JurisdictionUnited States
Review and Analysis of the New BLM Surface Management (3809) Regulations


Charles A. Jeannes
Glamis Gold Ltd.
Reno, Nevada

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Glamis Imperial Corporation has been attempting to permit its proposed open-pit heap leach gold mine in Imperial County for over five years. The project area is comprised of unpatented lode mining claims and millsites located on federal lands that were, until recently, open to location under the mining laws of the United States. Despite overwhelming local support, this project, that will bring millions to a regionally depressed economy, has faced a series of federal roadblocks unparalleled in today's industry. Most recently, the Final Environmental Impact Statement was released by the Bureau of Land Management for the project with "no action" as the preferred alternative. This conclusion follows a BLM finding that the project would have significant irreparable, adverse impacts on cultural, historical and visual resources in the vicinity of the project. The Record of Decision formally denying the Imperial plan of operations is expected prior to January 20, 2001.

The BLM decision to deny the Imperial Project is based on the conclusions of a Solicitor's Opinion issued in December 1999 that created a new "undue impairment" standard applicable within the California Desert Conservation Area. This opinion was prepared in specific reference to BLM's consideration of the Glamis plan of operations. The undue impairment standard allows denial of a project upon a finding that it would unduly impair cultural, historic or other significant resources and that no mitigation measures are reasonably available to avoid those impacts.

Broad discretion similar to the Solicitor's undue impairment standard is now included in the definition of "unnecessary or undue degradation" at 43 C.F.R. § 3809.5(4) and is therefore applicable to mining project approval on all public lands. Any project on BLM lands can be denied as causing unnecessary or undue degradation if the BLM determines that it will result in "substantial irreparable harm to significant scientific, cultural, or environmental resource values...that cannot be effectively mitigated." Is Glamis' experience the future of mine permitting in the United States?

Factual and Historical Background.

1. Description of the Imperial Project.

The Imperial Project is an open pit, heap leach gold mining operation. All mining is conducted above the water table and there is no crushing — the leaching is entirely from run of mine material. The surface disturbance is comprised of two open pits, two waste dumps, one large leach pad, the processing plant and associated shop and administrative buildings. Approximately 1,360 acres of the surface would be disturbed, all of which except the open pits would be reclaimed. In addition to over $14 million invested to date in exploration, development and permitting, approximately $50 million would be

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expended in initial capital. The mine would produce an annual average of 130,000 ounces of gold over a 10-year mine life.

2. Historical review of land-use planning efforts within the California Desert Conservation Area generally and around the Imperial Project area specifically.

(a) FLPMA § 601(f) creating California Desert Conservation Area (43 U.S.C. § 1781).

(b) The California Desert Conservation Area Plan (1980, as amended) was prepared by BLM pursuant to FLPMA as a long-term land-use planning document for the CDCA. Relevant excerpts:

Location of mining claims is non-discretionary. Operations on mining claims are subject to 43 CFR 3809 regulations.... BLM will review plans of operations for potential impacts on sensitive resources identified on lands in this class. Mitigation, subject to technical and economic feasibility, will be required. CDCA Plan at 18 (emphasis added).

If there is an unavoidable conflict with an endangered species habitiat, a plan could be rejected based not on section 302(b) of [FLPMA], but on section 7 of the Endangered Species Act. If, upon compliance with the National Historic Preservation Act, the cultural resources cannot be salvaged or damage to them mitigated, the plan must be approved. Essentially,...these laws may slow the plan approval process; one law may stop a project while the other may only delay it. CDCA Plan at 90 (emphasis added).

(c) California Desert Protection Act, Pub. L. 103-433, 108 Stat. 4471, 4472 (Oct. 31, 1994). Seven-point-seven million acres were removed from multiple use management under FLPMA and designated as national park lands or wilderness areas. Two wilderness areas within two miles of the Imperial Project and containing over 42,000 acres were created, in part, for the protection of Native American cultural values. Relevant excerpt:

Congress does not intend for the designation of wilderness lead to the creation of protective perimeters of buffer zones around any such wilderness area. The fact that non-wilderness activities or uses can be seen or heard from areas within a wilderness area shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area. 108 Stat. 4481 (1994).

3. Chronology of Federal Roadblocks:

(a) Requirement for second Draft Environmental Impact Statement.

(b) Issuance by Solicitor Leshy of September 1997 millsite opinion.

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(c) Segregation by the BLM of Imperial Project area as a proposed "Area of Critical Environmental Concern" (ACEC) and proposed withdrawal of the area from mineral location and development.

(d) BLM requirement of a formal validity examination of Glamis' mining claims in connection with proposed withdrawal, including threatened application of Leshy millsite opinion.

(e) BLM request to Advisory Council on Historic Preservation (ACHP) for an opinion on the impact of the Imperial Project on historic resources.

(f) Issuance by the ACHP of its conclusion that the Imperial Project would irreparably impact historic cultural resources of the Quechan Tribe and its recommendation that the BLM use "any means available" to stop the project.

(g) Issuance by Solicitor Leshy of December 1999 opinion advising BLM what standards to apply in issuing its Record of Decision for the Imperial Project.

(i) A new and more restrictive interpretation of the "unnecessary or undue degradation" standard.

(ii) A new "undue impairment" standard that is different from and more restrictive than the "unnecessary or undue degradation" standard.

(h) Final withdrawal of the Imperial Project Area from mineral location as an ACEC.

(i) Issuance of the Final EIS in September 2000 with "No Action" selected as the Preferred Alternative.

Legal Issues Presented by the Solicitor's Opinion and its Application to the Imperial Project.

1. Illegal re-writing of regulatory scheme in violation of APA.

(a) New definition of "unnecessary or undue degradation"

(b) New interpretation of "undue impairment" provision in FLPMA § 601(f)

(c) Ignoring/re-writing various provisions contained within CDCA Plan

2. Equitable issues involving radical changes to BLM regulations, pronouncements and past practices involving mining plans of operation within the CDCA.

(a) A review of 14 plan of operations approvals at 9 different mines within the CDCA since 1980 reveals that in every case, the BLM applied the "unnecessary or undue degradation" standard — not a more restrictive "undue impairment" standard.

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(b) In both of the draft EIS's for the Imperial Project, BLM's decision-making process was described as being governed by the 3809 regulations.

3. Constitutional Issues:

(a) Separation of powers

(b) Establishment Clause

Nature of the Cultural Resources that Would Be Impacted by the Imperial Project.

1. The first two cultural resource studies commissioned by Glamis for its exploration plans of operation at the project site found that the area had been used by Native Americans, primarily for transportation. The physical resources were unremarkable, including chipping stations, lithic scatter and evidence of a small portion of a large trail system historically used for transport from the west to the Colorado river and beyond (the "Trail of Dreams"). The most notable feature in the area is the "Running Man," a rock formation. The Running Man is located outside the physical project area and will not be disturbed by the mine development. The only available evidence indicates that this feature is approximately fifty years old.

2. The final cultural resources study of the Imperial Project area was prepared by KEA Associates in 1997. In this study, based entirely on the statements of a Quechan tribal member who was also a part of the teams which prepared the two earlier studies but was silent on this issue, a finding is included that this area was used by the Quechan for traditional religious and cultural educational purposes and is considered integral to the transmission of cultural knowledge. At the direction of the BLM, KEA identified what it called "The Indian Pass — Running Man Area of Traditional Cultural Concern" (ATCC). This area was arbitrarily drawn as the Imperial Project area itself rather than being based on actual evidence denoting the boundary of a cultural resource area.

3. The BLM had determined in a formal land use planning document that there was "no evidence" that the "Indian Pass" area near the Imperial Project "is used today by contemporary Native Americans." Indian Pass ACEC Management Plan § III (1987).

4. The ACHP, by letter to Secretary Babbitt dated October 19, 1999, advised the Secretary, inter alia,:

If implemented, the [Imperial] Project would be so damaging to historic resources that the Quechan Tribe's ability to practice their sacred traditions as a living part of the community life and development would be lost. Overall, the Council is convinced that...

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