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.