nepa and the mining law
TRANSCRIPT
Using the Limits of Discretion over Mining
to Your Advantage in NEPADecember 2, 2010
Shull Solutions, LLC
Poor
Process
Poor
Leadership
Poor
Execution
Challenge Why this is a concern Implications
New Information
Legally required to address –
could change project design
New Procedures
Will require rework Throw out work already completed
New personnel
No knowledge of details, new ideas (not necessarily
better, just different)
Delay to bring up to speed, effort and time to process new ideas to
acceptance or rejection
Changes in project by
proponent or nature
Must likely scope again –new alternative? Rework
the analysis
Throw out work already complete
Recent court rulings
Must take the time to address
Could change project design, analysis process, details, etc.
Legitimate Reasons for Delay
Challenge Why this is a concern Implications
Poor process
No logical flow
•Confusion for IDT
•Confusion for Public
•Retracing steps
•Poor foundation for findings and decisions
•Longer documents
•Longer timeframes
•Loopholes for challenge
•Unnecessarily complex or controversial communications with public
Poor Leadership
•No clarity on decision space
•No limits to data collection or analysis
•Unproductive/wasted time and money
•Lack of IDT confidence in process or result
•Loss of IDT support of process or result
Some Illegitimate Reasons for Delay
NEPA’s Objectives:
•Supplemental legal authority
•Procedural reform
•Disclosure of environmental information
•Resolution of environmental problems
•Fostering intergovernmental coordination
•Enhancing public participations in government
planning and decision making
Council on Environmental Quality. NEPA: A study of Its Effectiveness After 25 Years.
Executive Office of the President, Washington D.C. 1997
… Ultimately, it‘s about Ensuring a sound planning process,
Considering environmental effects,
Ensuring full disclosure, and
Providing for public engagement.
Ultimate goal, though, is to:
Get to a sound defensible DECISION!! Process isn‘t the goal
Disclosure and public engagement isn‘t the goal
(these are process requirements)
The Decision is the goal
WHY is it hard getting to a decision?
• Decisions have consequences,
often with winners and losers
• Decision-makers differ in their strengths in
making a decision
• Leadership teams differ in their decision-
making support
Decision-maker Delay Tactics
Some decision-makers unconsciously procrastinate!
By waiting for better options
(waiting for a rescue)
By continuing dialogue with all parties - looking
to find agreement or compromise – again,
looking for an easy way out when there may not
be room for compromise or consensus:
o Timber/Old growth example
(no interest overlap)
o Ashland Watershed Example
(agreement among the reasonable, leave the
intransigent behind)
By requiring more analysis
Project opponents see delay as their
friend – so they strive to delay the process
new information
extending comment periods
appeals (USFS)
lawsuits, TROs, etc
Congressional inquiries
If a skilled and effective Interdisciplinary
Team was together with the proponent
and the decision-maker at the project site
– and you had no NEPA process
requirements…
How long would it take for you to get to
an environmentally responsible
decision?
How might that decision be made?
1. Problem to solve / Opportunity to Capture
2. Idea on how to solve it/capture it
3. Get feedback on that idea
4. Tweak the idea/suggest different ideas
5. Evaluate the pros and cons of different ideas
6. Choose one
Purpose and Need –Chapter 1
Proposed Action - Chapter 1
Scoping – Chapter 1
Mitigation/Alternatives –Chapter 2
Effects Analysis – Chapter 3
Decision - DN/FONSI or ROD
Section 102(2)(C) of NEPA (42 U.S.C.
4332(2)(c) lays it out
• Proposals (clear proposal for specific action)
• Legislation (agency proposals to Congress
for legislation)
• Major Federal Action – (much of what we do) Significantly …
Affecting…
the Quality of the Human Environment
We (USFS decision-makers) choose to do something …
Within our legal authority … That involves specific activities (predictable
time and space) … That has environmental consequences … That is reviewable by courts or administrative
tribunals under the Administrative Procedure Act or other applicable law as agency action.
40 CFR 1508.18(a)
―NEPA only refers to decisions which the agency
anticipates will lead to actions…
That is, only when an agency reaches the point in
its deliberations when it is ready to propose a
course of action need it be ready to produce an
impact statement‖
(Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980)
Also in this ruling is the clarification that:
―decisions by federal agencies which allow others to
take action affecting the environment can constitute
federal action‖ (paragraph 17)
. . . the federal agency took action affecting the
environment in the sense that the agency made a
decision which permitted some other party private
or governmental to take action affecting the
environment. (paragraph 39)
(Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980)
We aren‘t the ones choosing to act (inaction –State hunting regulations for example)
We don‘t have legal authority to act or allow/deny the action – (state hunting again)
The decision doesn‘t result in a specific action in time or space – (rejecting a proposal) Special use application decision to not act on it does not require NEPA... this is ―INACTION‖
There are no environmental consequences –(changing a road from one-way to two-way traffic flow) – changing camping fees, etc…
Choosing the No Action Alternative:• A Proposed Action was raised to meet a purpose and need in a NEPA
process
• An intentional decision was made to choose ―No Action‖ over the ―Proposed Action‖
• NEPA is needed
“Actions include the circumstance where the responsible officials fail to act and that failure to act is reviewable by courts or administrative tribunals under the Administrative Procedure Act or other applicable law as agency action.” 40 CFR 1508.18(a)
Choosing to not act (inaction):• Raising no Purpose and Need nor proposing any action whatsoever…
• A conscious decision to not act
• Decision to not act is not reviewable by the courts, etc.
• NEPA is not needed
NEPA is not needed if there is a decision to not act.
“…, only when an agency reaches the point in its
deliberations when it is ready to propose a course of action
need it be ready to produce an impact statement…
Logically, then, if the agency decides not to act, and
thus not to present a proposal to act, the agency never
reaches a point at which it need prepare an impact
statement.‖ (paragraph 29)
“No agency could meet its NEPA obligations if it had to
prepare an environmental impact statement every time the
agency had power to act but did not do so.” (paragraph 54)
Defenders of Wildlife v. Andrus, 627 F.2d 1238 (D.C. Cir. 1980)
min·is·te·ri·al
adj \ˌmi-nə-ˈstir-ē-əl\
Definition of MINISTERIAL (from the on-line Merriam
Webster dictionary)
1: of, relating to, or characteristic of a minister or the
ministry
2 a : being or having the characteristics of an act or
duty prescribed by law as part of the duties of an
administrative office b : relating to or being an act
done after ascertaining the existence of a specified
state of facts in obedience to a legal order without
exercise of personal judgment or discretion
3: acting or active as an agent
— min·is·te·ri·al·ly\-ē-ə-lē\ adverb
“NEPA applies only to Federal decisions that are
considered discretionary and does not apply to those
that are considered ministerial. This distinction is based
on the notion that if a federal agency cannot exercise any
discretion over the approval of a proposed action, it does
not have the authority to impose any of the
recommendations made in an EIS or EA. For example, in
South Dakota v. Andrus, 614 F.2d 1190 (8th Cir.), cert.
denied, 449.U.S. 822 (1980), the court held that NEPA did
not apply to the general Mining Act of 1872, which
requires automatic (e.g. ministerial) issuance of mining
patents if certain conditions are satisfied.” (from “The NEPA
Book” 2001)
“Ministerial acts, however, have generally been held
outside the ambit of NEPA's EIS requirement. Reasoning
that the primary purpose of the impact statement is to aid
agency decisionmaking, courts have indicated that
nondiscretionary acts should be exempt from the
requirement. N.A.A.C.P. v. Medical Center, Inc., 584 F.2d
619, 634 (2d Cir. 1978); Monroe County Conservation
Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972);
Environmental Defense Fund, Inc. v. Corps of Engineers of
United States Army, 470 F.2d 289, 294 (8th Cir. 1972), cert.
denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973);
Calvert Cliffs' Coordinating Committee, Inc. v. A.E.C., 146
U.S.App.D.C. 33, 38, 449 F.2d 1109, 1114 (D.C.Cir.1971).
South Dakota v Andrus, Eighth Circuit, 1980 (paragraphs 9)
(Ruling goes on to discuss how patenting is ministerial because it is
automatic and does not authorize anything)
So let‘s note the key principle and logic flow:
1. Ministerial acts do not require NEPA.
2. Approval of a POO is a ministerial act.
3. Approval of a POO does not require NEPA.
Take home lesson:
Our NEPA analysis is not intended to authorize
any mining under a POO and should never be
construed to do so.
“The regulations supply the answer: "Section 7 and the requirements of
this part apply to all actions in which there is discretionary Federal
involvement or control." 50 C.F.R. Sec. 402.03 (¶ 27)
“…we conclude that where… the federal agency lacks the discretion to
influence the private action, consultation would be a meaningless
exercise; the agency simply does not possess the ability to implement
measures that inure to the benefit of the protected species.” (¶ 29)
“…the BLM's preparation of an EA cannot be considered an authorization
when Seneca already possessed the right to perform the activity.” (¶ 37)
“In sum, we hold that Congress did not intend for section 7 to apply…
where the federal agency currently lacks the discretion to influence the
private activity for the benefit of the protected species.” (¶ 39)
“ To a large extent, our decision [regarding ESA]… dictates the
resolution of the NEPA claim. Both of the statutes' procedural
requirements are triggered by a discretionary federal action.” (¶ 41)
Sierra Club et al v Babbitt, Ninth Circuit, 1995
Take home lesson #2:
Where there is no discretion,
there is no NEPA documentation or
ESA consultation.
Simple guidelines for an efficient Purpose and Need
It addresses clearly the problem to be solved or the opportunity
to capture.
For the reader, it clearly answers the questions:
• ―Why is the agency proposing this action?‖
•―Why?‖
•―So, what if they don‘t?‖
For the decision maker, it is narrow enough to prevent
inappropriate or unproductive alternatives.
It cites the laws or regulations that guide the action.
―We have a [very specific] problem/opportunity; I need to solve
it/capture it because…; If I don‘t… [bad things happen/good
things won‘t happen]; It is my legal authority/responsibility to
do this [legal cite]. ―
Critical NEPA items for defensible mining
EAs/EISs:
• Purpose and Need
• Proposed Action
• Decision to be Made
These need to be logically linked together
and flow from one to the other.
If the PN/PA/SCOPING/ISSUES/ALTS
are cleanly linked together:
• your NEPA writing will be very clean,
• your dismissal of unproductive ideas will be
supportable,
• your comparison of Alternatives can be
meaningful, and
• your logic for making a decision can be
supported.
―Under the mining laws a person has a statutory
right, consistent with Departmental regulations, to
go upon the open (unappropriated and
unreserved) Federal lands for the purpose of
mineral prospecting, exploration, development,
extraction and other uses reasonably incident
thereto.‖
See 30 U.S.C. § 21-54, 43 C.F.R. § 3809.3-3, 0-6
―16 U.S.C. Sec. 478 (1982), which authorizes
entry into national forests for "all proper and
lawful purposes, including that of prospecting,
locating, and developing the mineral resources
thereof," specifically states that "such persons
must comply with the rules and regulations
covering such national forests." This statutory
caveat encompasses all rules and regulations,
not just those (such as Part 228) which apply
exclusively to mining claimants.‖
US v. Doremus, Ninth Circuit, 1989, (¶ 10)
“Moreover, while locators were accorded the right of
possession and enjoyment of all the surface resources
within their claim, the "primary title, the paramount
ownership is in the government ... it retains the title, with a
valuable residuary and reversionary interest." United States
v. Rizzinelli, et al., 182 F. at 681 (D. Idaho, 1910). "The
paramount ownership being in the government, and it also
having a reversionary interest in the possessory right of the
locator, clearly it has a valuable estate which it is entitled to
protect against waste and unlawful use." Id. at 684.”
(U.S v. Weiss ¶ 15)
In 1955, Congress amended the mining laws by
passing the Multiple Use Mining Act, 30 U.S.C. § 601,
et seq., which retained to the Federal Government the
right to manage the surface resources of subsequently
located unpatented mining claims.
See 30 U.S.C. § 612(b)
The Act provides that the unpatented mining claims
are subject to the right of the United States and its
permittees and licensees to manage surface
resources and ―to use so much of the surface thereof
as may be necessary for such purposes or for access
to adjacent land‖ so long as such does not ―endanger
or materially interfere with prospecting, mining or
processing operations or uses reasonably incident
thereto.‖
Forest Service cannot reject a reasonable plan
―The Forest Service cannot categorically deny an
otherwise reasonable plan of operations.”
“Of course, the Forest Service would have the authority to
deny an unreasonable plan of operations or a plan
otherwise prohibited by law.”
Havasupai Tribe, et. al. v USA, et. al.
CIV. No.. 88-971 PHX RGS
U.S. District Court – D. Ariz.
(752 F. Supp. 1471 (D. Ariz. 1990))
April 18, 1990
Forest Service can enjoin unreasonable mining
“Defendants' utilization of blasting and bulldozing was destructive to
the surface resources and consequently not a reasonable method of
exposing subsurface deposits under the circumstances shown by the
evidence in this case. (¶13)
“Under the circumstances shown by the evidence in this case, the Forest
Service may require the locator of an unpatented mining claim on
national forest lands to use nondestructive methods of prospecting. (¶
14)
―Their methods of exploration were unnecessary and were
unreasonably destructive of surface resources and damaging to the
environment. They were warned and persisted. The judgment of the
District Court is affirmed.‖ (¶ 30)
U.S. v. Richardson, Ninth Circuit, 1979, (¶ 13-14 citing District Court, affirmed
in ¶ 30)
Agency can enforce reasonable rules and regulations
regarding mining
“The Secretary of Agriculture has been given the
responsibility and the power to maintain and protect our
national forests and the lands therein. While prospecting,
locating, and developing of mineral resources in the
national forests may not be prohibited nor so unreasonably
circumscribed as to amount to a prohibition, the Secretary
may adopt reasonable rules and regulations which do not
impermissibly encroach upon the right to the use and
enjoyment of placer claims for mining purposes.”
U.S. v. Weiss, Ninth Circuit, 1981 (¶ 16)
Agency can impose and enforce reasonable Rules and
Regulations
Though mining is authorized by law, regulations apply (¶ 6-10)
Agency has right to regulate via prior approval of an operating plan,
and the operating plan then ―becomes the definition of what is
reasonable‖ (¶11,12)
Agency does not need to show that an action is unreasonable before
prohibiting it. Agency can rely on existing regulation or judgment
whether action is ―reasonably incident‖ to mining. (¶ 14)
Advanced approval is required (¶ 24)
U.S. v. Doremus, Ninth Circuit, 1989
36 CFR 228
No authority for non-approval
No provisions for shutting down an operation
No provisions for revoking a Plan of Operations
Process:
• Accept the plan (case law allows ―reasonable plans‖ only‖)
• Conduct an ―environmental analysis‖ (no mention as to
why or how… case law says a DN, EA, or EIS = a NEPA doc)
• Apply terms and conditions (case law requires ―reasonable‖)
• Bond it
• Approve it (case law says no authority to ―not approve‖ if
reasonable)
It‘s clear the process is ministerial!
Let‘s pull the puzzle pieces together…
1. We have a miner with a claim – with a conditional property
right to the minerals – and a right to mine them reasonably. We
are prohibited by law from interfering with that.
2. We have a reasonable plan of Operations from this miner that
we cannot say ―no‖ to.
3. We have a ministerial requirement to officially approve that
mining plan of operations.
4. We have the legal charge to protect surface resources from
unnecessary degradation.
5. We have the authority to apply reasonable terms and conditions
to the POO to protect surface resources.
6. We have to conduct an analysis, but it does not authorize the
POO, or the mining
What is the analysis for?
It‘s not for approval of the Plan of Operations.
How do we know?
• Since we have no authority for ―non-approval‖ ,
• We therefore have no ―approval‖ authority either.
• Fundamentally, mining is ―approved‖ by the mining
laws.
• We have approval responsibility, not authority
• It‘s ministerial.
The Mining NEPA problem
• We are trained and accustomed to use NEPA as a decision tool,
e.g. an authorization tool for approving an action.
• The public sees NEPA as our means of making an ―Approval‖
decision, and then which methods to approve.
• We have not received direction from our leadership on how to
do NEPA in support of approving mining plans of operations.
• And what about that Proposed Action.. whose is it?
• And what about the No Action Alternative? How do we deal
with that?
• For example…
Tony Davis Arizona Daily Star Arizona Daily Star
Posted: Wednesday, August 18, 2010
The U.S. Forest Service has said once again, this time in a draft report, that it can't legally
say "no" to the Rosemont Mine if the mine meets environmental laws.
In an internal version of its draft environmental impact statement's first chapter, the Forest
Service stakes out what appears to be a different position than U.S. Agriculture Secretary
Thomas Vilsack has taken.
Historically, the Forest Service has said it can't veto a mine, and the language in the latest
draft is similar to what it has said in many previous environmental documents on other mines.
But Vilsack wrote in a letter last October to U.S. Rep. Gabrielle Giffords that the Agriculture
Department, the Forest Service's parent agency, hadn't decided whether the feds can say
"no" to Rosemont.
That is still the Forest Service's position, despite what the new draft document says, a service
official said this week.
"The Forest Service hasn't made a clear decision on which way we are going," said Francisco
Valenzuela, the service's acting Southwest regional forester. "We will listen to public comment
and opinion. It's premature to say one way or another.“
Asked whether the document conflicts with Vilsack's statements, Valenzuela said no, but that
he can see why people would think so "because it's such a complex subject."
Reasonableness
This term comes into play at a number of steps:
1. The miner‘s PoO must be reasonable. We can reject it if it is
not.
2. Our terms and conditions have to be reasonable.. we will be
subject to a ―Arbitrary and Capricious claim and a takings
claim if we are not. Weiss ¶ 8,10,16 ; and 336 CFR 228.4 (e) 3.
3. An approved operating plan becomes the ―reasonable‖
standard for that mine‘s operation.. anything beyond it
becomes ―unreasonable‖ Doremus ¶11
4. The miner‘s actions have to be ―reasonably incident to‖
mineral removal.
And herein is the agency‘s power to constrain the operation to
protect surface resources…
The Forest Service is not prevented from applying reasonable terms
and conditions even if those conditions make the mining unprofitable.
If you go that far, though, expect the reasonableness of the condition
to be tested in court.
What is reasonable under:
• Endangered Species Act? (Havasupai v U.S. ¶ 38)
• Clean Water Act?
“Although Forest Service decisions regarding access may indeed affect
whether a claim is found to be "valid," that fact in no way alters 16 U.S.C.
Sec. 1134(b)'s unequivocal delegation of authority to the Secretary of
Agriculture. While Congress has assigned to Interior authority to
adjudicate claim validity, it is free to allocate regulatory authority as it
chooses and in 16 U.S.C. Sec. 1134(b) it has empowered Agriculture to
make decisions regarding a particular issue that happens to have
collateral consequences for claim validity.” (Clouser v. Espy ¶ 33)
What is the miner’s purpose and need?
To exercise their right to mine and to take possession of their
property.
• Do we care?
• Do we embrace it as our own?
• Are we proposing to mine?
What is the Forest Service Purpose and Need?
To fulfill our ministerial responsibilities by:
• Approving the plan,
• Not obstructing miners in the exercise of their rights.
• Protecting surface resources
• Conducting an analysis
The Decision to be Made
What is our decision space? Where is our discretion?
• Terms and conditions for protecting surface resources.
• Our decision space is only deciding what terms and
conditions
we will apply to this plan of operations
• Does making this decision fulfill our purpose and need?
• So now we have something concrete to propose...
what is it? How do we word it?
• Propose to approve this plan of operations with THIS PKG of
terms and conditions, or
• Propose to approve this plan of operations with THAT PKG of
terms and conditions, or
• Propose to approve this plan of operations with NO PKG of
terms and conditions
Sierra Club v. Hodel, Tenth Circuit, 1988
“The need for NEPA study hinges on the presence of major federal action, a
term which NEPA does not define. The Council on Environmental Quality
(CEQ), however, has issued regulations defining the term, and, as the
Supreme Court has stated, "CEQ's interpretation of NEPA is entitled to
substantial deference." Andrus v. Sierra Club, 442 U.S. 347, 358, 99 S.Ct.
2335, 2341, 60 L.Ed.2d 943 (1979). These regulations establish that major
federal action encompasses not only actions by the federal government but
also actions by nonfederal actors "with effects that may be major and which
are potentially subject to Federal control and responsibility." 40 C.F.R. Sec.
1508.18 (emphasis added).” (¶ 95)
“The touchstone of major federal action, in the context of the case before us,
is an agency's authority to influence significant nonfederal activity. This
influence must be more than the power to give nonbinding advice to the
nonfederal actor.” (¶96)
“We do find major federal action, however, in another aspect of BLM's responsibilities under FLPMA as applied to the County's proposed road improvement project. BLM's duty under FLPMA Sec. 603(c) and its regulations, to prevent unnecessary degradation of WSAs from these changes in the right-of-way, injects an element of federal control for required action that elevates this situation to one of major federal action. When dealing with defining boundaries of public lands or existing rights-of-way, BLM has no power to designate alternatives or deny nonfederal actors a course of action. The same is true as to improvements on R.S. 2477 rights-of-way that do not affect WSAs or implicate other federal duties containing some measure of discretion. But as to improvement on rights-of-way affecting WSAs, while BLM may not deny improvements because they impair WSAs, it retains a duty to see that they do not unduly degrade. The IMP regulation we have upheld states: "When it is determined that the rights conveyed can be exercised only through activities that will impair wilderness suitability, the activities will be regulated to prevent unnecessary and undue degradation." Revised IMP, 48 Fed.Reg. at 31,855 (emphasis added). Thus, when a proposed road improvement will impact a WSA the agency has the duty under FLPMA Sec. 603(c) and the regulation to determine whether there are less degrading alternatives, and it has the responsibility to impose an alternative it deems less degrading upon the nonfederal actor. While this obligation is limited by BLM's inability to deny the improvement altogether, it is sufficient, we hold, to invoke NEPA requirements.”
Sierra Club v. Hodel, ¶ 98
“We order the district court to remand to BLM for an environmental assessment, followed by either a finding of no significant impact or an environmental impact statement. Whatever the shortcomings of the previous studies, on remand BLM will be required to address environmental issues affecting only those areas in which, under the law of the case, it still has authority to act. See League of Women Voters, 730 F.2d at 584 (further study unnecessary when "all agency decisions of any significance had already been made"). BLM's authority is limited to what is relevant to its duty to prevent unnecessary degradation of the WSAs.”
Sierra Club v. Hodel, ¶ 135
Review
1. Chetco Chapter One review
2. Rich Riffle scoping letter
0
20
40
60
80
100
120
Miner's Proposal/ No
Action
Proposed Action Agency Alt Two
Effects of Alternatives
Effects
Effects analysis wording
Your action is to mitigate another‘s harm.
• Agency action isn‘t creating nor even allowing the harm... this harm
was already allowed by Congress!
• Congress already authorized the harm inherent in the No Action
Alternative.
Your effects language for Chapter Three, then , will be like something
you‘ve never written.
• Under X alternative, the impacts of the miner‘s action will be
reduced by…
• The effect of the Forest Service‘s action is to reduce the miner‘s
effects by…
Remember, these are effects of agency action, not the effects of the miner‘s
action! Effects of Miner‘s actions are in the No Action alternative.
Avoid all text that could imply that the Forest Service action is mining. This
won‘t be as easy as it sounds right now.
We have an obligation to consult, because:
• there is ―further action relevant to the
threatened species that [we] can take prior
to [the miner‘s] exercise of their … rights‖
• The agency has the ―discretion to
influence the private action‖, thus
consultation would not be a ―meaningless
exercise‖.
• The agency possesses ―the ability to implement
measures that inure to the benefit of the protected
species‖.
Sierra Club v. Babbitt (Ninth Circuit, 1995) ¶29
Considerations for Terms and Conditions to
comply with ESA:
• Must be reasonable
• Must be consistent with recovery plans and
prior agency consultations and BOs.
• Should not just apply conditions so there will
be no effect.. That could be judged
unreasonable if the agency had been
granted ―takes‖ for other actions in the past
In this consultation the USFWS/ NMFS is not
constraining agency action, it is strengthening it –
we are asking their help to devise reasonable T&Cs
to reduce impacts.
There are key findings to address in the DN/ROD:• The miner has rights (claim not in wilderness, etc or
otherwise a question of validity)
• Explain how you know he has rights – his claim filing
with BLM, for example
• Why you chose not to contest claim validity
• The plan is ―reasonable‖, that is why it had to be mitigated
and approved
• Why is it reasonable? …
• Describe in detail... the CMEs should help you here.
There is key rationale to address• Why you have no discretion to not approve
• Why you are limited to just terms and conditions
• This is a recap of what should be in chapter one
• Why you believe the mitigations applied are reasonable
• Just because a miner gives you a plan doesn‘t mean
you have to advance it to NEPA!
• It may not be reasonable – never advance an
unreasonable plan to NEPA!
• Don‘t use NEPA to identify a reasonable plan –
that‘s the miner‘s responsibility!
• It may not be the least impactful mining method
• Negotiate with the miners to get the least impactful
proposal that meets their purpose.
• Avoid NEPA that requires alternate mining methods
as fully-developed alternatives.
ONLY ADVANCE A REASONABLE PLAN INTO NEPA!!
Getting to a Reasonable Plan of Operations
• Educate the miners on what you are looking to accomplish with NEPA
• Work with them on getting to a reasonable plan
• Then work with them to develop a plan you can work with through
NEPA
• Ideally you want the miners to propose the least resource impacting
mining method that achieves their purpose
• Ideally you want a proposal that needs only mitigations for
minimizing disturbance. Not alternate mining methods. How to get
there:
• You and the miners share a goal… getting through this quickly
and efficiently
• Educate them on the time and challenges their plan options
might face.
• Let them advance to you the minimum method they need, and
discuss likely NEPA consequences.
• Good luck… they aren‘t always coachable.
The No Action Alternative is what the
miners proposed in their Plan, and
would implement if the Forest Service
took no discretionary action to apply
mitigating terms and conditions, but
simply fulfilled its ministerial duties
and approved the plan.
A No Mining Alternative can be discussed in Chapter
Two in the section on ‗Alts considered but not
advanced‘ with the following logic:
• While responsive to the purpose and need, it is not
appropriate for NEPA since USFS has no discretion.
• The result of no mining has no environmental
impacts to discuss… it is the same as the existing
condition, which is described in Chapter Three
already.
• Inclusion of such an alternative adds unnecessary
content that would not further inform the decision –
maker beyond what is already presented
• It is unlike fuels or forest health treatments where
No Action can allow adverse environmental effects.
Standardized planning meeting outlines
‗Proposed Action‘ possibilities for Scoping:
• You can scope the Agency‘s ―No Action‖
alternative as your Proposed Action, i.e. the
miners‘ Plan with No terms and Conditions,
…or
• An Agency Proposed Action Alternative which
would be the miners‘ Plan with your terms and
conditions attached.
In Scoping either way, you never have to justify
a mining action.
How you want issues to be stated by the public
in scoping:
For a scoped No Action Alternative:
―If ―X‖ isn‘t mitigated, ―this‖ bad thing will happen‖
For a scoped Action Alternative:
The Agency didn‘t propose to mitigate ―X‖ so bad
things will happen., or
The Agency‘s mitigation for ―X‖ doesn‘t go far
enough to protect ―Y‖.
Alternatives can be constructed around:• Alternative ways to mitigate for certain
resources,
• Alternative degrees of mitigating any one
resource
Your challenge here will be defining the limits of
what is defensibly ‗reasonable‘.
Remember the Clean Water Act and ESA – you
cannot approve something that violates these laws.
Consider objectives, rather than methods
Effects format document review
Summary
• We only do NEPA on a decision we have legal authority to make.
• For mining, that is not approval of a plan of Operations since
reasonable mining plan approval is a non-discretionary ministerial
action.
• Your decision space for NEPA is therefore limited to a choice of terms
and conditions to be applied to the miner‘s plan.
•Your ‗action‘ alternatives then are packages of terms and conditions
applied the Miner‘s Plan.
•Your ‗no action‘ alternative is the miner‘s plan with no terms and
conditions.
• The legal test for our decision is effectiveness and reasonableness,
and that can be to the point of affecting economic viability.
• NEPA is a straightforward process and can be managed if we choose
• NEPA can be focused and straightforward, with a cohesive P&N, PA,
and alternatives and thereby made more efficient and defensible
than we currently experience.