CHAPTER 2 THE 3809 KITCHEN SINK: GENERAL PROVISIONS: PURPOSE, OBJECTIVES, DEFINITIONS. CHANGES IN NOTICE AND PLAN LEVEL THRESHOLDS. CONTENT REQUIREMENTS FOR NOTICES AND PLANS. TRANSITION PROVISIONS. FEDERAL|STATE AGREEMENTS

• Jurisdiction: United States

Review and Analysis of the New BLM Surface Management (3809) Regulations
(2001)
CHAPTER 2
THE 3809 KITCHEN SINK: GENERAL PROVISIONS: PURPOSE, OBJECTIVES, DEFINITIONS. CHANGES IN NOTICE AND PLAN LEVEL THRESHOLDS. CONTENT REQUIREMENTS FOR NOTICES AND PLANS. TRANSITION PROVISIONS. FEDERAL/STATE AGREEMENTS
Steven G. Barringer
Stephen G. Barringer, P.L.L.C.
Washington, DC 20002

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January 19, 2001

201 Maryland Avenue N.E.

(202) 543-6050 phone

(202) 543-0616 fax

steve@mgninc.com email

The various miscellaneous provisions of the new surface mining regulations at 43 C.F.R. § 3809 will make some important changes in how mining is conducted on the federal lands. Though all regulatory definitions must be scrutinized, the definitions of this new rule have particular importance. The surface management regulations are based almost entirely on the charge of the Federal Land Policy and Management Act of 1976 ("FLPMA") to avoid "unnecessary or undue degradation" to the surface resources of the public lands.¹ This term is not defined in FLPMA, and there is practically no legislative history to shed light on how Congress intended it to be interpreted. Accordingly, its interpretation in rulemaking by BLM, the implementing agency, takes on added significance.

This paper surveys the definitions and other mostly procedural provisions of the new surface management regulations promulgated by the BLM on November 21, 2000.² While they are mostly procedural and structural in nature, these new rules make major changes in how and whether exploration and mining will be conducted on the public lands.³

I. Purposes and Objectives of the Rule.

The purpose of the rule, to paraphrase the new regulations, is to prevent unnecessary or undue degradation, and to maximize coordination with states in the implementation of their own laws and rules.⁴ These are not significant changes from the

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existing rule, but the words belie the controversy that surrounded the BLM's proposal and promulgation of the rules. As other papers presented today will explore in more detail, the rulemaking has wrought major changes in the administrative interpretation of the statutory term "unnecessary or undue degradation." Partly as a result of those changes, the rule also will affect the existing relationship between the BLM and the western states that have legal jurisdiction over public lands within their borders.⁵

The BLM began the effort to rewrite the 3809 rules in 1997. Interior Secretary Bruce Babbitt initiated the effort with public statements to the effect that he intended with revisions to the 3809 rules to accomplish by regulation at least some of the Mining Law reform that Congress had refused the previous session to enact legislatively.⁶ As recently as this week. Secretary Babbitt repeated his intentions to a Washington Post reporter: "...[N]ow Babbitt says his new rules will achieve everything he had hoped from legislation in the West — except requiring hardrock mining firms to pay royalties."⁷ These public statements of intention — made from the outset — gave the rulemaking process that followed a dramatic and contentious quality that possibly could have been avoided, or at least minimized. No matter how often BLM staffers repeated their honorable intentions, mining industry stakeholders believed that the rulemaking was an assault on their livelihoods. Many of these stakeholders still believe that the purpose and objective of the rulemaking was to drive the mining industry off the public lands.⁸

The truth is likely somewhat less dramatic, and remains to be established However, it is clear that the real purpose of the rule updates is not articulated in the rule language. Subtle changes in the rule's language do portend a major shift in emphasis. The original rules, promulgated at the close of the Carter Administration in 1980. contained separate subsections stating the rules' purpose and objectives:

§ 3809.0-1 Purpose

The purpose of this subpart is to establish procedures to prevent unnecessary or undue degradation of Federal lands which may result from operations authorized by the mining laws

§ 3809.0-2 Objectives.

The objectives of this regulation are to:

(a) Provide for mineral entry, exploration, location, operations, and purchase pursuant to the mining laws in a manner that will not unduly hinder such activities but

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will assure that these activities are conducted in a manner that will prevent unnecessary or undue degradation and provide protection of nonmineral resources of the Federal lands;

(b) Provide for reclamation of disturbed areas; and

(c) Coordinate, to the greatest extent possible, with appropriate State agencies, procedures for prevention of unnecessary or undue degradation with respect to mineral operations.⁹

In the new rule, the BLM combined these sections into one statement of purpose, focusing on the imperative to prevent unnecessary or undue degradation.¹⁰ The new statement of purpose still recognizes that mining operations are "authorized by the mining laws."¹¹ However, completely gone is the affirmative language of the existing rule "provid[ing] for mineral entry, exploration, location, operations, and purchase pursuant to the mining laws...." This shift in emphasis presages, among other things, the aggressive environmental performance and reclamation standards of the rule, and the BLM's assertion of authority under FLPMA to block mining operations if they would cause "irreparable harm" that cannot be mitigated to the level of impacts that are "necessary" or "due."¹² Both of these issues are addressed in more detail in other papers presented today by Charles Jeannes and Jim Butler.

Both the existing and new rule emphasize maximum coordination with states as a major purpose of the rule.¹³ However, in practice, the new 3809 rule is intended by the BLM to make significant changes in existing federal/state relationships. These changes are discussed at Section VII below. The new rules will create a stronger role for the BLM as standard-setter, and will result in much less deference to existing state regulatory provisions than is now the case.

II. Scope of the Rules.

The rule contains a new provision that expands the jurisdictional scope of the 3809 rules.¹⁴ There are several significant differences from the existing rule. First, with the new rule, the BLM asserts regulatory authority over private lands for which the mineral interest was reserved to the United States when the surface passed into private ownership under the Stock Raising Homestead Act.¹⁵ Commentators in the rulemaking questioned the BLM's authority to regulate these private lands, particularly without consent from the surface landowner, but BLM has maintained its intention to assert

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regulatory authority over these lands, both through this rule and an ongoing rulemaking on Stock Raising and Homestead lands.¹⁶ Elsewhere, the rule provides that an operator on Stock Raising and Homestead lands need not file a notice or plan of operations if he has the consent of the surface estate owner.¹⁷

The BLM also asserts its authority to "collect information about private land that is near to, or may be affected by, operations authorized" under the 3809 rules.¹⁸ This statement apparently is a vestige of earlier proposals in which the BLM actually asserted regulatory authority over private lands bordering public lands.¹⁹ The language in the final rule is limited to collecting information for purposes of compliance with the National Environmental Policy Act ("NEPA").²⁰ It really is no more than notice to the regulated community that in its NEPA compliance, the BLM will not confine its inquiry to impacts on public lands, a position that is similar to if not the same as the BLM's current practice.

III. Definitions.

Though some of the definitions in the new rule do not make major changes, others transform the entire meaning and purpose of the 3809 regulatory program. Following is a discussion of the important definitions.²¹

A. Casual Use.

The new definition resembles the one found in the existing rules, but its limitations are developed in greater detail with the use of examples and the provision of some limitations. For instance, equipment typically used by hobbyists and recreational miners (i.e., handheld and portable equipment) typically would be considered casual use, but the use of motor vehicles in areas closed to off-road vehicles is not casual use. Further, the use of "mechanized earth-moving equipment" and "truck-mounted" drilling equipment is not "casual use." Some commentators complained about this clarification, arguing that the use of such equipment has been considered casual use in the past. The BLM retained the language in the final definition, emphasizing that use of these types of equipment should be considered and treated as exploration, subject to notice or plan of operation requirements.²²

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The new rule makes clear that activities in heavily-used areas may not be casual use, even if they would otherwise constitute "casual use" on their own.²³ "Occupancy" is never considered casual use, neither are the use of chemicals or explosives.²⁴ In the case of chemicals, some commentators raised concerns about the use common use of gasoline, oil and other "chemicals" necessary to operate some equipment. The BLM clarified in the final rule preamble that its concern is the use of cyanide, acids and other leachates in mineral extraction, not the incidental use of fuels and chemicals in machinery. Such uses would continue to be regarded as "casual use" by the BLM.²⁵

B. Exploration.

The existing rule did not separately define "exploration," and neither did the proposed rule, but the BLM has included a definition in the final rule to help clarify, among other things, the distinction between exploration and actual mining. The term means sampling, drilling, the development of...