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Sequoia Forestkeeper v. Tidwell nationwide injunction


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USFS is both misguided and mistaken, ARA does not apply to minor locatable mineral exploration projects within applicable National Forests. ARA governs only the notice and comment process for proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA) ,(16 U.S.C. 1601 et seq.), ARA Sec. 322 (a).


ARA § 332 (a), Forest Service Decisionmaking and Appeals Reform (a) In General - In accordance with this section, the Secretary of Agriculture, acting through the Chief of the Forest Service, shall establish a notice and comment process for proposed actions of the Forest Service concerning projects and activities implementing land and resource management plans developed under the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1601 et seq.)


"Renewable Resources" defined; The term "renewable resources" shall be construed to involve those matters within the scope of responsibilities and authorities of the Forest Service on August 17, 1974 and on the date of enactment of any legislation amendatory or supplementary thereto. 16 USC § 1610


Locatable minerals management are not, nor ever have been within the scope of responsibilities and authorities of the USFS. USFS clearly acknowledges that fact;". . . It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior. . . ". 36 § 228.1


ARA governs only USFS "renewable" surface resource management within National Forests implemented through Forest Plans. Not "locatable" minerals under the General Mining laws, which are by no stretch of the imagination are "renewable", nor implemented by Forest Plans.


Forest Plans must provide for legitimate locatable mineral activities. But, by no means "implement" locatable mineral mining activities. Owner / operators of valid mining claims do, just as I am attempting to do here. Except, a clear statutory conflict exists. Imposed by how USFS arbitrarily implements regulatory procedures that are not applicable to a locatable mineral exploration projects that clearly fall in a CE category, far short of requiring an EA, or EIS under NEPA.


NEPA requires federal agencies to comply with its terms "to the fullest extent possible", Congress and the courts recognize that compliance is excused when a statutory conflict within the agency's authorizing legislation renders NEPA review impossible. See H.R. Conf. Rep. No. 91-765, 91st Cong., 1st Sess. (1969), reprinted in 1969 U.S.C.C.A.N. 2767, 2770; see also Flint Ridge Dev. Co. v. Scenic Rivers Ass'n, 426 U.S. 776, 788 (1976). NEPA's procedural requirements ''must be complied with to the fullest extent, unless there is a clear conflict of statutory authority.'' NEPA § 102(2)©, 42 U.S.C. § 4332(2)©


By its own explicit terms, ARA is not applicable to this project. Nor, for that matter is the Sequoia Forestkeppers injunction. USFS does not have the authority to impose unreasonable requirements that would have the effect of denying the statutory right to explore for mineral resources, provided the plan otherwise meets the intent of applicable laws and regulations (30 USC 612; 36 CFR 228A).


USFS cannot meet the mandatory timeframes of it’s own 36 CFR 228 regulations for this projects approval, and at the same time meet the lengthy time-frame requirements of Notice, Comment and Appeal procedures imposed by the Sequoia Forestkeepers injunction. Which places USFS in the untenable position of noncompliance with one law, or the other, or the Sequoia Forestkeepers injunction, and/or the Chiefs Directive to do so.


Which when all taken together, no matter what USFS does places valid mining claim owners in the untenable position of suffering significant cognizable injury from undue USFS delay. Caused by USFS arbitrary misapplication of inapplicable Law and regulations, not pertinent to this particular locatable mineral exploration project.

ChiefInstruction.pdf

Sequoia ForestKeeper v. Tidwell.pdf

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Nation wide injunctions- executive orders-dark of night regulations and catch 22222222 situations. I think I'll sell all my equipment and take up watching TV. What time does dancing with the stars come on?

Just submitted a NOI. I'll let you know were it goes.

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Application of a categorical exclusion is not an exemption from NEPA; rather, it is a form of NEPA compliance, albeit one that requires less than where an environmental assessment or an environmental impact statement is necessary. Indeed, even where an action falls into a categorical exclusion, an agency must nevertheless implement procedures for determining whether “extraordinary circumstances” exist, which may preclude a categorical exclusion.

NEPA provides that in “determining the scope of environmental impact statements,” an agency must consider, among other things, “[c]onnected actions,” and “indirect” and “cumulative” environmental “impacts” to the proposed action. By its plain language, however, this regulation applies only to environmental impact statements.40 C.F.R. § 1508.25.

Moreover, application of section 1508.25’s requirements to categorical exclusions is inconsistent with the efficiencies that the abbreviated categorical exclusion process provides. See 40 C.F.R. §§ 1500.4(p), 1500.5(k); Utah Env’t Congress v. Bosworth, 443 F.3d 732, 741 (10th Cir. 2006). “Where a proposed action fits within a categorical exclusion, full NEPA analysis is not required“. Wong v. Bush, 542 F.3d 732, 737 (9th Cir.2008).

40 C.F.R. § 1508.25 compliance is not applicable to a categorically excluded project, where no “extraordinary circumstances” exist. Because a compressive P-of-O covering the project includes stringent immediate implementation of all mitigation measures. Operator must also comply with all applicable State of Idaho Placer Mining Best Management Practices.

Both USFS and State of Idaho project site monitoring and inspection provides for ample ongoing oversight. A sufficient reclamation bond is in place guaranteeing P-of-O compliance. All taken together, this multiple layer of protective mechanisms provides for an overall De Minimis outcome from this sampling projects environmental effects.

You might also take note that NEPA does not apply to hunters who install and occupy temporary hunting camps, without adequate sanitation in place, outdoorsmen who utilize 4 wheel drive vehicles, ATV’s, motorcycles and the like to forge new trails or rudimentary roads wherever they wish and/or firewood gathers who cut trees anywhere they want, all within the same project area as this. They require no permits, Plans of Operation, mitigation or reclamation measures or bonds. Yet they cause extensive environmental damage all over this project site.

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The level set for threshold determinations by federal courts and agencies is critical to NEPA's implementation because the Act does not apply to federal actions unless they "significantly [affect] the quality of the human environment”. If a determination is made that an action does not have significant environmental effects, full compliance with NEPA is not required. Before proceeding with a proposed action, therefore, a federal agency must take a “hard look” at the action, then make a threshold determination whether the action has a potentially significant effect on the environment.

Special attention is required when the NEPA term “significant effect on the environment ” is applied in conjunction with locatable mineral exploration, development activities or projects under the General Mining laws (as amended). Congress recognizes that some level of surface disturbance is necessary to mine locatable minerals. Otherwise, surface mining operations would clearly be impractical, unfeasible or impossible. That is why Congress in amending the General Mining laws provided;

“. . . any use of the surface of any such mining claim by the United States . . . shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto . . .“. 30 USC § 612 (b) “. . . any severance or removal of timber which is permitted under the exceptions of the preceding sentence, other than severance or removal to provide clearance, shall be in accordance with sound principles of forest management.” 30 USC § 612 ©. that is also why USFS regulations provide mining activities “. . . shall be conducted so as, where feasible, to minimize adverse environmental impacts on National Forest surface resources (36 CFR 228.8).


USFS must be cognizant, it is not feasible to bulk sample a surface placer gold deposit without providing “clearance” of whatever other resource (e.g., topsoil, vegetation) that may be situated on the immediate surface of the deposit, where such sampling takes place. Taking into consideration that in doing so, such clearance is not even required to be in accordance with sound principles of forest management 30 USC § 612 ©.

Given those facts, it is apparent that a “statutory conflict” exists in USFS attempting to apply stringent NEPA standards, to locatable mineral development activities. Which are plainly excluded and exempted by differing standards, in other applicable statutory law governing locatable mineral projects.

USFS must also be cognizant that any permitting delay beyond the mandated 90 day timeframe for permit approval would “materially interfere” with locatable mineral development, in contravention of 30 USC § 612 (b). USFS must also recognize that the ARA is not applicable to locatable mineral activities, simply because by it’s own terms, it does not. Nor, for that matter is application of the Sequoia Forestkeepers injunction, or the Chiefs directive regarding it. As doing so would exceed the permitting timeframe limits 36 CFR 228 regulation imposes on this projects permitting approval.

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CEQ regulations implementing NEPA explain that there are several questions an agency must answer before it can determine how to comply with NEPA. First, the agency must determine whether the proposed action requires the preparation of an environmental assessment (EA),an EIS, or neither. Neither document must be prepared if the proposed action qualifies as a “categorical exclusion”.

Although NEPA broadly states that it applies to all “major Federal actions significantly affecting the quality of the human environment,” the judiciary has created two exemptions: the “irreconcilable conflict” exemption and the “functional equivalence” exemption.

The irreconcilable conflict exemption applies if compliance with NEPA “would create an irreconcilable and fundamental conflict” with another statute, see Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of Okla., 426 U.S. 776, 788 (1976). This exemption derives from the portion of section 102(2)© of NEPA that states that all federal agencies must comply with NEPA’s procedural requirements “to the fullest extent possible”, see 42 U.S.C. § 4332(2)©.

In other words, section 102(2)© recognizes “that where a clear and unavoidable conflict in statutory authority exists, NEPA must give way. . . . ‘NEPA was not intended to repeal by implication any other statute”, see Flint Ridge Dev. Co., 426 U.S. at 788 (citing United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 694 (1973)).

As explained in prior documentation provided to you. An irreconcilable and fundamental statutory conflict also exists here. Because if USFS imposes Notice, Comment and Appeal periods under the ARA. USFS cannot meet the 90 day project approval timeframes mandated within 36 CFR 228 regulations. Secondly, another irreconcilable statutory conflict exists here. In that the only ground disturbance activity involved with the project is to provide “clearance”, so that subsurface sampling can take place. Such clearance is not required to be in accordance with sound principles of forest management , see 30 USC § 612 ( c).

The “functional equivalence” exemption means, [W]here an agency is engaged primarily in an examination of environmental questions, where substantive and procedural standards ensure full and adequate consideration of environmental issues, then formal compliance with NEPA is not necessary, but functional compliance is sufficient. We are not formulating a broad exemption from NEPA for all environmental agencies or even for all environmentally protective regulatory actions of such agencies. Instead, we delineate a narrow exemption from the literal requirements for those actions which are undertaken pursuant to sufficient safeguards so that the purpose and policies behind NEPA will necessarily be fulfilled, see Portland Cement, 486 F.2d at 1257.

USFS regulations at 36 § 228.8 Requirements for environmental protection. All operations shall be conducted so as, where feasible, to minimize adverse environmental impacts on National Forest surface resources, including the following requirements:

(a) Air Quality. Operator shall comply with applicable Federal and State air quality standards, including the requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq. ).

(b) Water Quality. Operator shall comply with applicable Federal and State water quality standards, including regulations issued pursuant to the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et seq. ).

© Solid Wastes. Operator shall comply with applicable Federal and State standards for the disposal and treatment of solid wastes. All garbage, refuse, or waste, shall either be removed from National Forest lands or disposed of or treated so as to minimize, so far as is practicable, its impact on the environment and the forest surface resources. All tailings, dumpage, deleterious materials, or substances and other waste produced by operations shall be deployed, arranged, disposed of or treated so as to minimize adverse impact upon the environment and forest surface resources.

(d) Scenic Values. Operator shall, to the extent practicable, harmonize operations with scenic values through such measures as the design and location of operating facilities, including roads and other means of access, vegetative screening of operations, and construction of structures and improvements which blend with the landscape.

(e) Fisheries and Wildlife Habitat. In addition to compliance with water quality and solid waste disposal standards required by this section, operator shall take all practicable measures to maintain and protect fisheries and wildlife habitat which may be affected by the operations.

(f) Roads. Operator shall construct and maintain all roads so as to assure adequate drainage and to minimize or, where practicable, eliminate damage to soil, water, and other resource values. Unless otherwise approved by the authorized officer, roads no longer needed for operations: (1) Shall be closed to normal vehicular traffic, (2) Bridges and culverts shall be removed, (3) Cross drains, dips, or water bars shall be constructed, and (4) The road surface shall be shaped to as near a natural contour as practicable and be stabilized.

(g) Reclamation. Upon exhaustion of the mineral deposit or at the earliest practicable time during operations, or within 1 year of the conclusion of operations, unless a longer time is allowed by the authorized officer, operator shall, where practicable, reclaim the surface disturbed in operations by taking such measures as will prevent or control onsite and off-site damage to the environment and forest surface resources including: (1) Control of erosion and landslides; (2) Control of water runoff; (3) Isolation, removal or control of toxic materials; (4) Reshaping and revegetation of disturbed areas, where reasonably practicable; and (5) Rehabilitation of fisheries and wildlife habitat.(h) Certification or other approval issued by State agencies or other Federal agencies of compliance with laws and regulations relating to mining operations will be accepted as compliance with similar or parallel requirements of these regulations.

The aforesaid regulatory regime imposed by the USFS over a De Mimimis “categorically exempt” locatable mineral project is certainly the “functional equivalence” of NEPA. Thus, formal compliance with NEPA is unnecessary, because functional compliance is sufficient.

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Elder miner; Good morning. Is there a source where these pages can be aquired (PDF file)? I'd like to research them. I have presented many of the points that these documents contain to our local "minerals officer" in the past and all it does is creat an adversarial relationship. If I find it necessary to go over her head I will need to be better versed on applicable law and precedent. Thanks.

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When I have the free time (not often), I search out the various conflicts in law pertinent to locatable mineral activities under the General Mining laws. Then set them to paper, as best I can, then post them here & other places where they may be of some help to others. So, there is no particular PDF file to research. The data is out there, it’s just a time consuming PITA to find what’s applicable, then set it down in an understandable manner.


Sadly, back in 1974, USFS got off on the wrong foot in putting 36 CFR part 228 regulations governing mining in National Forests together. In that they used the wrong authorities. Most of which cover “renewable” resources. Which “locatable minerals” certainly are not. Unless they grow on vegetation & trees, which isn’t the case anywhere on earth. So, you have this huge USFS regulatory bureaucracy over locatable minerals that has it wrong, for over 40 years.


USFS has blundered time & time again in promulgation of 36 CFR 228 regulations. Place yourself in USFS shoes. They have mountains of statutory law, subsequent regulations, Directives, manuals, P&P that govern everything they do. That is their job. They have to apply all that as they are directed to do, otherwise they get laid off or fired. So, USFS employees are between a rock & a hard place in that regard.


Certainly, when some local “yokel” miner points out a conflict, USFS sometimes gets ‘adversarial”. You tell USFS they are not right, then provide clear unequivocal law or regulation that proves your point. The only thing USFS can do is offer sorry excuses, or bureaucratic mumbo-jumbo trying to “sweep it under the rug”, and will - if possible. Simply because that is their job.


Sometimes, if you have the expertise, you can change USFS ways. But, as you well know, that is near impossible to do alone. Secondly, getting a bunch of miners to stand together united in pushing some issue is also next to impossible. Simply because getting miners to agree on anything, then support that finding is like herding gerbils, e.g., next to impossible.


The long & short of it is in USFS regulatory conflicts; pick fights you can win, with or without outside support. Because there is seldom any outside support available. Otherwise USFS regulators and/or environmental groups will trample whatever rights you have - straight into the dirt.

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There is sound Congressional reasoning why the General Mining laws contain various statutorily imposed protections, rights and rewards to those who partake in the risk of mineral exploration, development and mining in America. In that they provide the incentives for individuals, and companies to invest significant time, labor and capitol necessary to explore for, find, develop and produce a supply of domestic minerals.


Foremost, these incentives were provided to secure a constant supply of domestic minerals that provides our industry, economy, commerce and people the fundamental necessities with which to thrive. If otherwise, we become dependent on foreign sources that have their own best economic interests in mind, rather than ours. Dependence on foreign sources of the very things our infrastructure, industry, national security, commerce and economic wellbeing is dependent on, is profoundly foolish. In other words, domestic mining is essential to this great nations continued wellbeing.


Because the richest readily available domestic mineral deposits that were easy to develop are now deleted. What remains is more costly to find, and far more capitol intensive to develop. As such, existing incentives must be strengthened, rather than weakened. If otherwise, domestic mining will decline, and as it does, so shall America’s economy, commerce and national security.


Because the majority of remaining mineral resources in America are situated within National Forests. USFS has a responsibility to improve its outdate regulations, to minimize unnecessary delays on locatable mineral activities by streamlining the regulatory process for locatable mineral development within Nation Forests. If otherwise, arbitrary delays caused by application of unreasonable regulations, will accelerate the decline in American productivity.

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  • 5 weeks later...

I say so myself........... :old:

The Forest Service Chief’s 2012 Sequoia Forestkeepers Directive is; 1), unwarranted by the facts. 2), in excess of the Forest Service’s statutory authority. 3), unlawfully withholds a valid mining claim owners statutorily guaranteed rights accrued under the General Mining laws 30 U.S.C. §§ 21-54. 4), impermissibly disallows a De Minimis locatable mineral development proponents project 36 C.F.R 215.4(a) and 215.12(f) “categorical exclusion“. 5), improperly imposes ARA notice, comment and appeal periods. 6), unreasonably causing a project proponent impermissible permitting delays. 7), exceeds mandatory imposed 36 C.F.R. 228.5 (a) permitting approval timeframes. 8), compels uncompensated taking of private property contrary to Executive Order 12630. 9), is arbitrary, capricious, and not in accordance with procedures required by law. 10), is in violation of the Administrative Procedures Act, 5 U.S.C. § 706(2)(A) and (D). :yesss:

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AMEN...but now what?? John

Given those FACTS. Law suit would be a winner, under the equal access to justice act, USFS would have to pay, costs & attorney fees.

I think "somebody" with "standing" may sue USFS sooner or later. I think sooner than later.

Anyone going through the permitting process, that gets delayed by it, has "standing".

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I've filed in at least a dozen forests and never had a problem. Not for me ,maybe half,but covered'm in bs and came out smiling but NOT any in about the past 10 years. NOW though all I know just do and FM with the NOI/POO because not legal. Once SMARA limits approached yes but otherwise--op? what op? ain't got no stinkn' op. Sic sic world.Thanx for taking the time to post this info in your minds eye as sooo many don't have a clue,just yes sir and comply but ol'dogs LL NO-John

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USFS Reg's (36 CFR 228) mandate 90 days to approve permitting, minus the time project site is inaccessible.

Multiple Use Act has a statutory conflict with NEPA - 30 USC § 612 ( c).

NEPA not applicable where statutory conflict exists.

NEPA is the only law that allows public comment.

But, it doesn't apply to a categorically excluded (CE) project, also doesn't apply because of the statutory conflict.

USFS imposes public notice under NFMA for public scoping of projects.

Locatable minerals are not “renewable resources” so NFMA doesn’t apply.

Chiefs Directive is fatally flawed - in that it imposes comment - notice & appeal periods - that exceed 90 day permitting time frame prescribed in 36 CFR 228 Reg’s.

General Mining laws do not prescribe or allow for public notice, comment & appeal.

Executive order 12630 mandates no Reg's can cause a private property "taking".

All of the above USFS imposes - cause a private property right "taking". (arbitrary permitting delays if permitting approval exceeds 90 days)

30 USC § 612

(a) Prospecting, mining or processing operations

Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.

© Severance or removal of timber

Except to the extent required for the mining claimant’s prospecting, mining or processing operations and uses reasonably incident thereto, or for the construction of buildings or structures in connection therewith, or to provide clearance for such operations or uses, or to the extent authorized by the United States, no claimant of any mining claim hereafter located under the mining laws of the United States shall, prior to issuance of patent therefor, sever, remove, or use any vegetative or other surface resources thereof which are subject to managment or disposition by the United States under subsection (b) of this section. Any severance or removal of timber which is permitted under the exceptions of the preceding sentence, other than severance or removal to provide clearance, shall be in accordance with sound principles of forest management.

In other words > providing “clearance” need not be in accordance with sound principles of forest management. To “trench” you have to “clear” away surface material. That is providing “clearance”.

 

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