[Federal Register Volume 72, Number 36 (Friday, February 23, 2007)]
[Proposed Rules]
[Pages 8139-8142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3077]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Part 3800

[WO-620-1430-00-24 1A]
RIN 1004-AD69


Surface Management

AGENCY: Bureau of Land Management, Interior.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: This advance notice of proposed rulemaking is related to the 
Bureau of Land Management (BLM) surface management regulations for 
mining operations authorized by the Mining Law. In a previous Federal 
district court proceeding, environmental groups challenged the BLM's 
regulations on surface management under the Mining Law in 43 CFR 
subpart 3809, issued by the Department in 2001, in part, because the 
regulations did not require fair market value payment for the use of 
Federal lands for mining operations when the lands are ``invalidly 
claimed'' or unclaimed under the Mining Law. For the most part, the 
court upheld the 3809 regulations, but remanded them in part to the 
Department ``for evaluation, in light of Congress's expressed policy 
goal for the United States to `receive fair market value of the use of 
the public lands and their resources.' '' This advance notice of 
proposed rulemaking is intended to assist the BLM in the evaluation 
ordered by the Court.

DATES: You must submit your comments by April 24, 2007. The BLM may not 
necessarily consider or include in the Administrative Record for the 
advance notice of proposed rulemaking comments that the BLM receives 
after the close of the comment period or comments delivered to an 
address other than those listed below (see ADDRESSES).

ADDRESSES: Mail: Director (630), Bureau of Land Management, U.S. 
Department of the Interior, Mail Stop 401 LS, 1849 C St., NW., 
Washington, DC 20240, Attention: 1004-AD69.
    Personal or messenger delivery: 1620 L Street, NW., Washington, DC 
20036.
    Internet e-mail: <a href="/cdn-cgi/l/email-protection#55363a3838303b21260a2234263d3c3b32213a3b153739387b323a23"><span class="__cf_email__" data-cfemail="f1929e9c9c949f8582ae86908299989f96859e9fb1939d9cdf969e87">[email protected]</span></a> (include ``Attn: 
1004-AD69''). Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions at this Web site.

FOR FURTHER INFORMATION CONTACT: Scott Haight at (406) 538-1930, for 
information relating to the surface management program or the nature of

[[Page 8140]]

the notice, or Ted Hudson at (202) 452-5042 for information relating to 
the rulemaking process generally. Persons who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 1-800-877-8330, 24 hours a day, seven days a week, to 
contact the above individuals.

SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Analysis and Public Inquiry
    A. ``Invalidly Claimed'' Lands
    B. Lands on Which Claims of Unknown Validity are Located
    C. Unclaimed Lands

I. Public Comment Procedures

    Please submit e-mail comments as an ASCII file avoiding the use of 
special characters and any form of encryption. Please also include 
``Attn: 1004-AD69'' and your name and return address in your e-mail 
message.
    You may examine documents pertinent to this advance notice of 
proposed rulemaking at the L Street address.

A. How do I comment on the notice?

    If you wish to comment, you may submit your comments by any one of 
several methods:
    <bullet> You may mail comments to Director (630), Bureau of Land 
Management, Administrative Record, Room 401 LS, Director (630), Mail 
Stop 401 LS, Bureau of Land Management, U.S. Department of the 
Interior, 1849 C Street, NW., Washington, DC 20240, Attn: 1004-AD69.
    <bullet> You may deliver comments to Room 401, 1620 L Street, NW., 
Washington, DC 20036.
    <bullet> You may access and comment on the notice at the Federal 
eRulemaking Portal by following the instructions at that site (see 
ADDRESSES).
    <bullet> You may also comment via e-mail to <a href="/cdn-cgi/l/email-protection#d0b3bfbdbdb5bea4a38fa7b1a3b8b9beb7a4bfbe90b2bcbdfeb7bfa6"><span class="__cf_email__" data-cfemail="6a090507070f041e19351d0b190203040d1e05042a080607440d051c">[email protected]</span></a>. If you do not receive a confirmation that we have 
received your electronic message, contact us directly (202) 452-5030.
    Please make your comments as specific as possible by confining them 
to issues for which comments are sought in this notice, and explain the 
bases for your comments.
    The comments and recommendations that will be most useful and 
likely to influence agency decisions are:
    1. Those supported by quantitative information or studies; and
    2. Those that include citations to, and analyses of, the applicable 
laws and regulations.
    The BLM may not necessarily consider or include in the 
Administrative Record for the notice comments that we receive after the 
close of the comment period (see DATES or comments delivered to an 
address other than those listed above (see ADDRESSES).

B. May I review comments submitted by others?

    Comments, including names and street addresses of respondents, will 
be available for public review at the address listed under ADDRESSES: 
``Personal or messenger delivery'' during regular hours (7:45 a.m. to 
4:15 p.m.), Monday through Friday, except holidays.

C. Can my name and address be kept confidential?

    Before including your address, telephone number, e-mail address, or 
other personal identifying information in your comment, be advised that 
your entire comment--including your personal identifying information--
may be made publicly available at any time. While you can ask in your 
comment to withhold from public review your personal identifying 
information, we cannot guarantee that we will be able to do so.
    The BLM will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspections in their entirety.

II. Background

    In the Federal Land Policy and Management Act (``FLPMA''), Congress 
declared 13 policy goals for the public lands, among which are that:
    <bullet> The public lands ``be managed in a manner which recognizes 
the Nation's need for domestic sources of minerals'' (43 U.S.C. 
1701(a)(12)), and
    <bullet> ``[T]he United States receive fair market value of the use 
of the public lands and their resources unless otherwise provided for 
by statute'' (43 U.S.C. 1701(a)(9)). Following these 13 policy 
declarations, Congress stated that the ``policies of this Act shall 
become effective only as specific statutory authority for their 
implementation is enacted by this Act or by subsequent legislation and 
shall then be construed as supplemental to and not in derogation of the 
purposes for which public lands are administered under other provisions 
of law.'' (43 CFR 1701(b)).
    Commercial mining is one of the purposes for which public lands are 
administered. Congress declared in 1970 that ``it is the continuing 
policy of the Federal Government in the national interest to foster and 
encourage private enterprise in (1) the development of economically 
sound and stable domestic mining, minerals, metal and mineral 
reclamation industries, (2) the orderly and economic development of 
domestic mineral resources, reserves, and reclamation of metals and 
minerals to help assure satisfaction of industrial, security and 
environmental needs, (3) mining, mineral, and metallurgical research, 
including the use and recycling of scrap to promote the wise and 
efficient use of our natural and reclaimable mineral resources, and (4) 
the study and development of methods for the disposal, control, and 
reclamation of mineral waste products, and the reclamation of mined 
land, so as to lessen any adverse impact of mineral extraction and 
processing upon the physical environment that may result from mining or 
mineral activities.'' (30 U.S.C. 21a). The Secretary of the Interior 
has the statutory responsibility to carry out this national policy when 
exercising his authority under Federal laws such as FLPMA.
    In Mineral Policy Center v. Norton, 292 F. Supp. 2d 30 (D.D.C. 
2003), plaintiffs challenged the BLM's surface management regulations 
for hardrock mining, which are found at 43 CFR subpart 3809. One of the 
arguments that the plaintiffs made was that, on lands on which there 
are no valid mining claims, the BLM should be charging fair market 
value for use of the public lands for mining operations. Mineral Policy 
Center, 292 F. Supp. 2d at 40.
    In response, the BLM argued that, ``the `otherwise provided for by 
statute' exception set forth in FLPMA section 102(a)(9) exempts mining 
operations on both claimed and unclaimed lands from the fair market 
value policy, where such operations are conducted under the Mining 
Law.'' (Federal Defendants' Consolidated Motion for Summary Judgment at 
page 38).
    Nevertheless, the court concluded that ``[o]perations neither 
conducted pursuant to valid mining claims nor otherwise explicitly 
protected by FLPMA or the Mining Law (i.e., exploration activities, 
ingress and egress, and limited utilization of mill sites) must be 
evaluated in light of Congress's expressed policy goal for the United 
States to `receive fair market value of the use of the public lands and 
their resources' '' (Mineral Policy Center, 292 F. Supp. 2d at page 
51). The court then remanded the regulations to the Department to 
evaluate the competing priorities set forth in FLPMA as applied to 
invalidly claimed or unclaimed lands ``in light of Congress's expressed 
policy

[[Page 8141]]

goal for the United States to `receive fair market value of the use of 
public lands and their resources' '' (id. at pages 51 and 57).

III. Analysis and Public Inquiry

    The fair market value policy in FLPMA applies ``unless otherwise 
provided for by statute'' (43 U.S.C. 1701(a)(9)). Based on this 
exception, the court in Mineral Policy Center concluded that the Mining 
Law authorizes operations, including possession, occupancy, and mineral 
extraction activities, on valid mining claims without payment of fair 
market value for that use (292 F. Supp. 2d at pages 47 and 51). The 
court also concluded that the Mining Law authorizes exploration 
activities, mill site use in association with valid claims, and ingress 
and egress to valid claims, without payment of fair market value for 
that use (id.). The court instructed the BLM to evaluate the 
application of FLPMA's competing priorities, in light of the policy 
goal to receive fair market value for the use of the public land, to 
mining activities that amount to more than initial exploration 
activities conducted on invalidly claimed or unclaimed lands (id. at 
pages 46 and 50).

A. ``Invalidly Claimed'' Lands

    The Mining Law establishes the parameters under which mining 
claimants may locate and hold a mining claim (30 U.S.C. 23, 28). It is 
without question that ``in order to create valid rights or initiate a 
title as against the United States a discovery of mineral is 
essential'' (Union Oil Co. v. Smith, 249 U.S. 337, 346 (1919)). 
Nevertheless, ``while discovery is the indispensable fact and the 
marking and recording of the claim dependent upon it, yet the order of 
time in which these acts occur is not essential in the acquisition from 
the United States of the exclusive right of possession of the 
discovered minerals or the obtaining of a patent therefor, but that 
discovery may follow after location and give validity to the claim as 
of the time of discovery, provided no rights of third parties have 
intervened.'' (Id.)
    Because mining claims are self-initiated and may be located before 
the claimant discovers a valuable mineral deposit, the BLM cannot know 
whether an unpatented mining claim on the public lands is valid unless 
and until it determines the validity of the claim. However, while the 
BLM has discretion to initiate a mining claim validity examination at 
any time before a patent is issued, as a practical matter, it 
determines or verifies claim validity only rarely. Cameron v. United 
States, 252 U.S. 450, 460 (1920); Mark Squillace, The Enduring Vitality 
of the General Mining Law of 1872, 18 Envtl. L. Rep. 10,261, 10,266 
(1988) (stating that the government rarely considers the validity of an 
unpatented mining claim). See generally Legal Requirements for 
Determining Mining Claim Validity Before Approving a Mining Plan of 
Operations, M-37012 (Nov. 14, 2005).
    The BLM cannot feasibly embark on a program to make technical 
determinations of the validity of all unpatented mining claims. The 
administrative cost per mining claim of conducting a validity 
determination, including a field examination and an economic analysis, 
and carrying out a contest hearing, if necessary, is substantial. The 
BLM estimates that the cost per mining claim for a full validity 
determination, including an administrative contest hearing, ranges 
between $12,000 and $80,000. There are over 250,000 active mining 
claims on the public lands. Conducting validity determinations for all 
250,000 mining claims would exceed the BLM's annual operating budget 
many times over.
    Even if the BLM was appropriated sufficient funds and was able to 
locate and employ enough qualified mineral examiners to engage in such 
an extensive program, the open nature of the public lands makes the 
exercise futile. Mining claimants can locate mining claims only on 
lands that are open to the operation of the Mining Law. In rare 
circumstances, the lands on which mining claimants have located mining 
claims may be subsequently withdrawn from the operation of the Mining 
Law. However, almost all of the 250,000 existing mining claims are on 
public lands that remain open to the operation of the Mining Law. On 
these open lands, a validity determination is an inefficient use if not 
an outright waste of government resources, because nothing stops the 
claimant from immediately relocating a new claim on the same lands 
covered by the invalidated mining claim.
    In light of these practical administrative considerations, the BLM 
reasonably focuses its limited appropriations on conducting validity 
examinations where they are required. The BLM's regulations at 43 CFR 
3809.100 and 3862.1-1 require a complete validity determination only if 
a claimant:
    (1) Proposes mining operations on lands that were withdrawn or 
segregated from the operation of the Mining Law, or
    (2) Has applied for a patent.
    No law requires the BLM to determine the validity of mining claims 
before approving operations on lands that are open to the operation of 
the Mining Law (Legal Requirements for Determining Mining Claim 
Validity Before Approving a Mining Plan of Operations, M-37012 (Nov. 
14, 2005)). See also, Western Shoshone Defense Project, 160 IBLA 32, 56 
(2003) (``BLM generally does not determine the validity of the affected 
mining claims before approving a plan of operations'').
    The BLM cannot know whether lands are ``invalidly claimed'' unless 
it has conducted a validity examination and has determined that a 
mining claim is in fact invalid, or unless the claim has been voided by 
operation of law because of the claimant's failure to comply with an 
applicable annual maintenance requirement. In both instances, once a 
claim is void by operation of law or void because the BLM has 
determined that it is invalid, the claim no longer exists. Therefore, 
as the BLM applies it, the phrase ``invalidly claimed'' only covers 
lands on which a mining claim was formerly located that the BLM knows 
to be invalid because (1) The BLM has determined that the claim is 
invalid or (2) the claim was voided by operation of law because of the 
claimant's failure to comply with annual maintenance requirements.
    On withdrawn lands, the BLM does not approve mining operations for 
mining claims it has determined to be invalid or that have been voided 
by operation of law. Consequently, on withdrawn lands, since there is 
no authorized use of invalidated mining claims, the BLM need not 
consider whether it should receive fair market value for use of such 
``invalidly claimed'' lands.
    On open lands, the lands on which voided or invalidated mining 
claims once existed are nothing more than unclaimed lands. See section 
C below for further discussion regarding the use of unclaimed lands.

B. Lands on Which Claims of Unknown Validity are Located

    The court's decision in Mineral Policy Center did not address the 
use of lands on which mining claims of unknown validity exist. The 
parties did not brief this issue, and the court's decision did not 
consider the distinction between claims that the BLM has determined to 
be invalid and those for which the BLM has made no validity 
determination. As previously noted, the court concluded that the Mining 
Law authorizes operations, including possession, occupancy, and mineral 
extraction activities, on valid mining claims without payment of fair 
market value for that use (Mineral Policy Center, 292 F.

[[Page 8142]]

Supp. 2d at page 51). And while the court remanded the regulations in 
part for the BLM to evaluate whether it should charge fair market value 
for the use of invalidly claimed lands, we have already explained that, 
on withdrawn lands, there is no authorized use of invalidated mining 
claims and, therefore, the BLM need not consider whether it should 
receive fair market value for use of such ``invalidly claimed'' lands. 
In addition, we have explained that, on open lands, the lands on which 
voided or invalidated mining claims once existed are nothing more than 
unclaimed lands, which are discussed in section C below.
    What remains is the use of lands covered by mining claims of 
unknown validity. For the reasons described below, the BLM tentatively 
concludes that the use of mining claims of unknown validity for mining 
operations falls within the ``otherwise provided for by statute'' 
exception set forth in FLPMA's Section 102(a)(9). Under this 
interpretation, the BLM may not apply FLPMA's fair market value policy 
to approved mining operations that occur on mining claims of unknown 
validity. We solicit your views on this interpretation and the analysis 
set forth below.
    As explained above, mining claims can be located before or after a 
claimant discovers a valuable mineral deposit (Union Oil Co. v. Smith, 
249 U.S. at 346). Until the BLM examines the validity of a mining 
claim, it does not know whether a given claim is valid. The BLM cannot 
simply assume that a mining claim of unknown validity is invalid. The 
BLM can invalidate a claim without a validity determination only if the 
claim is void by operation of law because of a mining claimant's 
failure to comply with particular statutory filing or fee requirements 
(30 U.S.C.A. 28i (West Supp. 2006); 43 U.S.C. 1744(c)). Otherwise, the 
BLM must conduct a validity determination and, except in rare instances 
involving undisputed facts, contest a claim's validity by giving the 
claimant notice and an opportunity for a hearing before it can declare 
a claim invalid. Cameron v. United States, 252 U.S. 450, 460 (1920) 
(``so long as the legal title remains in the government it does have 
power, after proper notice and upon adequate hearing, to determine 
whether the claim is valid and, if it be found invalid, to declare it 
null and void'').
    The BLM manages mining claims of unknown validity as active mining 
claims under the Mining Law, as ratified repeatedly by Congress. In 
FLPMA, Congress recognized the existence of these active mining claims 
of unknown validity that are located under the Mining Law. In Section 
314 of FLPMA (43 U.S.C. 1744), Congress amended the Mining Law to 
require mining claimants--
    (1) To record each mining claim with the BLM by filing a copy of 
the notice of location, and
    (2) to file annual proof of having conducted the assessment work 
that is required by the Mining Law for each mining claim.
    Claimants are not required to demonstrate claim validity before 
complying with these filing requirements. Nor is the BLM required to 
determine the validity of any mining claim before it accepts these 
filings. Congress applied these requirements to all mining claims 
located under the Mining Law regardless of the validity of the claims, 
thereby allowing claimants to maintain mining claims of unknown 
validity. At the same time, by making these filings, a claimant does 
not make valid a claim that is not otherwise valid under applicable law 
(43 U.S.C. 1744(d)).
    In 1992, Congress continued to recognize the existence of active 
mining claims of unknown validity when it passed the Department of the 
Interior and Related Agencies Appropriations Act of 1993, (Pub. L. 102-
381, 106 Stat. 1374 (1992) (Appropriations Act)). The Appropriations 
Act required holders of unpatented mining claims to pay an annual 
rental fee of $100 per claim for 1993 and 1994, without regard to the 
underlying validity of the claims. Rent is defined as a ``fixed 
periodical return made by a tenant or occupant of property to the owner 
for the possession or use thereof'' (Merriam-Webster's Collegiate 
Dictionary 991 (10th ed. 1998)). Congress has extended this rental or 
maintenance fee requirement four times in subsequent legislation. See 
107 Stat. 312, 405-407 (1993); Public Law 105-240, Section 116 (1998); 
Public Law 107-63 (2001) (codified at 30 U.S.C.A. 28f. (West Supp. 
2002)); Public Law 108-108 (2003) (codified at 30 U.S.C.A. 28f. (West 
Supp. 2006)). The currently applicable law requires the fee payment 
until 2008. Congress also gave the BLM authority to make periodic 
adjustments to this fee based on changes in the Consumer Price Index 
(30 U.S.C.A. 28j(c) (West Supp. 2006)). In 2004, the BLM increased the 
fee from $100 to $125 (69 FR 40294, July 1, 2004). Since 1992, the BLM 
has collected over $300 million from mining claimants in fee payments.
    Because Congress allows mining claimants to locate mining claims 
under the Mining Law and maintain them by making annual payments to the 
BLM while the validity of the claims is unknown, the use of these 
mining claims for mining operations falls within the ``otherwise 
provided for by statute'' exception set forth in FLPMA's Section 
102(a)(9). Therefore, the BLM has tentatively concluded that it may not 
apply FLPMA's fair market value policy to approved mining operations 
that occur on mining claims of unknown validity.

C. Unclaimed Lands

    ``Unclaimed lands'' are lands on which no mining claims are 
located. The BLM is not aware of any instance in which a miner or 
mining company would use unclaimed lands to conduct mining and mineral 
production operations or related uses. The BLM is not aware of any 
miner or mining company that would be willing to invest money or 
resources in the development of a mine without some tenure in the land 
in the form of a mining claim or mill site. If a mining company were to 
file a plan of operations to develop a mine on unclaimed lands, a third 
party could easily locate mining claims over the area and assert 
adverse rights to the lands. Therefore, it is the BLM's tentative 
conclusion that no one uses unclaimed lands for mining operations that 
go beyond exploration activities on the public lands.
    Nevertheless, the BLM requests public comments regarding whether 
any miners or mining companies in fact use unclaimed lands for such 
mining operations. The BLM asks for detailed examples of any such use. 
After the BLM receives and considers these comments, it will determine 
whether further evaluation of FLPMA's competing priorities is needed 
with regard to any mining operations that go beyond exploration 
activities on unclaimed lands.

Author

    The principal author of this notice is Scott Haight of the Montana 
State Office, assisted by Ted Hudson of the Division of Regulatory 
Affairs, Washington Office, Bureau of Land Management, and Karen 
Hawbecker, Office of the Solicitor, Department of the Interior.

    Dated: February 5, 2007.
C. Stephen Allred,
Assistant Secretary of the Interior.
[FR Doc. E7-3077 Filed 2-22-07; 8:45 am]
BILLING CODE 4310-84-P


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