AMA Lands Committee. + Biodiversity Sub-Committee + Uranium Sub-Committee LOCAL, STATE AND FEDERAL UPDATES ALERTS: MAY 2017

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1 AMA Lands Committee + Biodiversity Sub-Committee + Uranium Sub-Committee LOCAL, STATE AND FEDERAL UPDATES Next meeting: August 14, 2017 Location: Arizona Mining Association 916 W. Adams St., Suite 2, Phoenix, AZ Chair: Carolyn C. Loder Vice Chair: Eric Mears (602) MAY 2017 ALERTS: BLM Resource Advisory Committee: Applications are being accepted through May 30 to serve on the BLM RAC. There is a need for promining representatives. Terms are 3 years, unpaid with travel expenses reimbursed. Get more information at Executive Order on Review of National Monument Designations: Pres. Trump issued an E.O. on 4/26 directing Interior Secretary Zinke to conduct a review of all National Monument designations in excess of 100,000 acres made since Four monuments in AZ meet the criteria: Grand Canyon-Parashant, Sonoran Desert, Vermillion Cliffs and Ironwood Forest. Oversight Hearing on the Consequences of Executive Branch Overreach of the Antiquities Act: On 5/2/17 the House Natural Resources Subcommittee on Federal Lands held a hearing on the Presidential Usage of the Antiquities Act to create and expand national monuments. Executive Order Regulatory Review. U.S. Environmental Protection Agency (EPA) requested comments on regulations that may be appropriate for repeal, replacement, or modification. This is one of several steps in EPA s implementation of Executive Order on Enforcing the Regulatory Reform Agenda, which 1

2 established a federal policy to alleviate unnecessary regulatory burdens placed on the American people. The NMA has asked each mining association to review and make suggestions. They are asking for edits to be sent by May 10 th. Please get AMA your comments by the 5 th. EPA s Regulatory Reform Task Force is directed to identify regulations that: (1) eliminate jobs or inhibit job creation; (2) are outdated, unnecessary, or ineffective; (3) impose costs that exceed benefits; (4) create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies; (5) rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or (6) derive from or implement Executive Orders or Presidential directives that have been subsequently rescinded or substantially modified. Executive Order also incorporates the regulatory principles of Executive Order 12866, including minimizing duplication with state and federal programs and imposing the least burdensome regulatory option. STATE LEGISLATION 5/1/2017 SB AZGS Funding: Appropriates $941,000 for the Arizona Geological Survey in FY The bill passed the Senate and passed House Rules on 5/1/17. Bill is part of budget negotiations at this point. 4/28/2017 SB Mining and Mineral Museum: Finalizes the permanent transfer of the Polly Rosenbaum Building and Arizona Mining & Mineral Museum collection to the University of Arizona. Signed by Gov. Ducey on 4/28/17. 4/26/2017 HB 2095 (Bowers) & SB 1245 (Griffin) - State Lands/perpetual right-of-ways. Passed out of Senate on 4/26/ /24/2017 HB 2157 (Bowers) - State Lands/private property access/rights-of-way. Sent to Governor 4/24/2017. HB 2090 (Carter) - State Land Office; defines as agency and thus must adopt licensing time-frames as required by other agencies. Striker Bill; in Rules Committee. 2

3 FEDERAL LEGISLATION H.J.R. 41 Disapproval of SEC Rule on Payment Disclosure for Resource Extraction Issuers Extractive Industries Transparency Initiative (EITI) Sponsors: Rep. Bill Huizinga (R-MI) Status: Signed into law on Feb. 14, Summary: Nullifies SEC rule on Disclosure of Payments by Resource Extraction Issuers. The rule had required resource extraction companies to report all payments made to the U.S. Government or foreign governments for rights to commercially develop oil, natural gas, or minerals, as mandated by the Dodd- Frank Act. See 15 U.S.C. 78m(q); Disclosure of Payments by Resource Extraction Issuers, Exchange Act Release No , 81 Fed. Reg. 49,360 (July 27, 2016). EITI website: House Bills by action date: 4/26/17 H.R Acre In, Acre Out Sponsors: Rep. Morgan Griffith (R-VA) +2, including AZ Rep. Gosar Status: Referred to Committee on Agriculture and Committee on Natural Resources on 4/26/17 Summary: Requires the Secretaries of Agriculture and Interior to sell one acre of public land for every new acre their agencies acquire in order to prevent further expansion of the total acreage owned by Bureau of Land Management, Forest Service, Fish and Wildlife Service and National Park Service. Lands must be sold at fair market value or reduced by 10% per month after 6 months on the market. 3/29/2017 H.R. 5 Regulatory Accountability Act of 2017 Sponsors: Rep. Bob Goodlatte (R-VA) + 25, including Franks Status: Passed House on 1/11/17. Hearings held in Senate Committee on Small Business and Entrepreneurship on 3/29/17 Summary: Related to federal rulemaking procedures under the Administrative Procedures Act. Exempts a conveyance of federal land to a state, local government or tribal entity from Congressional pay-as-you-go limits. Previously, the Congressional Budget Office had scored federal land conveyance bills by estimating the loss of revenue from activities like drilling, logging and grazing. 3/22/17 H.R BLM Foundation Act Sponsors: Reps. Jody B. Hice (R-GA) and Alan Lowenthal (D-CA) 3

4 Status: Referred to House Committee on Natural Resources on 3/22/17. Summary: Creates a foundation within the Bureau of Land Management. Donors would be able to specify which programs should receive their money, such as wild horses and burros, national conservation areas, recreation resources or reclamation of abandoned hard rock mines. The foundation would conduct programs and activities and award grants that provide educational, technical and scientific support. 3/20/2017 H.R.1489 Marine Access and State Transparency (MAST) Act Sponsors: Rep. Don Young (R-AK) Status: Referred to the Subcommittee on Water, Power and Oceans and Subcommittee on Federal Lands on 3/20/17 Summary: Requires congressional approval for onshore national monuments and any restrictions on the use of those national monuments. This would limit a U.S. president from closing down a national monument to energy development, as President Obama did when declaring Utah s Bears Ears a national monument. 3/1/2017 H.R SCRUB Act Sponsors: Rep. Jason Smith (R-MO) + 3 Status: Passed House on 3/1/17. Received in the Senate and Read twice and referred to the Committee on Homeland Security and Governmental Affairs on 3/2/17 Summary: Sets up an independent commission to review existing regulations that should be rescinded. The recommendations would then be bundled and considered by Congress. If Congress accepts the bundled recommendation, agencies would have 60 days to terminate rules. 2/24/2017 H.R Public Land Renewable Energy Development Act of 2017 Sponsors: Rep. Paul Gosar (R-AZ) + 27, including Franks, Biggs, Grijalva, Schweikert and Sinema Status: Referred to the Subcommittee on Conservation and Forestry on 2/24/17 Summary: The Secretary of Interior, in consultation with the Secretary of Energy, shall establish priority areas on covered land for geothermal, solar and wind energy projects. The Secretary of Interior shall establish a program to improve federal permit coordination with respect to renewable energy projects on covered land. 4

5 2/10/2017 H.R Greater Grand Canyon Heritage National Monument Act Sponsors: Rep. Raúl Grijalva (D-AZ) + 8 Status: Referred to the House Subcommittee on Federal Lands on 2/10/17 Summary: Establishes the monument, to be located north and south of Grand Canyon National Park. 2/10/2017 H.R. 502 Land and Water Conservation Act Sponsors: Raúl Grijalva + 155, including O Halleran, Sinema and Gallego Status: 02/10/2017 Referred to the Subcommittee on Water, Power and Oceans Summary: Permanently authorizes the Land and Water Conservation Fund (LWCF) and requires that at least 1.5% or $10 million goes towards projects that secure public access to existing federal public land for hunting, fishing and other recreational purposes. 2/10/2017 H.R National Strategic and Critical Minerals Production Act Sponsors: Rep. Mark Amodei (R-NV) + 19, including Gosar Status: Referred to the House Subcommittee on Energy and Mineral Resources on 2/10/17 Summary: Companion bill to S Requires the Secretary of the Interior and the Secretary of Agriculture to more efficiently develop domestic sources of the minerals of strategic and critical importance to the economic and national security and manufacturing competitiveness of the United States. Supported by the National Mining Association. 2/2/2017 H.J.R. 60 Disapproval of FWS Compensatory Mitigation Rule Sponsors: Rep. Dan Newhouse (R-WA) + 7, including Gosar and Biggs Status: Introduced February 2, 2017 Summary: Nullifies U.S. Fish and Wildlife s final ESA Compensatory Mitigation Policy (81 Fed. Reg. 95,316 - Dec. 27, 2016) using Congress s Congressional Review Act authority. The policy established standards for the use of compensatory mitigation when implementing sections 7 and 10 of the ESA. 1/13/2017 H.R Greater Sage Grouse Protection and Recovery Act of 2017 Sponsors: Rob Bishop (R-UT) + 10, including Gosar Status: Referred to the House Committee on Natural Resources on 1/13/2017 5

6 Summary: Companion bill to S Forbids implementation of BLM and Forest Service plans to protect the sage grouse if states had management plans in place. Forbids listing of the greater sage grouse under the Endangered Species Act. Forbids withdrawal of 10 million acres from hard rock mining. Senate Bills: 3/28/2017 S 751- National Park Service Legacy Act of 2017 Sponsors: Sen. Mark Warner (D-VA) + 10 (bipartisan) Status: Read twice and referred to the Committee on Energy and Natural Resources on 3/28/17. Summary: Establishes a fund for Park Service maintenance. The money would be drawn from revenues from mineral development and would not be subject to appropriations. However, House and Senate Appropriations Committees would have to sign off on annual priority project lists submitted by NPS. For FY the bill would allocate $50 million per year for the NPS maintenance backlog. For FY , it would allocate $150 million per year. For FY , it would allocate $250 million per year. And from FY it would allocate $500 million per year. Eighty percent of the money would be used for nontransportation projects and 20 percent for transportation. More than half of the total NPS maintenance backlog is made up of transportation projects, but a surface transportation law already allocates more than $270 million per year to Park Service highway construction. Inclusion of S751 in an infrastructure bill holds more promise than the stand-alone bill. 3/8/2017 S. 569 Land and Water Conservation Act Sponsors: Sen. Maria Cantwell (D-WA) + 26 Status: 3/08/2017 Read twice and referred to the Committee on Energy and Natural Resources. Summary: Permanently authorizes and fully funds the $900M Land and Water Conservation Fund (LWCF) which has existed since 1965 but only once received full funding. The bill has one Republican co-sponsor Richard Burr of North Carolina and has support from Interior Secretary Zinke. 3/8/2017 S Better Evaluation of Science and Technology (BEST) Act Sponsors: Sen. James Lankford (R-OK) + 2 6

7 Status: Read twice and referred to the Committee on Homeland Security and Governmental Affairs on 3/8/17 Summary: Clarifies how agencies should use science when conducting rulemakings. Summary: Companion bill to H.R Requires the Secretary of the Interior and the Secretary of Agriculture to more efficiently develop domestic sources of the minerals of strategic and critical importance to the economic and national security and manufacturing competitiveness of the United States. Supported by the National Mining Association. 2/1/2017 S Greater Sage Grouse Protection and Recovery Act of Sponsors: Sen. Jim Risch (R-Idaho) + 6 Status: Read twice and referred to the Committee on Environment and Public Works on 2/1/17 Summary: Companion bill to H.R Forbids implementation of BLM and Forest Service plans to protect the sage grouse if states had management plans in place. Forbids listing of the greater sage grouse under the Endangered Species Act. Forbids withdrawal of 10 million acres from hard rock mining. 1/12/2017 S National Strategic and Critical Minerals Production Act Sponsors: Sen. Dean Heller (R-NV) + 2 Status: Read twice and referred to the Senate Committee on Energy and Natural Resources on 1/12/17. 1/5/2017 S Improved National Monument Designation Process Act Sponsors: Sen. Lisa Murkowski (R-AK) + 27, including Flake and McCain Status: Read twice and referred to the Committee on Energy and Natural Resources on 1/5/2017 Summary: Requires Congressional and state approval of any new national monument. Forthcoming Legislation: Critical Minerals: On 3/28/17, the Senate Energy and Natural Resources Committee held a hearing to examine the United States increasing dependence on foreign sources of minerals and opportunities to rebuild and improve the supply chain in the United States. Sen. Murkowski (R-AK) used the hearing to bolster the forthcoming reintroduction of her critical minerals bill. The House subcommittee on 7

8 Energy and Minerals Resources held a hearing March 21 on the need for minerals for infrastructure projects. The end game for critical minerals legislation may be in the massive infrastructure bill that Pres. Trump has promised. ESA Reform: The Senate Environment and Public Works Committee and the House Natural Resources Committee have both initiated efforts to reform the Endangered Species Act (ESA). Section 7 consultations were the focus of a March 28 hearing of the House subcommittee on Oversight of the House Natural Resources Committee. Transfer of Public Lands: The House Natural Resources Committee recommended that the fiscal year Congressional 2018 budget allow for the conveyance of certain federal lands to state, local or tribal governments. TRUMP TRANSITION Agriculture Secretary: Former Georgia Governor Sonny Perdue was confirmed on April 24. DEPARTMENT OF INTERIOR Highlights from Budget: o BLM: $15M increase in funding. $9M allocated to sage grouse conservation project and federal land preservation. BLM Foundation, a non-profit which can accept private donations is created. See HR o U.S. Geological Survey: $23M increase in funding, nearly half of which will go to an early earthquake monitoring system. The rest is for groundwater monitoring and mapping, in addition to a wide range of environmental science the agency provides. o Fish and Wildlife Service: $11M increase, mostly going towards efforts to delist endangered species, combat illegal wildlife trafficking and fight invasive species. o National Parks: $81M increase to address maintenance backlog and for projects related to the agency s centennial celebration. o Although not part of Interior, other budget highlights include $407M for fighting Western wildfires and virtually no cuts to EPA. 3/29/2017 National Monument Reversals: American Enterprise Institute (AEI) published a report on March 29 which asserts that President Trump has the authority to revoke national monument designations. According to this report, legal precedent exists for a president to reduce the size and scope of national monuments. Although 8

9 there have been no court cases to determine whether a President can entirely revoke a national monument made by his predecessor, AEI believes this type of action is also legal. The full report can be accessed here: Reversal of Uranium Mining Withdrawal: Mohave County supervisors intend to ask President Trump to undo the 2012 withdrawal of 1 million acres near the Grand Canyon for 20 years by the Obama Administration. BUREAU OF LAND MANAGEMENT (BLM) Planning 2.0: Shortly after President Trump signed legislation overturning BLM Planning 2.0, Secretary Zinke has ordered BLM back to the drawing board to revise the agency s land planning procedures. FISH AND WILDLIFE SERVICE No new developments. FOREST SERVICE 3/2017 Release of Tonto National Forest Final Assessment Report of Ecological Conditions, Trends, and Risks to Sustainability. INTERIOR BOARD OF LAND APPEALS Subject: Land exchange. BLM decision: BLM will exchange federal lands for private lands after preparing an environmental assessment (EA). Appellant advocacy group: The exchange is not equal because the federal lands are worth more than the private lands. IBLA decision: Affirmed BLM decision. Case identification: Colorado Wild Public Lands Inc. 189 IBLA 392. Decided March 27, Twenty-three pages. Appeal and a renewed petition to stay the effect of BLM s denial of a protest opposing a land exchange. IBLA argument: IBLA Administrative Judge Sylvia M. Riechel affirmed a BLM decision approving a land exchange in Colorado between BLM and a noted billionaire. The appellant advocacy group argued that the federal land was worth far more than the private land, but judge Riechel held that the tracts were of equal 9

10 value, some $4 million each. The appellant also argued that BLM should have described in detail an environmental mitigation strategy. But Riechel countered that because BLM did not rely on a mitigation strategy in its EA it didn t have to detail such a strategy. The industrialist Leslie Wexner with a net worth of more than $6 billion proposed the exchange to consolidate holdings in his estate near Aspen, Colo. Subject: Mining claim decision reconsidered. BLM decision: BLM will declare a mining claim void if a claimant fails to file a notice of intent to hold the claim on time. Initial IBLA decision: Reversed, BLM should give claimant opportunity to submit notice because requirement is regulatory, not statutory. Appellant BLM: IBLA erred because requirement is statutory and the claim should be declared void. IBLA decision: Reversed itself and affirmed original BLM decision. Case identification: Barton Coffman Sarah Kuhl (On Reconsideration). 190 IBLA 1. Decided March 28, Ten pages. Motion for reconsideration of the Board s decision in Barton Coffman 187 IBLA 338 (2016), reversing and remanding a decision of the California State Office of BLM, which declared a placer mining claim abandoned and null and void for failure to file a notice of intent to hold. CAMC IBLA argument: IBLA Deputy Chief Administrative Judge James F. Roberts reversed a previous board decision involving the filing of a notice to retain a mining claim. In BLM s July 7, 2016, decision it held that Barton Coffman forfeited his mining claim by failing to file a notice of intent to retain it in a timely manner. BLM held that the requirement is statutory and it had no choice but to void the claim. In an initial IBLA decision on May 5, 2016, the board ruled the requirement was regulatory, not statutory, and BLM should give Coffman an opportunity to file the notice. When BLM appealed back the IBLA decision, the board reversed course in this decision, holding it erred in declaring the filing requirement regulatory. Said Roberts, Because the requirement to a notice of intent to hold in any year after the year of location is required by section of FLPMA, it is a statutory requirement in addition to a regulatory requirement and therefore is not subject to cure. PENDING COURT ACTIONS Note: Includes ESA cases that directly involve land use issues, only. Other ESA suits are covered in the Bio-Diversity Subcommittee agenda/meeting. Bold items are new or updated. U.S. District Court cases: 10

11 1. Northeast Canyons and Seamounts National Marine Monument Massachusetts Lobstermen s Association et. al v. Ross, Jr. et al ( ). On March 7, the Pacific Legal Foundation filed suit in U.S. District Court of the District of Columbia on behalf of a coalition of New England Fishermen claiming that Pres. Obama did not have authority under the Antiquities Act to designate National Monuments outside the 12-mile territorial sea limit. They claim that the monument is much larger than necessary to protect the canyons and seamounts. Proceedings underway. 2. Antiquities Act and National Monuments Association of O&C Counties v. Trump et al (17-cv-0280) in U.S. District Court for the District of Columbia on 2/13/17 to invalidate the expansion of the Cascade- Siskiyou National Monument in southern Oregon by President Obama 1/12/17. Obama used the Antiquities Act to add 48,000 acres to the former 6,000-acre Cascade-Siskiyou monument, managed by BLM. The counties claim that the federal O&C Act, which requires that the lands be managed to sustain timber production, supersedes the Antiquities Act. Federal defendants granted extension of time to respond due to changes in leadership under Trump Administration. New deadline for response is June 27, BLM New Land Acquisitions Cause of Action Institute v. Bureau of Land Management (1:17-cv-00154): On 01/24/2017, the conservative watchdog group sued the Bureau of Land Management in U.S. District Court for the District of Columbia, demanding the agency turn over public records related to its acquisition of new lands in Arizona, Nevada and New Mexico. They are seeking purchase agreements, appraisals and communications. Proceedings continue. 4. Definition of Critical Habitat - Threatened & Endangered Species State of Alabama et al v. National Marine Fisheries Service et al (1:16-cv-00593): On 11/29/16, 18 states filed suit in the U.S. District Court for the Southern District of Alabama against the U.S. Secretary of the Interior, National Marine Fisheries Services, U.S. Secretary of Commerce and U.S. Fish and Wildlife Service challenging new federal rules that expand the definition of critical habitat for threatened and endangered species. The proposed rules would allow any area that could potentially host a species to be designated as critical habitat and thus subject to severe land use limitations. Proceedings stayed through June 12, 2017 to allow new federal administration to consider how to proceed. 11

12 5. Desert Bald Eagle Center for Biological Diversity v. Jewell (D. Ariz ) second suit filed by CBD on 10/30/12 to require ESA listing of desert bald eagle distinct population segment (DPS) based on distinctions between desert bald eagle and main bald eagle populations. Ct. Order dated 11/5/14 upholds FWS finding that desert bald eagle is not a DPS and does not qualify for listing under the ESA. On 12/22/14, CBD appealed Dist. Ct. Decision to the 9 th Cir. ( ). On 2/13/17, oral argument was held in San Francisco. No ruling has been issued as of 5/1/ Lands with Wilderness Characteristics Uintah County, Utah v. Jewell (D. Utah ) filed 10/1/10 to invalidate DOI Lands with Wilderness Characteristics program. Numerous parties have intervened or granted amici participation. Hearing on U.S. Motion to Dismiss held on 6/6/14 and Motion denied on 7/1/14. On March 24, 2016, the Magistrate Judge denied the Plaintiffs' Motion to Compel. On April 7, 2016, Plaintiffs filed a timely objection to the Magistrate Judge's Order. (Dkt. No. 266.). Proceedings continue as of 3/9/ Sage Grouse Withdrawal AEMA v. DOI et al (16-cv-00737) filed in D.C. Dist. Ct. on 4/19/16 by MSLF to invalidate the ROD S and RMP S covering 10 million plus acres in ID, MT, ID, NV, CA, OR, UT, CO, and SD for protection of the sage grouse. Briefing continues. Certain deadlines extended to accommodate changes in federal administration. 8. Travel Management Plans WildEarth Guardians et al. v. F.S. ( ) in AZ Dist. Ct. on 1/25/16 to invalidate Kaibab National Forest Travel Management Plans for alleged interference with species habitats, and violation of NEPA, NHPA and ESA. On 6/24/16, the State of Arizona and Office of the Arizona Attorney General filed a motion to intervene. Briefing continues. 9. Energy Fuels - Canyon Mine 12

13 Grand Canyon Trust, et al v. Williams et al ( ) AZ D. Court (Judge Campbell) filed on 3/7/13 to prevent Energy Fuels operation of Canyon Mine on grounds: (1) no new EIS, (2) violates NHPA because area is Traditional Cultural Property and Indian Sacred Site of the Tribe and (3) valid existing rights of mineral discovery before withdrawal not verified. Court refused to grant an injunction pending appeal on 5/27/15. Further action stayed pending related consolidated cases in 9 th Circuit described below. Related consolidated cases in 9th Circuit are: National Mining Association, et al., v. Jewell, et al ( ), Metamin Enterprises USA, Inc., et al v. Jewell, et al ( ), American Exploration and Mining v. Jewell ( ), and Gregory Yount v. Jewell et al ( ). Gregory Yount v. Jewell (D. Ariz ) filed on 1/25/12 seeking to invalidate Northern AZ withdrawal. This case was combined with NMA and NEI v. Salazar (D. Ariz ), NWMA v. Salazar (D. Ariz ) and Quaterra v. Salazar (D. Ariz ). CBD, Grand Canyon Trust, Sierra Club, National Parks Association and Havasupai Tribe granted intervention on 4/20/12. On 3/20/13, Court denied Plaintiffs Motions for S.J. on unconstitutionality of Sec. 204 of FLPMA. By Decision dated 9/30/14, the Court denied all of the Plaintiffs Motions on the above issues and held for DOI that the withdrawal was valid. On 11/25/14, AEMA (formerly NWMA) and NMA, and on 11/26/14 Quatero Alaska, Inc., Yount and Arizona Utah Local Economic Coalition, appealed D. Ct. Decision affirming the withdrawal (9 th Cir. No thru and consolidated). On 4/17/15, States of AZ, MT, UT and NV filed joint amicus brief. Numerous new parties notice appearances. On 12/15/16, oral argument for consolidated cases took place in San Francisco. Navajo Nation submitted amicus brief on 12/29/16. Proceedings continue with most recent actions on 1/25/17. State Court cases: 10. State Prohibition of Mining on Federal Lands People V Rinehart: Pacific Legal Foundation, on behalf of prospector Brandon Rinehart, has petitioned the U.S. Supreme Court to review a decision by the California Supreme Court forbidding Rinehart from engaging in suction dredge mining on federal lands. PLF claims that California s prohibition violates the 1872 Mining Law that declares federal lands are free and open to mining. 13