Court Action??

[Gaius]

Apparently there been some kind of court action this last week involving prospecting and the results of this court action are not widely known. The only court activity involving prospecting I can think of has been out in Riverside, CA. Does anyone know if there has been any court action involving prospecting from Riverside, CA, what the results were if any, and is the court location at a place called Rancho?

I found out from another prospecting web site and they were asking the same question.

[elder-miner]

DO YOU MEAN THIS NATION WIDE ONE FROM BACK IN 2012?

_________________________________________________

Forest Service

Washington Office

1400 Independence Avenue, SW

Washington, DC 20250

File Code: 1570

Date: March 29, 2012

Subject: Adverse Ruling in Sequoia ForestKeeper v. Tidwell

To: Regional Foresters, Station Directors, Area Director, IITF Director, Deputy Chiefs and WO Directors

This letter documents instructions from the Forest Service Washington Office for operation of

36 CFR §215 pursuant to the March 19, 2012, judicial ruling in Sequoia ForestKeeper v.

Tidwell. The District Court found that Forest Service regulations exempting project

decisions from notice, comment, and appeal when they are categorically excluded from

analysis under the National Environmental Policy Act (NEPA) are in violation of the

Appeals Reform Act (ARA) and enjoined the Forest Service from following these

regulations. The Forest Service will immediately comply with the District Court’s Orders and

Injunction. Until new instructions are issued by this office, or the Agency issues regulations

implementing Section 428 of the Consolidated Appropriations Act of 2012 and addresses the

Court’s ruling, pursuant to the Court’s Order the following instructions apply:

First, the District Court granted plaintiffs’ request for a nationwide injunction, and enjoined the

Forest Service from implementing 36 CFR §§ 215.4(a) and 215.12(f). These regulations had

exempted all categorical exclusions from notice, comment and appeal.

Therefore, effective March 19, 2012, all units shall refrain from applying these exemptions.

Second, the Forest Service will offer notice, comment and administrative appeal opportunities

for categorically excluded decisions as provided for in the District Court’s Order. The District

Court held that “[t]o comply with the ARA, the Forest Service should have promulgated

regulations that preserved the comment, notice, and appeal for any decisions subject to

administrative appeal prior to the proposed changes in 1992.” (Merits Opinion p. 11). The

opinion notes “Prior to 1992, the Forest Service “provided a post-decision administrative appeals

process, 36 C.F.R. pt. 217, for agency decisions documented in a ‘decision memo,’ ‘decision

notice,’ or ‘record of decision.’” (Merits Opinion p. 2).

Therefore, all units shall provide notice, comment and appeal opportunities for all projects and

activities implementing land and resource management plans that are “documented in a

‘decision memo,’ ‘decision notice,’ or ‘record of decision.’”

While the 1992 regulatory standard for appealability is quite clear that “Only decisions

documented in a Decision Memo, Decision Notice, or a Record of Decision are subject to

appeal,” 36 C.F.R. 217.3 (1992) (emphasis added,) the Forest Service seeks to diminish the

potential for conflict while operating pursuant to the Court’s order.

Regional Foresters, Station Directors, Area Director, IITF Director, Deputy Chiefs and WO

Directors 2

Therefore, line officers are instructed to write decision memos for any proposed action or

activity that seeks to authorize the sale of timber, and offer the opportunity for notice, comment,

and appeal on these proposed actions, as directed above. Further, line officers at their sole

discretion may offer notice, comment and appeal opportunities for individual projects or

activities that do not require a decision memo. Such instances are expected to be infrequent and

would be offered only when the line officer deems appropriate or necessary to promote public

confidence in agency decision making. As stated above, units will provide notice, comment, and

appeal opportunities for all projects and activities that are documented in a decision memo.

Third, questions have already been raised concerning whether the injunction will affect ongoing

activities. The Agency believes that retroactive application of the Court’s Order would impede

the necessary daily functioning of the Agency and could upset the settled expectations of

permittees, contractors, and members of the public or other groups interested in using National

Forest System land by halting projects already underway. In prior litigation involving these

same rules (Earth Island Institute v. Ruthenbeck) before the same District Court, the court

concluded that “a retroactive remedy would seem to plunge the Forest Service headlong into a

crippling morass of confusion. The [injunction], therefore, will apply to Forest Service projects

and decisions post-dating the…docketing of the…Order.”

Therefore, implementation of decisions that were finalized prior to the Court’s March 19, 2012

Order need not be halted or subjected to notice, comment and appeal, and may proceed as

planned.

Fourth, for categorically excluded projects and activities currently under development, units

should not assume that NEPA “scoping” for the purposes of 36 CFR 220.4(e)(1) will necessarily

satisfy the requirements for notice and comment under the Court’s injunction. If legal notice of

the opportunity to comment has been published, and comments have been accepted in the same

or similar manner as that described in 36 CFR 215.6(a) (regarding Environmental Assessments),

units need not repeat notice and comment efforts.

Finally, we recognize that these circumstances represent a significant burden and will in many

instances delay implementation of needed and valuable management activities or create

substantial hardships for users of the National Forest System. This is regrettable, but immediate

compliance with the Court’s Order is imperative. The agency has and will continue to confer

with the Office of the General Counsel and Department of Justice concerning the agency’s legal

options.

Additional information will be provided as it becomes available. Any questions regarding this

direction should be directed to Deb Beighley at 202-205-1277, or Joel Strong at 202-205-0939.

/s/ Thomas L. Tidwell

THOMAS L. TIDWELL

Chief

[elder-miner]

MORE INFO ON IT

A federal district court in California issued a nationwide injunction that may have significant impacts on exploration activities within National Forests. For years activities that were categorically excluded from review under the National Environmental Policy Act (NEPA) were also exempt from U.S. Forest Service regulations concerning public notice, comment, and administrative appeals (36 C.F.R. Part 215). This exemption covered a wide variety of activities including mineral exploration that was categorically excluded from NEPA review. Last week, though, in Sequoia ForestKeeper v. Tidwell, the court held this exemption from public notice, comment, and administrative appeals requirements violated Section 322(a) of the Department of the Interior and Related Agencies Appropriation Act for Fiscal Year 1993, Pub. L. No. 102-381 (aka Forest Service Decisionmaking and Appeals Reform Act).

As a result of this decision, activities within National Forests that were categorically excluded from NEPA review will now be subject to 36 C.F.R. Part 215’s public notice, comment, and administrative appeals provisions. This will add a new layer of procedure to the permitting process that could significantly delay implementation of these activities. The U.S. Forest Service must now give notice of the proposed exploration activity and provide a 30-day comment period. Anyone who submits substantive comments then has 45 days after the U.S. Forest Service approves the activity to file an administrative appeal. The U.S. Forest Service then has 45 days to decide the appeal, and assuming the original decision is affirmed, exploration can begin 15 business days after the appeal decision is issued. All told, this could add approximately 140 days to the permitting process.

The U.S. Forest Service is in the process of drafting revisions to 36 C.F.R. Part 215 in response to Section 428 of the Consolidated Appropriations Act of 2012, Pub. L. No. 112-74, which requires that the U.S. Forest Service provide a pre-decisional objection process rather than the current post-decision administrative appeal process. However, it is unclear whether the changes mandated by the Consolidated Appropriations Act of 2012 extend to activities that are categorically excluded from NEPA review. Regardless, mineral exploration within National Forests that is categorically excluded from NEPA review will be subject to additional process and delay going forward.

http://www.gpo.gov/fdsys/pkg/USCOURTS-caed-1_11-cv-00679/pdf/USCOURTS-caed-1_11-cv-00679-5.pdf

Edited February 16, 2013 by elder-miner

[Hoser John]

CENSORED these stinkn' judges are killn' yet another industry..............................

[Gaius]

My question was driven by a posting on another prospecting web forum, the initial question posted was “Was there a gag order on the hearing in Rancho on Wed. Can not find a thing any place I look. Even the PLP home page says nothing.”

Beyond is I really don’t know.

[elder-miner]

CENSORED these stinkn' judges are killn' yet another industry..............................

Affected over 600 projects in national forests in 2012, more in 2013

Enviro's & tree huggers insist they have their say about everything.

NEPA is applicable & possible EA & EIS may be required.

Even replacing a toilet in an existing USFS campground bathroom is subject to public notice & appeal process.

140 day delay on everything that requires a USFS desision memo, or letter.

EIS could take years.

Edited February 16, 2013 by elder-miner

[El Dorado]

Fuggers

will not be happy till they drive us back into a medieval lifestyle

Edited February 16, 2013 by El Dorado

[elder-miner]

Fuggers

will not be happy till they drive us back into a medieval lifestyle

At least in medieval times, one could mine as you saw fit.