Eight Reasons there should be no mining in our National Forests
Reason One: Mining Minerals is not Agriculture
President Theodore Roosevelt created U.S. Forest Service in 1905 and put it under the Agriculture Department. He and his first FS Chief, Gifford Pinchot had carefully selected the best lands for timber in the Northwest and water in the Southwest. Separating these forests out of the big pool of (BLM) public lands managed by the Interior Department was a clear statement of his intention: create a sustainable timber crop and a water supply for the growing western cities. Further, The Organic Act clearly states that the selected Forests did not include lands more valuable for minerals. In fact, if they were found to include valuable minerals, they were have reverted back to BLM.
Reason Two: Federal Lands Policy and Management Act
FLPMA—Sec. 102. [43 U.S.C. 1701] (a) The Congress declares that it is the policy of the United States that– (2) the national interest will be best realized if the public lands and their resources are periodically and systematically inventoried and their present and future use is projected through a land use planning process coordinated with other Federal and State planning efforts…
Inventories of resources are required by FLPMA. However, the Forest Service doesn’t even keep records of the mines currently being permitted. I submitted a request for public information including the sites, acreage, and number of trees being impacted by current permitting. First, I received a letter from the Forest Service stating that they do not keep those records. Second, after requesting a repeal, I received an unorganized list of projects that did not even name the National Forest being impacted. Further, it did not give acreage impacted (moon-scaped and/or turned into toxic pits), or watersheds, or number of trees being destroyed.
Reason Three: 1872 Mining Law guidelines ignored
No modern mine fits the criteria of the mining law, yet the Forest Service personnel still claim they have to follow the antiquated law. Yet if they were to follow the law, there would be no hardrock pit mines destroying our National Forests. The public is being scammed.
The 1872 mining states:
CHAP. CL. II — As Act to promote the Development of the mining Resources of the Untied States.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners, in the several mining-districts, so far as the same are applicable and not inconsistent with the laws of the United States .
Sec.2. That mining-claims upon veins or lodes of quarts or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining-claim located after the passage of this act, whether located by one or more persons, may equal, but not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall exceed more than three hundred feet on each side of the Middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less then twenty five feet on each side of the middle of the vein at the surface, except where adverse rights existing at the passage of this act shall render such limitation necessary. The end-lines of each claim shall be paralleled to each other.
FORTY-SECOND CONGRESS. Sess. II Ch. 152. 1872. 96
Sec. 15. That where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable under this act to veins or lodes: Provided, That no location hereafter made of such non-adjacent land shall exceed five acres , and payment for the same must be made at the same rate as fixed by this act for the superficies of the lode. The owner of a quartz-mill or reduction-works, not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in this section. [Successful law suit on the milling issue at Crown Jewel]
The General Mining Law of 1872, as amended (30 USC 29 and 43 CFR 3860, provides the successful mining claimant the right to patent (acquire absolute title to the land) mining claims or sites if they meet the statutory requirements. To meet this requirement, the successful claimant must:
- For mining claims, demonstrate a physical exposure of a valuable (commercial) mineral deposit (the discovery) as defined by meeting the Department’s Prudent Man Rule and Marketability Test.
- For mill sites, show proper use or occupancy for uses to support a mining operation and be located on non-mineral land.
- Have clear title to the mining claim (lode or placer) or mill site.
- Have assessment work and/or maintenance fees current and performed at least $500 worth of improvements (not labor) for each claim (not required for mill sites).
- Meet the requirements of the Department’s regulations for mineral patenting as shown in the Code of Federal Regulations at 43 CFR 3861, 3862, 3863, and 3864.
- Pay the required processing fees and purchase price for the land applied for. www.blm.gov/wo/st/en/info/regulations/mining_claims.html
For an example, we will use the current Augusta Resource Corp./Rosemont Copper Mine project in the Coronado National Forest near Tucson, Arizona:
1) Augusta Resource Directors and stockholders are not U. S. Citizens. (NO)
2) The mining claim size for an individual prospector is limited. (NO)
3) Land intended for milling, waste piles, slurry disposal, etc. is to be patented. (NO)
4) Patented land intended for milling, etc. should not exceed five acres per claim. The pit will use about 30 claims = 150 acres, whereas the operation is planned to use around 4,000 acres for their mill, waste piles and tailings. (NO)
In addition, the BLM website outlines statutory regulations that would nullify any permitting of the Augusta Resource Corp./Rosemont Copper Mine project.
1) The company does not have a clear title to the mill site. It is required by 1872 mining law that the land be patented by purchase. (NO)
2) The company must have done assessment work and/or maintenance fees of at least $500 for the life of the claim. Therefore, these claims were null and void at the time of their purchase from ASARCO. The records that show that how/when Augusta Resource Corp./Rosemont Copper Mine (and ASARCO, the previous owner) has fulfilled this obligation on all their claims must be shown—except for 5 acres allowed for mill sites. (NO)
3) The company has not paid the required processing fees and purchase price, or done the required maintenance for the Forest Service land (not patented) of 3670 acres of USFS land they have applied for to be used as waste and tailings dumps. (NO)
Reason Four: National Forests were created for water and watershed
In the January 2000, U. S. Forest Service report: Water and the Forest Service, [http://www.stream.fs.fed.us/publications/PDFs/Water_and_FS.pdf] was created at National Headquarters with taxpayers’ money. The report emphasizes the importance of forests for maintaining a viable, clean water supply–even for urban use. The principal point is made in the first paragraph:
HEALTHY FORESTS ARE VITAL TO CLEAN WATER
Forests are key to clean water. About 80 percent of the Nation’s scarce freshwater resources originate on forests, which cover about one-third of the Nation’s land area. The forested land absorbs rain, refills underground aquifers, cools and cleanses water, slows storm runoff, reduces flooding, sustains watershed stability and resilience, and provides critical habitat for fish and wildlife. In addition to these ecological services, forests provide abundant water-based recreation and other benefits that improve the quality of life.
The watershed issue is emphasized through out the report, especially restoration of damaged watershed. One would question the logic of permitting private corporations to destroy the landscape, vegetation and watershed, so that clean water is no longer available, and then expect taxpayers to pay for reclamation projects. Later in the report it is stated that repair of damaged watershed is not effective. (See category “h” below.) The report sums up the challenge:
The Agency Challenge [Page iv of Summary]:
The challenge for the Forest Service will be to simultaneously perform the following:
- Systematically restore damaged watersheds on the National Forests.
- Mitigate additional watershed damage from land uses and the inevitable major wildfires.
- Foster partnership efforts to meet the most pressing watershed restoration needs when they fall outside of National Forest boundaries.
The Summary [Pages i-vii] states the principal water issues the Forest Service mandate addresses:
1) Healthy forests are vital to clean water.
2) Maintaining and restoring watersheds were primary reasons for National Forests.
3) Water is the central organizer of ecosystems.
4) Following are questions regarding the role of forests in water supply:
a. How much water comes from the National Forests? Excluding Alaska, about two-thirds of the Nation’s runoff comes from forested areas. National Forest lands contribute 14 percent of the total runoff. National Forest lands are the largest single source of water in the United States and contribute water of high quality…..
b. What is the Value of Water from the National Forest lands? We calculate the marginal value of water from all National Forest lands to equal at least $3.7 billion per year.
c. One issue is whether municipal watersheds should be placed under active or passive management regimes to sustain supplies of high-quality water over the long run. Many Forest Service specialists think that water supplies can be best protected by actively managing these watersheds to maintain forest vegetation and watershed processes within their natural range of variation.
d. Can Forests be Managed to Improve Stream Flow? Flooding and sedimentation from cutover lands was one of the primary reasons for establishing national forests…. There is relatively little management can do to increase total water yield, but forest management can have major effects on water quality—affecting temperature, nutrient loadings, sediment yields, and toxic contaminants.
e. What is the Agency’s Role in Protecting Instream Flow and Ground Water? The Forest Service must actively participate in the processes that allocate surface water, ground water, and water rights. To be effective, this participation must be timely and of impeccable technical quality.
f. What is the Agency’s Role in Hydroelectric Relicensing? During the next 10 years, more than 180 of these projects come up for relicensing. The relicensing process presents the only opportunity for the Forest Service to address resource damage, mitigate future adverse effects, and significantly influence how these projects will operate for the next 30 to 50 years.
g. What is the Agency’s Role in Conserving Aquatic Biodiversity? National Forest lands and waters play a pivotal role in anchoring aquatic species and maintaining biodiversity. More then one-third of national forest lands have been identified as important to maintaining aquatic biodiversity.
h. Can the Watershed Condition on National Forests be Restored? Even with aggressive management, that momentum [of current damage rate] will not be overcome within the next 100 years under projected funding. Progress toward forest health restoration can be expected to proceed very slowly…. These findings suggest that it will not be feasible to restore all degraded areas.
i. What is the Role of Urban Forests in Water Supply? Counties classified as “urban” contain one-quarter of the total tree cover of the coterminous United States. Urban trees affect water quantity by intercepting precipitation, increasing water infiltration rates, and transpiring water. They can materially reduce the rate and volume of storm water runoff, flood damage, storm water treatment costs, and other problems related to water quality.
Reason Five: Laws exist to protect water supply and levels in National Forests
Development and Status of Federal Reserved Water Rights:
The mandate regarding Federal rights to water was established in 1908 by Winters v. United States.
When the United States reserves public land for uses such as Indian reservations, military reservations, national parks, forest, or monuments, it also implicitly reserves sufficient water to satisfy the purposes for which the reservation was created. Both reservations made by presidential executive order or those made by an act of Congress have implied reserved rights. The date of priority of a federal reserved right is the date the reservation was established.
Subsequent laws have attempted to water down the original intent. However, in a case in 1999 in Arizona regarding water on BLM land, a Federal Judge reaffirmed the Federal rights are still in tact. The presiding judge wrote, “The [Winter’s] doctrine applies not only to Indian reservations, but to other federal enclaves, such as national parks, forests, monuments, military bases, and wildlife preserves.”
The Federal rights to water in our public lands, including National Forests were reasserted again in the Gila River Adjudication in Arizona:
SUPREME COURT OF ARIZONA
195 Ariz. 411;989 P.2d 739;1999 Ariz.
From Opinion by Judge Noel A. Fidel:
The reserved water rights doctrine provides:
When the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators.
Cappaert v. United States, 426 U.S. 128, 138, 48 L. Ed. 2d 523, 96 S. Ct. 2062 (1976). The doctrine applies not only to Indian reservations, but also to other federal enclaves, such as national parks, forests, monuments, military bases, and wildlife preserves. Id. at 138-39;Arizona v. California, 373 U.S. 546, 601, 10 L. Ed. 2d 542, 83 S. Ct. 1468 (1963).
Reason Six: Forests are our natural air purification system
By the miracle of photosynthesis, the Creator figured out a way convert the poisonous gas that people exhale into pure oxygen. Why would we want to replace trees with hardrock mining that pollute the air with dust and chemical fumes?
Maryland Department of Natural Resources has released a report:
Trees Reduce Air Pollution
Trees: Help to settle out, trap and hold particle pollutants (dust, ash, pollen and smoke) that can damage human lungs.
- Absorb CO2 and other dangerous gasses and, in turn, replenish the atmosphere with oxygen.
- Produce enough oxygen on each acre for 18 people every day.
- Absorb enough CO2 on each acre, over a year’s time, to equal the amount you produce when you drive your car 26,000 miles.
Trees remove gaseous pollutants by absorbing them through the pores in the leaf surface. Particulates are trapped and filtered by leaves, stems and twigs, and washed to the ground by rainfall.
We need the Forests to survive–and Forests need our attention to thrive!
Reason Seven: The Forest Planning Rule omits devastation by hardrock mining
The Forest Planning Rule does not include the problems caused by mining in our public National Forests. The Rule deals with the logging industry, sustainability, and the impact on watershed and wildlife, but ignores the impacts of mining on these very issues. Hardrock, pit mining causes even greater devastation than logging; a devastation that cannot be replanted or recovered, especially in the Southwest where the rain is sparse and the topsoil is poor. I made extensive comments on this oversight in previous comments to the Forest Service: www.mining-law-reform.info/Forest-Planning-Rule-Comments.htm that were ignored too.
In a conference call last year, the Forest Service announced the Environmental Impacts (EIS) of the new Forest Planning Rule. This rule is intended to guide the Forest Plans of individual Forests, which are created locally. The theme of the call was restoring forests and watersheds, along with the economic value of recreation. The importance of restoration was emphasized 15 times, watershed 12 times, and recreation 11 times.
USDA Secretary Vilsack stated at the beginning of the call: “I think we all recognize that our forests are extraordinarily vital. They provide clean water, clean air; they are a job producer, they are also enormous recreational opportunities, and jobs that are associated with that, they obviously home to habitat, wildlife. They have a range of benefits for all Americans. We are proud to have publicly owned National Forest that consists of 193 million acres, which belong to every single citizen in this country.”
Link to audio: http://ocbmtcreal.usda.gov/&uri=/USDA/secy&stream=012612
[Note: Apparently, they have taken media down. It’s a good thing I transcribed it–see link below]
Link to transcript: www.mining-law-reform.info/Forest-Planning-Rule-EIS.htm
The Forest Service is ignoring the fact that they are in the process of permitting large numbers of mining projects. Their records are incomplete and unorganized: www.mining-law-reform.info/LMG%20Operations%20Report.pdf
Therefore, we have compiled an inventory of the current permits in process from the individual forests—44 National Forest “Reserves” are being threatened with 170 projects in the Western U.S.: www.mining-law-reform.info/National-Forest-destruction.htm Records are not available for project currently in operation.
Further, the individual Forest Plan can be changed on a whim—without notice to the public. For the sake of a mining project, the Coronado Forest Service has circumvented an on-going (4 year) process on a revised Forest Plan. The current plan and the revision do not mention mining. An Amendment to the Forest Plan was stuck in the mining company’s DEIS with no prior public notice, as the Mining Plan had been accepted by the Forest Service in 2007. They signed an agreement with the mining company–but made no agreement whatsoever with the Public. The Forest Service had plenty of time to publicly notice their intent from 2007 to 2010.
Fall 2005 Pre-Revision preparation
Spring 2006 Begin developing Comprehensive Evaluation Report
June 2006 Public meetings to determine issues
Sept 2006 Public meetings to prioritize issues
Nov 2007 Public meetings to develop Desired Conditions
Nov 2008 Public open houses to share draft Desired Conditions
and proposed Land Use Zones (Suitability)
June 2009 Notice of Initiation published in the Federal Register
January 2010 Notice of Intent to revise Forest Plan published in the Federal Reg.
March 2010 Open houses to present initial working draft of revised Forest Plan
initial 45-day scoping period begins
April – Oct 2010 Developed draft Environmental Impact Statement (DEIS)
No public notice of the new Amendment proposed in page 89 in Chapter 2 of a 1,000-page DEIS was given. The DEIS cannot serve as a Public Notice for an Amendment—certainly when the change is not announced publicly nor to the participants of the 5-year process! I have been participating and receiving notices on the Forest Plan by e-mail from the Forest Service. I received no notice of any Amendment.
Further, the Forest Service personnel states “a preliminary review of the proposed amendment indicate that it would likely not be a significant amendment to the Coronado Forest Plan.” (DEIS, pg. 95) An amendment that allows 10-ton haul trucks, and limits small HOV vehicles? A toxic pit lake that can poison birds and wildlife? The destruction of 6,000 acres of forest forever, including 33,000 matures trees? These impacts are not “significant”??
What is the purpose of a Planning Rule that ignores mining and allows individual foresters to make their own rules to permit destruction?