Clarification as to When a Notice of Intent To Operate and/or Plan of Operation Is Needed for Locatable Mineral Operations on National Forest System Lands, 32713-32732 [05-11138]

Agencies

• DEPARTMENT OF AGRICULTURE
• Forest Service

[Federal Register Volume 70, Number 107 (Monday, June 6, 2005)]
[Rules and Regulations]
[Pages 32713-32732]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-11138]


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DEPARTMENT OF AGRICULTURE

Forest Service

36 CFR Part 228

RIN 0596-AC17


Clarification as to When a Notice of Intent To Operate and/or 
Plan of Operation Is Needed for Locatable Mineral Operations on 
National Forest System Lands

AGENCY: Forest Service, USDA.

ACTION: Final rule.

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SUMMARY: This final rule amends the regulations governing the use of 
National Forest System lands in connection with operations authorized 
by the United States mining laws. The final rule clarifies the 
regulations at 36 CFR 228.4(a) concerning the requirements for mining 
operators to submit a ``notice of intent'' to operate and requirements 
to submit and obtain an approved ``plan of operations.'' Clarification 
of the requirements in Sec.  228.4(a) are necessary to minimize adverse 
environmental impacts to National Forest System lands and resources.

DATES: The final rule is effective July 6, 2005.

ADDRESSES: The documents used in developing this final rule are 
available for inspection and copying at the office of the Director, 
Minerals and Geology Management, Forest Service, USDA, 1601 N. Kent 
Street, 5th Floor, Arlington, VA 22209, during regular business hours 
(8:30 a.m. to 4:30 p.m.), Monday through Friday, except holidays. Those 
wishing to copy or inspect these documents are asked to call ahead 
(703) 605-4818 to facilitate access to the building.

FOR FURTHER INFORMATION CONTACT: Mike Doran, Minerals and Geology 
Management Staff, (703) 605-4818.

SUPPLEMENTARY INFORMATION: 

Background and Need for Final Rule

    For purposes of this final rule, all references to 36 CFR part 228, 
Subpart A, without qualifying terms ``interim rule'' or ``final rule,'' 
refer to language

[[Page 32714]]

in that subpart in effect prior to issuance of the interim rule (69 FR 
41428, Jul. 9, 2004).
    Since 1974, the Forest Service has applied the regulations now set 
forth at 36 CFR part 228, subpart A, to minimize adverse environmental 
impacts from mineral operations authorized by the United States mining 
laws by requiring mineral operators to file proposed plans of 
operations for mineral operations which the District Ranger determines 
will likely cause significant surface disturbance of National Forest 
System (NFS) lands. These regulated operations may include, but are not 
limited to, the construction of storage facilities, mills, and mill 
buildings; placement of trailers or other personal equipment; 
residential occupancy and use; storage of vehicles and equipment; 
excavation of holes, trenches, and pits by mechanized or non-mechanized 
procedures; diversion of water; use of sluice boxes and portable 
devices for separating gold from sediments; off highway vehicle use; 
road and bridge construction; handling and disposal of mine and other 
wastes; and signing and fencing to restrict public use of NFS lands 
affected by mining operations. The Forest Service and the courts had 
consistently required locatable mineral operators to obtain approval of 
a plan of operations whenever such operations would likely cause a 
significant surface disturbance, whether or not those operations 
involve mechanized earth moving equipment or the cutting of trees.
    However, two years ago, a District Court departed from this 
consistent interpretation and ruled that 36 CFR 228.4(a)(2)(iii) 
allowed a mining operation to occur on NFS lands without prior 
notification to the Forest Service or prior Forest Service approval of 
a plan of operations when the operation did not involve mechanized 
earthmoving equipment, such as bulldozers or backhoes, or the cutting 
of trees, irrespective of the surface disturbing impacts that the 
operation would likely cause. This unprecedented ruling severely 
restricted the ability of the Forest Service to regulate miners engaged 
in surface disturbing operations not involving mechanized earth moving 
equipment or the cutting of trees, but have serious environmental 
impacts, including impacts to water quality, visual quality, natural 
features, fisheries, and species listed under the Endangered Species 
Act, as well as conflicts with other NFS users.
    To prevent confusion as to the proper interpretation of 36 CFR 
228.4(a), the Forest Service published an interim rule in the Federal 
Register on July 9, 2004 (69 FR 41428), which took effect on August 9, 
2004. The interim rule sought to clarify that the requirement to file a 
notice of intent to operate with the District Ranger is mandatory in 
any situation in which a mining operation might cause disturbance of 
surface resources, regardless of whether that operation would involve 
the use of mechanized earth moving equipment, such as a bulldozer or 
backhoe, or the cutting of trees. The interim rule also sought to 
eliminate possible confusion by more specifically addressing the issue 
of what level of operation requires prior submission of a notice of 
intent to operate and what level of operation requires prior submission 
and approval of a plan of operations. The interim rule directs a mining 
operator to submit a notice of intent to operate when the proposed 
operation might cause a disturbance of surface resources. After a 
notice of intent to operate is submitted, the District Ranger would 
determine whether the proposed operations would likely cause a 
significant disturbance of surface resources. If the District Ranger 
determines that the proposed operations would likely cause a 
significant disturbance of surface resources, the District Ranger would 
notify the operator that prior submission and approval of a plan of 
operations is required before the operations commence.
    The opportunity for public comment was not legally required to 
promulgate the interim rule. Nonetheless, the Forest Service provided a 
60-day comment period and stated that comments received on the interim 
rule would be considered in adopting a final rule. The Department has 
considered those comments and has modified several provisions of the 
interim rule in this final rule.

Analysis of Public Comment

Overview

    The Forest Service received 2,373 responses to the interim rule (69 
FR 41428), including fifteen responses which said they were responding 
to the interim rule, but in actuality were nonresponsive and dealt with 
different issues, such as timber harvesting and investment 
opportunities. The total number also includes three challenges to the 
interim rule: (1) A notice of appeal of the interim rule, (2) a 
petition seeking the repeal of the interim rule pursuant to rule making 
requirements that give an interested person the right to petition 
repeal of the rule at 5 U.S.C. 553(e), and (3) a lawsuit seeking to 
enjoin the interim rule. The three challenges to the interim rule were 
disposed of separately and consequently were not independently 
considered in the development of the final rule. However, every issue 
raised in the three challenges to the interim rule also was raised in 
one or more of the comments submitted on the interim rule. Also 
included in the total number were several responses received after the 
comment period ended.
    There were 2,230 comments in favor of the interim rule. Most were 
an identical one-page email supporting the provisions in the interim 
rule, namely the long-standing requirement that miners either notify 
the Forest Service or obtain Forest Service approval before conducting 
proposed mining operations. Several industry organizations submitted 
detailed comments which expressed general support for the interim rule, 
but suggested specific revisions of the rule's text to make its 
requirements clearer. Other letters of support came from State 
regulatory agencies, environmental groups, and the United States 
Environmental Protection Agency.
    Most of the 125 comments in opposition to the interim rule were 
submitted by individuals, many of whom identified themselves as miners 
or prospectors engaging in small scale mining operations.
    All comments submitted on the interim rule and the administrative 
record are available for review in the Office of the Director, Minerals 
and Geology Management Staff, 1610 N. Kent St., 5th Floor, Arlington, 
Virginia, 22209, during regular business hours (8 a.m. to 5 p.m.), 
Monday through Friday, except Federal holidays. Those wishing to view 
the comments and the administrative record should call in advance to 
arrange access to the building (see FOR FURTHER INFORMATION CONTACT).

Response to Comments

1. Comments on the Validity of the Interim Rule's Promulgation
    Comment: Many respondents stated that the Forest Service cannot 
adopt a rule altering the interpretation of Sec.  228.4(a), a portion 
of the rule promulgated in 1974, and adopted in United States v. Lex, 
300 F. Supp. 2d 951 (E.D. Cal. 2003).
    Response: Nothing in Lex could, or purports to, restrict the Forest 
Service's clear authority to promulgate rules regulating the effects of 
locatable mineral resources on NFS lands. Indeed, the court in Lex, 
after noting that it was ``not unsympathetic to the problem posed by 
the [former 36 CFR 228.4(a)] in this case,'' specifically stated that 
``[t]he solution to this problem* * * is

[[Page 32715]]

to amend the regulations * * *'' United States v. Lex, 300 F. Supp. 2d 
951, 962 n.10 (E.D. Cal. 2003). Thus, the contention that Lex somehow 
precludes the Forest Service from adopting the precise solution which 
the decision identified is untenable.
    Comment: Four respondents said that the interim rule is a 
substantive rule which substantially, and improperly, changes 
exemptions to plan of operations and notice of intent to operate 
requirements previously applied to small scale mining operations. These 
comments appear to involve the application of the Administrative 
Procedure Act (APA) to the promulgation of the interim rule.
    Response: These comments are predicated upon the interpretation of 
Sec.  228.4(a) adopted in United States v. Lex, 300 F. Supp. 2d 951 
(E.D. Cal. 2003). As the preamble to the interim rule notes, the 
departure from the long-standing interpretation of Sec.  228.4(a) is 
not the interim rule, but Lex itself. The technical amendments to Sec.  
228.4(a) set forth in the interim rule simply reinforce the long-
standing interpretation of that provision held by the Forest Service 
and previous reviewing courts that a locatable mineral operator may be 
required to submit a notice of intent to operate or to submit and 
obtain approval of a proposed plan of operations whether or not the 
proposed operations would involve the cutting of trees or the use of 
mechanized earth moving equipment, as do the amendments set forth in 
the final rule. Similarly, the technical amendments to Sec.  228.4(a) 
in the interim rule simply reinforce the long-standing interpretation 
of that provision held by the Forest Service and previous reviewing 
courts that a locatable mineral operator is required to obtain approval 
of a proposed plan of operations whenever the operator or the 
applicable District Ranger determines that the proposed operations will 
likely result in significant disturbance of NFS lands and resources, 
irrespective of whether the operator first was required to submit a 
notice of intent to operate, as do the amendments set forth in the 
final rule.
    Moreover, even if the changes to Sec.  228.4(a) adopted in the 
interim rule were not technical amendments to that provision, the 
interim rule was proper under the APA given that the Department found 
for good cause that prior notice and public comment on the rule was 
``impracticable, unnecessary, or contrary to the public interest'' (5 
U.S.C. 553(b)(3)(B)).
    Comment: A number of respondents stated that the Forest Service 
violated the public participation requirements of the Forest and 
Rangeland Renewable Resources Planning Act (RPA) (16 U.S.C. 1612(a)) by 
not giving the public notice and an opportunity to comment before 
adopting the interim rule.
    Response: The public participation provisions of 16 U.S.C. 1612(a) 
do not mandate prior notice and an opportunity to comment before the 
Forest Service adopts a rule in every case. Rather, it requires the 
Forest Service to give ``adequate'' notice and an opportunity to 
comment. The Forest Service provided the public adequate notice and 
opportunity to comment in connection with the technical amendment of 
Sec.  228.4(a) in the interim rule by providing for a public comment 
period on the interim rule and considering those comments in adopting 
the final rule.
    Comment: Several respondents commented that the public 
participation requirements of RPA makes the exceptions of APA's rule 
making requirements at 5 U.S.C. 553(b)(3) and 553(d) inapplicable to 
the interim rule.
    Response: The exceptions to the APA's requirements for prior notice 
and opportunity for public comment on the adoption of rules and for a 
delay in the effective date of certain rules are not overridden by the 
public participation requirements of RPA. That provision clearly did 
not specifically repeal or be construed as an implicit repeal of the 
rule making requirements at 5 U.S.C. 553(b)(3)(A)-(B) or 553(d)(1)-(3).
    `` `It is, of course, a cardinal principle of statutory 
construction that repeals by implication are not favored.' '' 
Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976) (citation 
omitted). Indeed, an implied partial repeal will not be recognized 
unless there is an irreconcilable conflict between the two statutes at 
issue or the later statute covers the whole subject of the earlier one 
and is clearly intended as a substitute. `` `But, in either case, the 
intention of the legislature to repeal must be clear and manifest * * 
*' '' (alteration in original) (citation omitted). Moreover, `` 
`[r]epeal is to be regarded as implied only if necessary to make the 
[later enacted law] work, and even then only to the minimum extent 
necessary.' '' at 155 (alteration in original) (citation omitted).
    In adopting the public participation requirements of RPA, Congress' 
intention to repeal APA's exceptions at 5 U.S.C. 553(b)(3)(A)-(B) and 
553(d)(1)-(3), insofar as Forest Service rules are concerned, certainly 
is not manifest. Furthermore, it is not necessary to read 16 U.S.C. 
1612(a) as repealing the exceptions set forth at 5 U.S.C. 553(b)(3)(A)-
(B) to the APA's requirement for prior notice and opportunity for 
public comment on the adoption of rules in E.O. to make 16 U.S.C. 
1612(a) work, even assuming that 16 U.S.C. 1612(a) is applicable to the 
adoption of the interim rule. Adequate notice and opportunity to 
comment for purposes of 16 U.S.C. 1612(a) can be provided by accepting 
public comments on an interim rule which are considered in the adoption 
of the final rule, as is being done in the context of the revision of 
Sec.  228.4(a). Nor is it necessary to read 16 U.S.C. 1612(a) as 
repealing the exceptions set forth at 5 U.S.C. 553(d)(1)-(3) to the 
APA's requirements for a delay in the effective date of certain rules 
in E.O. to make 16 U.S.C. 1612(a) work, even assuming that 16 U.S.C. 
1612(a) is applicable to the adoption of the interim rule. Agencies can 
delay the effective dates of rules, as was done in the context of the 
interim rule.
    Comment: Several respondents said that the interim rule's violation 
of the public participation requirements of RPA (16 U.S.C. 1612(a)) 
also constitutes a violation of the Congressional Review Requirements 
at 5 U.S.C. 801(a)(1)(B)(iii) and (iv).
    Response: Given that the Forest Service did not violate the public 
participation requirements of RPA in promulgating the interim rule for 
the reasons previously discussed, there is no cumulative violation of 
the Congressional review requirements as suggested by the respondents.
    Comment: Five respondents commented that the Forest Service 
violated the Regulatory Flexibility Act by failing to prepare and make 
available for public comment both an initial and a final regulatory 
flexibility analysis on the rule and failed to list the interim rule on 
its regulatory flexibility agenda. Additionally, those respondents 
stated that these violations of the Regulatory Flexibility Act also 
constitutes a violation of the Congressional review requirements at 5 
U.S.C. 801(a)(1)(B)(iii) and (iv).
    Response: The obligation to prepare and make available for public 
comment an initial regulatory flexibility analysis is triggered 
``[w]henever an agency is required by section 553 of this title, or any 
other law, to publish general notice of proposed rulemaking for any 
proposed rule * * *'' (5 U.S.C. 603(a)). As previously discussed, the 
interim rule made technical, rather than substantive, changes to Sec.  
228.4(a). Under the APA, a rulemaking which does not constitute a 
substantive rule is exempted from the notice and comment requirements 
of the Act by 5 U.S.C.

[[Page 32716]]

553(b)(3)(A) (Animal Legal Defense Fund v. Quigg, 932 F.2d 920, 927 
(Fed. Cir. 1991)). Further, even if the changes which the interim rule 
made to Sec.  228.4(a) were properly viewed as substantive changes to 
that provision, the APA still would not have required general notice of 
proposed rulemaking for the promulgation of the interim rule because 
the Department, for good cause, found that notice and public procedure 
on the interim rule was impracticable and contrary to the public 
interest pursuant to another of the Act's exception at 5 U.S.C. 
553(b)(3)(B). Moreover, no other law required a general notice of 
proposed rulemaking for the interim rule. Consequently, the Forest 
Service was not under an obligation to prepare and make available for 
public comment an initial regulatory flexibility analysis for the 
interim rule because general notice of proposed rulemaking was not 
required for the promulgation of that rule.
    The obligation to prepare a final regulatory flexibility analysis 
is triggered ``[w]hen an agency promulgates a final rule under section 
553 of this title, after being required by that section or any other 
law to publish a general notice of proposed rulemaking * * *.'' 5 
U.S.C. 604(a). The interim rule is not a final rule. As the interim 
rule explained, ``[c]omments received on this interim rule will be 
considered in adoption of a final rule, notice of which will be 
published in the Federal Register. The final rule will include a 
response to comments received and identify any revisions made to the 
rule as a result of the comments'' (69 FR 41428, July 9, 2004).
    Any failure to list the interim rule on the Forest Service's 
regulatory flexibility agenda prior to the rule's adoption does not 
constitute a violation of the Regulatory Flexibility Act which 
specifically provides that ``[n]othing in this section precludes an 
agency from considering or acting on any matter not included in a 
regulatory flexibility agenda * * *.'' 5 U.S.C. 602(d).
    Given that the Forest Service did not violate the Regulatory 
Flexibility Act in promulgating the interim rule, there is no 
cumulative violation of the Congressional review requirements as 
suggested by the respondents.
    Comment: Several respondents stated that the interim rule is a 
major rule for purposes of the Regulatory Flexibility Act, 5 U.S.C. 
801-808.
    Response: On March 15, 2004, the Administrator of the Office of 
Information and Regulatory Affairs of the Office of Management and 
Budget (OMB) found that the interim rule proposed for Sec.  228.4(a) 
was not a major rule for purposes of 5 U.S.C. 801-808.
    Comment: Three respondents said that the Forest Service violated 
the Congressional review requirements of the Regulatory Flexibility Act 
by failing to submit required reports on the rule to each House of 
Congress and the Comptroller General.
    Response: The Forest Service did comply with this requirement. On 
July 19, 2004, the Forest Service submitted a Congressional Rulemaking 
Report to the House of Representatives (Congressman Hastert), the 
Senate (Vice President Cheney), and the General Accounting Office 
(Comptroller General Walker), containing the provision of the interim 
rule and therefore meeting the Congressional rulemaking reporting 
requirements in the Act.
    Comment: Two respondents commented that the Forest Service violated 
the Unfunded Mandates Reform Act by failing to prepare a required 
written statement, failing to seek input from elected officers of 
State, local and tribal governments, and failing to consider regulatory 
alternatives to the rule. Those respondents further stated that these 
violations of the Act also constitute violations of the Congressional 
review requirements.
    Response: The obligation to prepare the written statement required 
by the Unfunded Mandates Reform Act (act) (2 U.S.C. 1532) is triggered 
by the intention to publish certain ``general notice[s] of proposed 
rulemaking'' or ``any final rule for which a general notice of proposed 
rulemaking was published.'' As previously discussed, the interim rule 
is neither a general notice of proposed rulemaking or a final rule. 
Therefore, the Forest Service was not under an obligation to prepare a 
statement pursuant to the act in promulgating the interim rule.
    The obligation to seek input from elected officers of State, local, 
and tribal governments as required by the act at Sec.  1532 is 
triggered by ``the development of regulatory proposals containing 
significant Federal intergovernmental mandates.'' 2 U.S.C. 1534(a). For 
purposes of this act at Sec.  15342, the term ``Federal 
intergovernmental mandate'' means:

    (A) any provision in legislation, statute, or regulation that--
    (i) would impose [certain] enforceable dut[ies] upon State, 
local, or tribal governments * * *; or
    (ii) would reduce or eliminate the amount of [certain] 
authorization[s] of appropriations * * *; [or]
    (B)[certain] provision[s] in legislation, statute, or regulation 
that relate[] to a then-existing Federal program under which 
$500,000,000 or more is provided annually to State, local, and 
tribal governments under entitlement authority * * *. 2 U.S.C. 
658(5), 1502(1).

    Nothing in the interim rule imposes enforceable duties upon State, 
local, or tribal governments, reduces or eliminates appropriations, or 
relates to an existing program under which money is provided annually 
to State, local, or tribal governments. Consequently, the Forest 
Service was not under an obligation to seek input from elected officers 
of State, local, and tribal governments pursuant to this act in 
promulgating the interim rule.
    Compliance with the requirements of Sec.  1535 of this act 
concerning consideration of regulatory alternatives to a rule is 
mandated ``before promulgating any rule for which a written statement 
is required under section 1532 of this title * * *'' (2 U.S.C. 
1535(a)). For the reasons previously stated, the Forest Service was not 
under an obligation to prepare a statement pursuant to Sec.  1532 of 
the act in promulgating the interim rule.
    Given that the Forest Service did not violate the Unfunded Mandates 
Reform Act in promulgating the interim rule, there is no cumulative 
violation of the Congressional review requirements.
    Comment: Two respondents said that the Forest Service violated the 
Paperwork Reduction Act by failing to have a control number for the 
collection of information in paragraph 228.4(a) of the interim rule.
    Response: The OMB control number for Sec.  228.4 is 0596-0022 and 
was current upon adoption of the interim rule and is approved through 
July 31, 2005. While the interim rule amended the language of Sec.  
228.4(a), the amended language was a clarification which did not alter 
the meaning of that provision and did not change the scope of 
information or number of burden hours associated with this collection 
number. Therefore, the Forest Service did not need to obtain another 
control number or modify control number 0596-0022 prior to the adoption 
of the interim rule. Nothing in the Paperwork Reduction Act renders the 
interim rule or the final rule unenforceable.
    Comment: Two respondents commented that the Forest Service violated 
the Endangered Species Act (ESA) by failing to engage in formal 
consultation with the Department of the Interior before publishing the 
rule. Those respondents further said that the violation of the ESA also 
constitutes a violation of Congressional review requirements.
    Response: The assertion that formal consultation was required for 
the

[[Page 32717]]

promulgation of the interim rule is predicated upon a conclusion that 
the purpose of the interim rule was to prevent undue degradation 
coupled with an assumption that the undue degradation of concern 
involved threatened and endangered species. However, the purpose of the 
interim rule is not the prevention of undue degradation as is made 
evident by the rule's preamble. Indeed, the term ``undue degradation'' 
is not employed in either the text of the interim rule or its preamble.
    Moreover, the interim rule itself has no impact on any threatened 
or endangered specie or the habitat of a threatened or endangered 
specie. Rather, in the context of 36 CFR part 228, subpart A, the 
action which the Forest Service takes which might have such an effect 
is approving a proposed plan of operations. The ESA consequently 
imposes no obligation upon the Forest Service to engage in formal 
consultation before the agency receives a proposed plan of operations 
from a miner.
    Given that the Forest Service did not violate the ESA in 
promulgating the interim rule, there is no cumulative violation of 
Congressional review requirements.
    Comment: Several respondents said that the Forest Service violated 
the National Environmental Policy Act (NEPA) by failing to prepare an 
environmental impact statement (EIS).
    Response: The respondents' assertion that an EIS was required for 
the promulgation of the interim rule is solely predicated upon the 
conclusion that the rule's promulgation was a major Federal action 
which, under NEPA, requires the preparation of an EIS. However, NEPA 
requires the preparation of an EIS only for those major Federal actions 
significantly affecting the quality of the human environment (42 U.S.C. 
4332(2)(C)) and does not require an EIS for a major action which does 
not have a significant impact on the environment. Sierra Club v. 
Hassell, 636 F.2d 1095, 1097 (5th Cir. 1981); Cf. Marsh v. Oregon 
Natural Resources Council, 490 U.S. 360, 374 (1989).
    The respondents do not identify or describe the significant 
environmental impacts which they believe resulted from promulgation of 
the interim rule. In fact, the interim rule has no impact on the human 
environment. For these reasons, NEPA did not require the preparation of 
an EIS prior to the promulgation of the interim rule.
    Comment: Several respondents said that the Forest Service violated 
NEPA by failing to prepare both an environmental assessment (EA) and an 
EIS.
    Response: The respondents did not explain the reasons for their 
conclusion that the interim rule should have been deemed a proposal for 
major Federal action significantly affecting the quality of the human 
environment such that an EIS should have been prepared in connection 
with the promulgation of the rule. Nor did the respondents explain why 
they concluded that an EA should have been prepared in connection with 
the promulgation of the interim rule. However, the comments do seem to 
imply that the interim rule should not have been categorically excluded 
from documentation in an EIS or an EA because extraordinary 
circumstances listed in Forest Service Handbook (FSH) 1905.15, section 
30.3, paragraphs 1 & 2 are present. The comments also appear to suggest 
that an EA must always be prepared prior to the preparation of an EIS.
    The assumption that an EA always must be prepared prior to an EIS 
clearly is incorrect, because an EA is not necessary if the agency has 
decided to prepare an EIS (40 CFR 1501.3(a)).
    The Department has not independently identified a reason to 
conclude that the interim rule was inappropriately categorically 
excluded from documentation in an EIS or an EA. The interim rule 
squarely fits within the Forest Service's categorical exclusion for 
``[r]ules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instructions.'' (FSH 
1909.15, sec. 31.1b, para 2).
    Even if an action falls within a category of proposed actions 
normally excluded from further analysis and documentation in an EIS or 
an EA, the presence of certain resource conditions, such as wilderness 
or flood plains, specified in the Forest Service's NEPA procedures may, 
in some cases, constitute extraordinary circumstances warranting such 
analysis and documentation. Nonetheless, the mere existence of such 
resource conditions is not determinative in deciding whether it is 
proper to categorically exclude an action from documentation in an EIS 
or an EA. The Forest Service's NEPA procedures specifically provide 
that ``[t]he mere presence of one or more of these resource conditions 
does not preclude use of a categorical exclusion. It is the degree of 
the potential effect of a proposed action on these resource conditions 
that determines whether extraordinary circumstances exist.''
    Although the interim rule will govern locatable mineral operations 
which might affect the resource conditions listed in FSH 1909.15, 
section 31.1b, paragraph 2, the distinction quoted in the previous 
paragraph is crucial because the interim rule itself has no impact on 
the human environment, including the specified resource conditions. For 
these reasons, NEPA did not require the preparation of both an EA and 
an EIS prior to the promulgation of the interim rule.
    Comment: A number of respondents stated that the Forest Service 
violated NEPA by failing to consider all reasonable alternatives to the 
rule.
    Response: NEPA only requires consideration of alternatives to 
``proposals for * * * major Federal actions significantly affecting the 
quality of the human environment'' (42 U.S.C. 4332(2)(C)(iii)). As 
previously discussed, the promulgation of the interim rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment.
    Additionally, the interim rule does not involve unresolved 
conflicts concerning the alternative uses of available resources. Both 
the original and revised (interim rule) Sec.  228.4(a) provide for the 
development of locatable mineral resources upon the completion of 
certain procedural requirements. Consequently, the promulgation of the 
interim rule was not a ``proposal which involves unresolved conflicts 
concerning alternative uses of available resources'' requiring the 
consideration of alternatives.
    For these reasons, NEPA did not require the Forest Service to 
consider all reasonable alternatives to the interim rule.
    Comment: A number of respondents commented that the Forest Service 
violated NEPA by failing to consider and disclose the direct, indirect, 
and cumulative effects of the interim rule and its reasonable 
alternatives. These respondents also faulted the Forest Service for 
failing to consider the cumulative adverse socio-economic impacts of 
the interim rule in connection with other Federal regulatory actions.
    Response: The respondents did not identify or describe the direct, 
indirect, or cumulative impacts which they believe resulted from 
promulgation of the interim rule which the Forest failed to consider or 
assess. The respondents also neglected to identify the other Federal 
regulatory actions finalized and proposed in recent years, which work 
to increase the cumulative cost of the interim rule, while also 
diminishing marginal environmental benefit.
    As previously discussed, the Department has not independently 
identified an impact on the environment

[[Page 32718]]

which would result from the promulgation of the interim rule, nor was 
the consideration of reasonable alternatives required given that the 
interim rule was properly categorically excluded from documentation in 
an EIS or an EA (40 CFR 1508.4).
    The Department also disagrees with the respondents' statements that 
there have been other Federal regulatory actions proposed or finalized 
in recent years which would have, or have, had any impact on locatable 
mineral operations proposed or occurring on NFS lands. The rules 
governing these operations at 36 CFR part 228, subpart A, have not been 
substantively changed since their promulgation in 1974. Nor has a rule 
contemplating such a change been proposed.
    For these reasons, NEPA did not require the consideration and 
disclosure of the direct, indirect, and cumulative effects of the 
interim rule and its reasonable alternatives.
    Comment: Several respondents stated the Forest Service violated 
NEPA by failing to use reliable methodology.
    Response: The respondents did not explain why they believe that the 
Forest Service used unreliable methodology in promulgating the interim 
rule. In fact, the totality of the respondents' description of this 
issue consists of the statement that ``[t]he Interim Rule fails to use 
reliable methodology in violation of NEPA and its implementing 
regulations.''
    The Department's review of the interim rule identified no instance 
where unreliable methodology was used in the rule's promulgation.
    Comment: Several respondents said that the Forest Service violated 
NEPA by failing to conduct scoping on the rule.
    Response: The Council on Environmental Quality regulations 
implementing NEPA only require scoping where an agency is preparing an 
EIS (40 CFR 1501.4(d)). As previously discussed, NEPA did not require 
the preparation of an EIS prior to the promulgation of the interim 
rule. Accordingly, NEPA did not require scoping prior to the 
promulgation of the interim rule.
    Comment: Two respondents said that the Forest Service violated 40 
CFR part 25 by failing to meet the requirements for public 
participation set forth in that part. Those respondents also stated 
that the Forest Service's violation of the public participation 
requirement at 40 CFR part 25 also constitutes a violation of 
Congressional review requirements.
    Response: The regulations at 40 CFR part 25 govern ``public 
participation in operations under the Clean Water Act (Pub. L. 95-217), 
the Resource Conservation and Recovery Act (Pub. L. 94-580), and the 
Safe Drinking Water Act (Pub. L. 93-523).'' The Forest Service's 
regulation of the impacts of locatable mineral operations on NFS 
resources is not an activity undertaken pursuant to any of these acts. 
Rather, the interim rule was adopted pursuant to authority conferred 
upon the Forest Service by portions of the Organic Administration Act 
(16 U.S.C. 478, 551). Consequently, 40 CFR part 25 is inapplicable to 
the adoption of the interim rule.
    Given that the Forest Service did not violate 40 CFR part 25 in 
promulgating the interim rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: Two respondents stated that the interim rule is 
inconsistent with Executive Order (E.O.) 13132 because it would permit 
the Forest Service to regulate locatable mineral operations which take 
place in waters which the respondents believe is committed to States, 
not the Federal government. More specifically, those respondents said 
that the Forest Service, in promulgating the interim rule, violated the 
E.O. by failing to make a required disclosure as to the effect of the 
rule upon principles of Federalism. Those respondents also commented 
that the Forest Service violated the E.O. by failing to consult with 
affected State and local officials and that a violation of the E.O. 
also constitutes a violation of the Congressional reporting 
requirements.
    Response: For purposes of 36 CFR part 228, subpart A, there can be 
no doubt that the Forest Service's authority to regulate the 
disturbance of NFS surface resources resulting from locatable mineral 
operations generally encompasses the effects of those operations on 
water, streambeds, or other submerged lands. Section 228.8 
characterizes fisheries habitat as a ``National Forest surface 
resource'' and requires rehabilitation of fisheries habitat. Fisheries 
habitat, of course, can consist of nothing other than water, 
streambeds, or other submerged lands. Only where adjudication has 
established that watercourses were navigable at the time that a State 
was admitted to the Union are those resources solely subject to State 
regulation. Thus, the Forest Service has clear authority to regulate 
the effects which locatable mineral operations have on water, 
streambeds, or other submerged lands, whether or not those operations 
are taking place in waters themselves, except where adjudication has 
established that watercourses were navigable at the time that a State 
was admitted to the Union.
    The disclosures and consultations required by E.O. 13132 only apply 
to those policies which have Federalism implications which by 
definition are those ``regulations * * * that have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' (Sec. 1(a)). 
Nothing in the interim rule restricts State or local government's 
current regulatory powers over locatable mineral operations which take 
place in waters. Thus, as explained in the interim rule's preamble, 
that rule ``would not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government'' (69 FR 41428-41430). Consequently, the Forest Service 
was not required to make the disclosures or undertake the consultation 
referenced in these comments.
    Given that the Forest Service did not violate E.O. 13132 in 
promulgating the interim rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: Two respondents commented that the Forest Service violated 
E.O. 12630 by failing to disclose the potential impact of the rule on 
property rights. Those respondents further commented that this 
violation of the E.O. also constitutes a violation of 5 U.S.C. 
801(a)(1)(B)(iii) and (iv).
    Response: In their discussions of E.O. 12630, the respondents do 
not specifically identify or describe the impact of the interim rule 
which they believe would constitute a regulatory taking of mining 
claimants' property rights. Rather, the respondents simply state that 
``[a]s was established above, the Interim Rule would affect a 
regulatory taking of all [mining claims].'' However, the respondents' 
only other reference to a regulatory taking appears in their discussion 
of the impact of requiring a bond from miners for small scale mining 
operations.
    The interim rule does not address, or purport to address, bonding 
of locatable mineral operations. Moreover, it is well established that 
a rule such as the interim rule, which in certain circumstances 
requires a miner to obtain approval before conducting locatable mineral 
operations, does not deprive the miner of any property right conferred 
by a mining claim. Freese v. United States, 6 Cl. Ct. 1, 14-16 (1984), 
aff'd mem., 770

[[Page 32719]]

F.2d 177 (Fed. Cir. 1985); Trustees for Alaska v. Environmental 
Protection Agency, 749 F.2d 549, 559-60 (9th Cir. 1984); cf. Clouser v. 
Espy, 42 F.3d 1522, 1530 (9th Cir. 1994), cert. denied sub nom. Clouser 
v. Glickman, 515 U.S. 1141 (1995). Therefore, the Department properly 
found that an analysis of the interim rule conducted pursuant to E.O. 
12630 properly ``determined that the interim rule does not pose the 
risk of a taking of private property'' (69 FR 41430, Jul. 9, 2004).
    For these reasons, the Forest Service did not violate E.O. 12630 in 
promulgating the interim rule. Given that, there is no cumulative 
violation of Congressional reporting requirements.
    Comment: Two respondents said that the Forest Service, in 
promulgating the interim rule, violated E.O. 12866 by failing to make a 
required disclosure as to the effect of the rule on the Federal budget. 
Those respondents further stated that this violation of the E.O. also 
constitutes a violation of Congressional reporting requirements.
    Response: The respondents did not cite the applicable provision of 
E.O. 12866 which they believe requires ``disclosures concerning whether 
the interim rule represents a government action that would 
significantly effect the Federal budget'' and the E.O. does not use the 
term ``Federal budget'' or any obvious synonym. The only provision in 
the E.O. to which the respondents might be referring appears to be Sec. 
6(a)(3)(C)(ii) which requires ``an assessment * * * of costs 
anticipated from the regulatory action (such as, but not limited to, 
the direst cost * * * to the government in administering the regulation 
* * *).'' However, such an assessment only is required ``for those 
matters identified as, or determined by the Administrator of OIRA to 
be, a significant regulatory action * * *.'' Sec. 6(a)(3)(C).
    On March 15, 2004, the Administrator of the Office of Information 
and Regulatory Affairs of the OMB found that the interim rule proposed 
for 36 CFR 228.4(a) was non-significant for purposes of E.O. 12866. 
Thus, the assessment mandated by Sec. 6(a)(3)(C)(ii) of the E.O. was 
not required for the interim rule.
    Given that the Forest Service did not violate E.O. 12866 in 
promulgating the interim rule, there is no cumulative violation of 
Congressional reporting requirements.
    Comment: Two respondents commented that the Forest Service failed 
to solicit comment on the interim rule from western governors which 
violates the spirit of the 1998 Department of the Interior and Related 
Agencies Appropriations Act, Pub. L. 105-83, Sec.  339, 111 Stat. 1543, 
1602 (1997).
    Response: The cited provision of the 1998 Department of the 
Interior and Related Agencies Appropriations Act required the Bureau of 
Land Management (BLM), Department of the Interior, to consult with the 
governors from each Western State containing public lands open to 
location under the United States mining laws before adopting a rule to 
amend or replace 43 CFR part 3800, subpart 3809. These regulations are 
the Department of the Interior's counterpart to 36 CFR part 228, 
subpart A. The Department's promulgation of the interim rule did not 
violate this provision because the provision, by its own terms, is not 
applicable to 36 CFR part 228, subpart A.
    Prior to the enactment of the 1998 Department of the Interior and 
Related Agencies Appropriations Act, the Department of the Interior had 
announced its intent to prepare an EIS for the proposed revision of 43 
CFR part 3800, subpart 3809 (62 FR 16177). That notice described the 
scope of the contemplated revisions to 43 CFR part 3800, subpart 3809, 
as ``comprehensive.'' In contrast, the scope of the interim rule at 
Sec.  228.4(a) is limited and only concerns the form of authorization 
required for conducting locatable mineral operations on National Forest 
System lands.
    Given the vastly different scopes of the Department of the 
Interior's 1997 proposal to a ``comprehensive'' revision of their 
regulations and the clarification of Sec.  228.4(a) provided for in the 
Department's interim rule, there is no reason to presume that Congress 
would have intended that consultation, such as it required for the 
comprehensive revision of 43 CFR part 3800, subpart 3809, be performed 
for the promulgation of the interim rule. Therefore, the promulgation 
of the interim rule is not in any manner inconsistent with the 
``spirit'' of Sec. 339 of the 1998 Department of the Interior and 
Related Agencies Appropriations Act.
    Comment: Two respondents stated that the Small Business 
Administration (SBA) would find that the interim rule will have a major 
impact on small entities given the SBA's finding that a purportedly 
similar rule, 43 CFR part 3800, subpart 3809, would have a major impact 
on small entities.
    Response: As discussed in the response to the previous comment, the 
scope of the interim rule, which only concerns the form of 
authorization required for conducting locatable mineral operations on 
NFS lands, is dramatically less sweeping than the scope the proposed 
changes to 43 CFR part 3800, subpart 3809. While 43 CFR part 3800, 
subpart 3809, addresses a similar issue for lands administered by the 
BLM, it additionally sets forth a host of other requirements. 
Therefore, any finding which the SBA made on the effect of 43 CFR part 
3800, subpart 3809, on small entities consequently has exceedingly 
limited predictive value in terms of the SBA's possible assessment of 
the impact of the Forest Service's interim rule.
    Comment: Many respondents noted that the Forest Service improperly 
invoked an emergency as the grounds for implementing the interim rule 
before receiving and responding to public comment.
    Response: The Forest Service did not rely upon the existence of an 
emergency in adopting the interim rule. Neither the text of the interim 
rule nor its preamble employ the term ``emergency'' or any of its 
synonyms. The Forest Service consequently did not need to meet the test 
advocated by the respondents to assess the existence of an emergency 
prior to adopting and implementing the interim rule. Moreover, even if 
such terminology had been used, the legal standards governing the 
adoption of rules are set forth in the Administrative Procedure Act, 5 
U.S.C. 553. The preamble to the interim rule explains the Department of 
Agriculture's compliance with that Act's standards in promulgating the 
interim rule.
2. Comments on the Effect of the Interim Rule

General Issues

    Comment: Numerous respondents stated that the changes to 36 CFR 
228.4(a) adopted by the interim rule have confused miners and are 
capable of being misapplied.
    Response: Given these comments and other specific comments made on 
individual paragraphs of the interim rule, the Department agrees that 
changes are required to make the text of the interim rule clearer to 
foster the consistency of its application by Forest Service employees. 
These changes generally are described in the following subsection 
entitled ``Comments on Specific Sections of the Interim Rule,'' of this 
section of the Response to Comments. In addition, the final rule also 
reorganizes the text of the interim rule so that its sequence is more 
logical and reflects an increasing level of Forest Service 
consideration of the environmental impacts of locatable mining 
operations on NFS resources. As reorganized by the final rule, Sec.  
228.4(a)

[[Page 32720]]

will describe in sequence when an operator is required to submit a 
notice of intent to operate before commencing operations, what 
operations are exempt from the requirement for prior submission of a 
notice of intent to operate, when an operator is required to submit and 
obtain approval of a proposed plan of operations before commencing 
operations, what operations are exempt from the requirement for prior 
submission and approval of a proposed plan of operations, and a 
District Ranger's authority to require submission and approval of a 
proposed plan of operations before an operator commences proposed 
operations or continues ongoing operations. This reorganization 
parallels the typical progression of mining operations from the least 
functions, work, or activities for prospecting or casual use, which 
would not normally require prior submission and approval of a plan or 
operations, through exploration, which often would require prior 
submission of a notice of intent to operate, and might require prior 
submission and approval of a plan of operations, to development and 
production, which normally would require prior submission and approval 
of a plan of operations. These changes should enhance the final rule's 
clarity and comprehensibility.
    Comment: Numerous respondents said that the interim rule unfairly 
restricts entities or persons, whom the respondents characterized as 
mining clubs, recreational miners, hobby miners, and recreational 
suction dredgers. Some of the respondents also commented that the 
interim rule could collapse the recreational mining industry. Other 
respondents said that United States mining laws authorize recreational 
and hobby mining.
    Response: The Organic Administration Act (16 U.S.C. 482) makes the 
United States mining laws (30 U.S.C. 22 et seq.) applicable to NFS 
lands reserved from the public domain pursuant to the Creative Act of 
1891 (Sec.  24, 26 Stat. 1095, 1103 (1891), repealed by Federal Land 
Policy and Management Act of 1976, Sec.  704(a), 90 Stat, 2743, 2792 
(1976)). Under the United States mining laws, United States citizens 
may enter those NFS lands to prospect or explore for and remove 
valuable deposits of certain minerals referred to as locatable 
minerals.
    Neither the United States mining laws or 36 CFR part 228, subpart 
A, recognize any distinction between ``recreational'' versus 
``commercial'' miners, or provide any exceptions for operations 
conducted by ``recreational'' miners. The same rules apply to all 
miners. Thus, to the extent that individuals or members of mining clubs 
are prospecting for or mining valuable deposits of locatable minerals, 
and making use of or occupying NFS surface resources for functions, 
work or activities which are reasonably incidental to such prospecting 
and mining, it does not matter whether those operations are described 
as ``recreational'' or ``commercial.'' However, functions, work, or 
activities proposed by individuals, members of mining clubs, or mining 
clubs themselves, such as educational seminars, treasure hunts, hunting 
camps, and summer homes, far exceed the scope of the United States 
mining laws. Accordingly, the purpose of both the interim rule and the 
final rule adopted by this rulemaking is to regulate all permissible 
operations under the United States mining laws. Thus, the interim rule, 
as well as the final rule being adopted by this rulemaking, apply to 
every person or entity conducting or proposing to conduct locatable 
mineral operations on NFS lands under the United States mining laws.
    For purposes of the final rule being adopted by this rulemaking, 
the requirement for prior submission of a notice of intent to operate 
alerts the Forest Service that an operator proposes to conduct mining 
operations on NFS lands which the operator believes might, but are not 
likely to, cause significant disturbance of NFS surface resources and 
gives the Forest Service the opportunity to determine whether the 
agency agrees with that assessment such that the Forest Service will 
not exercise its discretion to regulate those operations. For purposes 
of both the interim rule and the final rule being adopted by this 
rulemaking, the requirement for prior submission and approval of a 
proposed plan of operations ensures that the Forest Service can 
evaluate the environmental impacts of potentially more impactive 
proposed mining operations on NFS resources and enables the Forest 
Service to require less disruptive means of conducting those 
operations. Freese v. United States, 6 Cl. Ct. 1, 15 (1984), aff'd 
mem., 770 F.2d 177 (Fed. Cir. 1985). While these requirements do affect 
the manner in which mining operations are conducted, they do not 
deprive operators of the ability to conduct such operations. As such, 
the requirements fall within the Department's ``broad discretion to 
regulate the manner in which mining activities are conducted on the 
national forest lands.''
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: One respondent said that a new provision should be added 
to the final rule which states that the use of small portable suction 
dredges, such as those with an intake of four inches or less, does not 
require prior submission of a notice of intent to operate or prior 
submission and approval of a proposed plan of operations. The 
respondent said that various studies, including those by the United 
States Environmental Protection Agency, the Department of Interior, 
United States Geological Survey, and the State of Alaska Department of 
Natural Resources, have shown that these dredges do not cause 
significant disturbance of streams or rivers. The respondent also 
stated that such a provision would be consistent with the 
recommendations of the National Academy of Sciences, National Research 
Council's 1999 report entitled, ``Hardrock Mining on Federal Lands.''
    Response: The environmental impacts of operating suction dredges, 
even small ones, are highly site-specific depending on the 
circumstances and resource conditions involved. The environmental 
impacts of using a suction dredge on two bodies of water which are 
otherwise similar can vary greatly if a threatened or endangered specie 
inhabits one body of water but not the other. Even with respect to a 
particular body of water, the environmental impacts of suction dredge 
operations can vary by season due to climatic conditions or the life 
cycles of aquatic species. Given this variability, the Department 
believes that, insofar as suction dredge operations are concerned, the 
need for the prior submission of a notice of intent to operate or for 
the prior submission and approval of a proposed plan of operations must 
be evaluated on a site-specific basis. While the operation of suction 
dredges with intakes smaller than four inches may not require either a 
notice of intent to operate or an approved plan of operations in many 
cases, the prior submission of a notice of intent to operate will be 
required in some cases, and the prior submission and approval of a 
proposed plan of operations will be required in fewer cases.
    For these reasons, no change has been made in the final rule in 
response to this comment.
    Comment: Three respondents stated that the interim rule could be 
considered a taking of private property. Specifically, one of those 
respondents said that the rule could effect an unconstitutional 
regulatory taking of State land because States own the beds

[[Page 32721]]

beneath all waters and, in certain states, other riparian lands. 
Another respondent commented that delay inherent in the process of 
submitting a notice of intent to operate or submitting and obtaining 
approval of a proposed plan of operations could put a miner out of 
business or deny the miner the opportunity to extract minerals from the 
miner's mining claims, either of which could be considered a taking of 
private property. The remaining individual did not identify the impact 
of interim rule which he or she believes could constitute a regulatory 
taking of private property rights.
    Response: As previously discussed, NFS surface resources subject to 
36 CFR part 228, subpart A, usually include streambeds or other 
submerged lands. However, where adjudication has established that 
watercourses were navigable at the time that a State was admitted to 
the Union, those resources are solely subject to State regulation. The 
provisions of 36 CFR part 228, subpart A, as amended by the interim 
rule, are not applicable in a situation where streambeds or other 
submerged lands passed into a State's ownership upon that State's 
admission into the Union, because that subpart only applies to 
``National Forest System lands'' (Sec.  228.2). Therefore, the interim 
rule clearly does not have the potential to take property owned by 
States.
    In evaluating the effect of regulatory action on the property 
rights associated with a valid mining claim, it is important to 
remember that mining claims are a ``unique form of property'' (Best v. 
Humboldt Placer Mining Co., 371 U.S. 334, 335 (1963)), and the ``power 
to qualify [such] property rights is particularly broad * * *.'' 
(United States v. Locke, 471 U.S. 84, 104 (1985)).

    Claimants thus must take their mineral interests with the 
knowledge that the Government retains substantial regulatory power 
over those interests. In addition, the property right here is the 
right to a flow of income from production of the claim. Similar 
vested economic rights are held subject to the Government's 
substantial power to regulate for the public good the conditions 
under which business is carried out and to redistribute the benefits 
and burdens of economic life (Id. at 105; citations omitted).

    Moreover, as previously discussed, it is well established that a 
rule, such as the interim rule, which in certain circumstances requires 
a miner to obtain approval before conducting locatable mineral 
operations, does not deprive the miner of any property right conferred 
by a mining claim.
    For these reasons, the interim rule does not pose the risk of 
taking private property and no change has been made in the final rule 
in response to these comments.
    Comment: Several respondents said that the interim rule is fatally 
flawed because it has no enforcement provision and 36 CFR part 261 
cannot be applied to mining operations conducted pursuant to 36 CFR 
part 228, subpart A, including the interim rule.
    Response: The conclusion that 36 CFR part 261 is not applicable to 
locatable mineral operations conducted pursuant to the interim rule or 
the remainder of 36 CFR part 228, subpart A, is directly contrary to 
the holding of United States v. Doremus, 888 F.2d 630, 631-32 (9th Cir. 
1989). In this case, the appellants contended that they are exempted 
from the prohibitions of 36 CFR part 261(b) which states that ``nothing 
in this part shall preclude operations as authorized by * * * the U.S. 
Mining Laws Act of 1872 as amended.'' They also contended that their 
operations were authorized by statute and, therefore, the regulations 
do not prohibit such operations. However, the court rejected their 
argument, stating that:

    Part 228 does not contain any independent enforcement 
provisions; it only provides that an operator must be given a notice 
of noncompliance and an opportunity to correct the problem. 36 CFR 
228.7(b) (1987). The references to operating plans in Sec.  261.10 
would be meaningless unless Part 261 were construed to apply to 
mining operations, since that is the only conduct for which 
operating plans are required under Part 228. In addition, 16 U.S.C. 
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. In this context, Sec.  
261.1(b) is merely a recognition that mining operations may not be 
prohibited nor so unreasonably circumscribed as to amount to a 
prohibition. United States v. Weiss, 642 F.2d 296, 299 (9th Cir. 
1981).

Further, the interim rule also is enforceable by means of civil 
litigation seeking declaratory, injunctive, or other appropriate 
relief.
    For these reasons, no change has been made in the final rule as a 
result of these comments.
    Comment: Several respondents commented that the interim rule is 
preclusive because it requires a bond from miners for small scale 
mining operations.
    Response: The interim rule did not address, or purport to address, 
bonding of locatable mineral operations. Bonding of locatable mineral 
operations is governed by 36 CFR 228.13, which was not affected by the 
interim rule.
    For this reason, no change has been made in the final rule in 
response to these comments.
    Comment: A number of respondents expressed concern that the interim 
rule does not contain limitations on the time allowed for the Forest 
Service to process either a notice of intent to operate or a proposed 
plan of operations.
    Response: Section 228.4(a)(2)(iii) of the rule in effect prior to 
adoption of the interim rule provided that ``[i]f a notice of intent is 
filed, the District Ranger will, within 15 days of receipt thereof, 
notify the operator whether a plan of operations is required. This 
requirement was not changed in the interim rule, but was moved to Sec.  
228.4(a)(2).
    Limitations on the time available to process a plan of operations 
does not appear in Sec.  228.4(a). That issue is addressed in Sec.  
228.5(a), which was not affected by the interim rule. However, Sec.  
228.5(a) cannot circumscribe the Forest Service's obligation to comply 
with statutes, such as the National Environmental Policy Act or the 
Endangered Species Act, even if this compliance takes longer than the 
time stated in Sec.  228.5(a). Baker v. United States Department of 
Agriculture, 928 F. Supp. 1513, 1519-21 (D. Idaho 1996); cf. United 
States v. Boccanfuso, 882 F.2d 666, 671 (2d Cir. 1989).
    For these reasons, no change has been made in the final rule as a 
consequence of these comments.
    Comment: Several respondents commented that the Forest Service 
lacks jurisdiction to manage suction dredge mining because suction 
dredge mining has been exempted through agreements with each of the 
Western States. Additionally, these respondents said that each of the 
Western States regulate suction dredge mining thereby precluding Forest 
Service enforcement of the interim rule insofar as suction dredge 
mining operations are concerned.
    Response: None of the agreements between the Forest Service and a 
State government exempts persons wishing to conduct locatable mineral 
operations on NFS lands from complying with the interim rule, or any 
other provision of 36 CFR part 228, subpart A, in conducting those 
operations, including suction dredge mining.
    A State cannot preclude the Federal Government from regulating 
those things over which the Federal Government has authority, including 
Federal lands. Rather, Congress has absolute power to adopt legislation 
governing the use of Federal lands and to delegate authority to the 
executive

[[Page 32722]]

branch of government to adopt further rules for this purpose, as 
Congress did in the context of the Organic Administration Act, 16 
U.S.C. 478, 482, 551, which made the United States mining laws 
applicable to NFS lands reserved from the public domain pursuant to the 
Creative Act of 1891, Sec.  24, 26 Stat. 1095, 1103 (1891), repealed by 
Federal Land Policy and Management Act of 1976, Sec.  704(a), 90 Stat, 
2743, 2792 (1976), but which also made miners subject to regulations 
adopted by what is now the Department of Agriculture. Thus, it is State 
regulation of suction dredge mining operations which is pre-empted when 
it conflicts with Federal law, including rules adopted by executive 
agencies, such as the interim rule.
    For these reasons, no change has been made in the final rule in 
response to these comments.
    Comment: Several respondents stated that the interim rule will 
effectively revoke State of California Suction Dredge Permits held by 
miners operating on NFS lands. Those respondents also said that the 
Forest Service must provide those miners a hearing prior to that 
revocation.
    Response: These comments seem to presume that the Forest Service's 
regulation of suction dredge mining occurring on NFS lands pursuant to 
the interim rule will preclude the State of California from issuing 
suction dredge permits for those same operations. However, as 
previously stated, this assumption is inaccurate. It is entirely 
possible that both the Forest Service and a State can permissibly 
regulate suction dredge mining operations for locatable minerals 
occurring on NFS lands. Indeed, the Forest Service's locatable mineral 
regulations (36 CFR 228.8) specifically provide that persons conducting 
locatable mineral operations on NFS lands also must comply with 
applicable State imposed requirements, such as water quality 
requirements.
    The State of California itself recognizes that a miner who has 
obtained a suction dredge permit pursuant to California Fish & Game 
Code Sec.  5653 must also obtain all required authorizations from the 
Federal agency managing lands on which proposed suction