CHAPTER 3 JOINT AND SEVERAL LIABILITY CONCEPTS IN THE NEW REGULATIONS

• Jurisdiction: United States

Review and Analysis of the New BLM Surface Management (3809) Regulations
(2001)
CHAPTER 3
JOINT AND SEVERAL LIABILITY CONCEPTS IN THE NEW REGULATIONS
Randall E. Hubbard
Davis Graham & Stubbs LLP
Denver, Colorado

[Page 3-1]

I. EXPANSION OF LIABILITY

A. New 43 C.F.R. § 3809.5 defines "Operator" as "any person who manages, directs, or conducts operations at a project area under this subpart, including a parent entity or an affiliate who materially participates in such management, direction, or conduct. An operator on a particular mining claim may also be the mining claimant."

B. The new regulations, at 43 C.F.R. § 3809.116(a)(1) also provide that:

Mining claimants and operators (if other than the mining claimant) are jointly and severally liable for operations under this subpart that accrue while they hold their interests. Joint and several liability, in this context, means that the mining claimants and operators are responsible together and individually for obligations, such as reclamation, resulting from activities or conditions in the areas in which the mining claimants hold mining claims or millsites or the operators have operational responsibilities.

The new regulations provide examples of this concept.

1. Mining claimant A holds mining claims totaling 100 acres. Mining claimant B holds adjoining mining claims totaling 100 acres and millsites totaling 25 acres. Operator C conducts mining operations on a project area that includes both claimant A's mining claims and claimant B's mining claims and millsites. Mining claimant A and operator C are each 100% responsible for obligations arising from activities on mining claimant A's mining claims. Mining claimant B has no responsibility for such obligations. Mining claimant B and operator C are each 100% responsible for obligations arising from activities on mining claimant B's mining claims and millsites. Mining claimant A has no responsibility for such obligations.

2. Mining claimant L holds mining claims totaling 100 acres on which operators M and N conduct activities. Operator M conducts operations on 50 acres. Operator N conducts operations on the other 50 acres. Operators M and N are independent of each other and their operations do not overlap. Mining claimant L and operator M are each 100% responsible for obligations arising from activities on the 50 acres on which operator M conducts activities. Mining claimant L and operator N are each 100% responsible for obligations arising...