by the Department of the Interior

determines that the applicable mining claim constitutes a valid

existing right; or

(3) Final judicial review of final agency action by the Department

of the Interior finds that the applicable mining claim constitutes a

valid existing right.

(e) Upon completion of the review of the plan of operations, the

authorized officer shall ensure that the minimum information required

by Sec. 292.63(c) of this subpart has been addressed and, pursuant to

Sec. 228.5(a) of this chapter, notify the operator in writing whether

or not the plan of operations is approved.

(f) If the plan of operations is not approved, the authorized

officer shall explain in writing why the plan of operations cannot be

approved.

(g) If the plan of operations is approved, the authorized officer

shall establish a time period for the proposed operations which shall

be for the minimum amount of time reasonably necessary for a prudent

operator to complete the mineral development activities covered by the

approved plan of operations.

(h) An approved plan of operations is subject to review and

modification as follows:

(1) To bring the plan into conformance with changes in applicable

federal law or regulation; or

(2) To respond to new information not available at the time the

authorized officer approved the plan, for example, new listings of

threatened or endangered species; or

(3) To correct errors or omissions made at the time the plan was

approved, for example, to ensure compliance with applicable federal law

or regulation; or

(4) To permit operations requested by the operator that differ in

type, scope, or duration from those in an approved plan of operations

but that are not subject to paragraph (i) of this section.

(i) If an operator desires to conduct operations that differ in

type, scope, or duration from those in an approved plan of operations,

and if those changes will result in resource impacts not anticipated

when the original plan was approved, the operator must submit a

supplemental plan or a modification of the plan for review and

approval.

Sec. 292.65 Plan of operations--suspension.

(a) The authorized officer may suspend mineral operations due to an

operator's noncompliance with applicable statutes, regulations, or

terms and conditions of the approved plan of operations.

(1) In those cases that present a threat of imminent harm to public

health, safety, or the environment, or where such harm is already

occurring, the authorized officer may take immediate action to stop the

threat or damage without prior notice. In such case, written notice and

explanation of the action taken shall be given the operator as soon as

reasonably practicable following the suspension.

(2) In those cases that do not present a threat of imminent harm to

public health, safety, or the environment, the authorized officer must

first notify the operator in writing of the basis for the suspension

and provide the operator with reasonably sufficient time to respond to

the notice of the authorized officer or to bring the mineral operations

into conformance with applicable laws, regulations, or the terms and

conditions of the approved plan of operations.

(b) Except as otherwise provided in this section, the authorized

officer shall notify the operator not less than 30 days prior to the

date of the proposed suspension.

Outstanding Mineral Rights

Sec. 292.66 Operating plan requirements--outstanding mineral rights.

(a) Proposals for mineral operations involving outstanding mineral

rights within the SRNRA must be documented in an operating plan and

submitted in writing to the authorized officer.

(b) An operating plan for operations involving outstanding mineral

rights within the SRNRA must include the following:

(1) The name and legal mailing address of the operator, owner, and

any lessees, assigns, and designees;

(2) A copy of the deed or other legal instrument that conveyed the

outstanding mineral rights;

(3) Sketches or maps showing the location of the outstanding

mineral rights, the proposed area of operations, including, but not

limited to, existing and/or proposed roads or access routes identified

for use, any new proposed road construction, and the approximate

location and size of the areas to be disturbed, including existing or

proposed structures, facilities, and other improvements to be used;

(4) A description of the type of operations which includes, at a

minimum, a list of the type, size, location, and number of structures,

facilities, and other improvements to be used;

(5) An identification of the hazardous materials and any other

toxic materials, petroleum products, insecticides, pesticides, and

herbicides that will be used during the mineral operation and the

proposed means for disposing of such substances;

(6) An identification of the character and composition of the

mineral wastes that will be used or generated and a proposed method or

strategy for their placement, control, isolation, remediation, or

removal; and

(7) A reclamation plan to reduce or control on-site and off-site

damage to natural resources resulting from mineral operations. The plan

must:

(i) Provide reclamation to the extent practicable;

(ii) Show how public health and safety are maintained;

(iii) Identify and describe reclamation measures to include, but

not limited to, the following:

(A) Reduction and/or control of erosion, landslides, and water

runoff;

(B) Rehabilitation of wildlife and fisheries habitat to be

disturbed by the proposed mineral operation; and

(C) Protection of water quality.

(iv) Demonstrate how the area of surface disturbance will be

reclaimed to a condition or use that is consistent

[[Page 15062]]

with the Six Rivers National Forest Land and Resource Management Plan.

Sec. 292.67 Operating plan approval--outstanding mineral rights.

(a) Upon receipt of an operating plan, the authorized officer must

review the information related to the ownership of the outstanding

mineral rights and notify the operator that:

(1) Sufficient information on ownership of the outstanding mineral

rights has been provided; or

(2) Sufficient information on ownership of outstanding mineral

rights has not been provided, including an explanation of the specific

information that still needs to be provided, and that no further action

on the plan of operations will be taken until the authorized officer's

receipt of the specified information.

(b) If the review shows outstanding mineral rights have not been

verified, the authorized officer must notify the operator in writing

that outstanding mineral rights have not been verified, explain the

reasons for such a finding, and that the proposed mineral operation

cannot be conducted.

(c) If the review shows that outstanding mineral rights have been

verified, the authorized officer must notify the operator in writing

that outstanding mineral rights have been verified and that review of

the proposed operating plan will proceed.

(d) The authorized officer shall review the operating plan to

determine if all of the following criteria are met:

(1) The operating plan is consistent with the rights granted by the

deed;

(2) The operating plan is consistent with the Six Rivers National

Forest Land and Resource Management Plan; and

(3) The operating plan uses only so much of the surface as is

necessary for the proposed mineral operations.

(e) Upon completion of the review of the operating plan, the

authorized officer shall notify the operator in writing of one of the

following:

(1) The operating plan meets all of the criteria of paragraphs

(d)(1) through (d)(3) of this section and, therefore, is approved;

(2) The operating plan does not meet one or more of the criteria in

paragraphs (d)(1) through (d)(3) of this section. Where feasible, the

authorized officer may indicate changes to the operating plan that

would satisfy the criteria in paragraphs (d)(1) through (d)(3) of this

section and, thus, if accepted by the operator, would result in

approval of the operating plan.

(f) To conduct mineral operations beyond those described in an

approved operating plan, the owner or lessee must submit, in writing,

an amended operating plan to the authorized officer at the earliest

practicable date. New operations covered by the proposed amendment may

not begin until the authorized officer has reviewed and responded in

writing to the proposed amendment. The authorized officer shall review

a proposed amendment of an approved operating plan to determine that

the criteria in paragraphs (d)(1) through (d)(3) of this section are

met.

Mineral Materials

Sec. 292.68 Mineral material operations.

Subject to the provisions of part 228, subpart C, and part 293 of

this chapter, the authorized officer may approve contracts and permits

for the sale or other disposal of mineral materials, including but not

limited to, common varieties of gravel, sand, or stone. However, such

contracts and permits may be approved only if the material is not

within a designated wilderness area and is to be used for the

construction and maintenance of roads and other facilities within the

SRNRA or the four excluded areas identified by the Act.

Other Provisions

Sec. 292.69 Concurrent reclamation.

Plans of operations involving locatable minerals, operating plans

involving outstanding mineral rights, and contracts or permits for

mineral materials should all provide, to the maximum extent

practicable, that reclamation proceed concurrently with the mineral

operation.

Sec. 292.70 Indemnification.

The owner and/or operator of mining claims and the owner and/or

lessee of outstanding mineral rights are jointly and severally liable

in accordance with Federal and State laws for indemnifying the United

States for the following:

(a) Costs, damages, claims, liabilities, judgments, injury and

loss, including those incurred from fire suppression efforts, and

environmental response actions and cleanup and abatement costs incurred

by the United States and arising from past, present, and future acts or

omissions of the owner, operator, or lessee in connection with the use

and occupancy of the unpatented mining claim and/or mineral operation.

This includes acts or omissions covered by Federal, State, and local

pollution control and environmental statutes and regulations.

(b) Payments made by the United States in satisfaction of claims,

demands, or judgments for an injury, loss, damage, or costs, including

for fire suppression and environmental response action and cleanup and

abatement costs, which result from past, present, and future acts or

omissions of the owner, operator, or lessee in connection with the use

and occupancy of the unpatented mining claim and/or mineral operations.

(c) Costs incurred by the United States for any action resulting

from noncompliance with an approved plan of operations or activities

outside an approved operating plan.

Dated: March 12, 1998.

Brian Eliot Burke,

Deputy Under Secretary, NRE.

[FR Doc. 98-7924 Filed 3-26-98; 8:45 am]

BILLING CODE 3410-11-P