BLM Draft Manual and Handbook Guidance for

Preparation of Land Use Plans

Greetings:

The Northwest Mining Association (NWMA) appreciates the opportunity to review the draft document referenced above. Especially in light of the fact that the Bureau of Land Management (BLM) process to elicit public input on such key planning materials appeared to be so woefully inadequate. For example, we were advised by BLM staff that only 30 organizations and individuals nationwide received a copy of the draft manual and handbook guidance. Such a very small number is disappointing and begs the question of why the BLM has conducted a limited public outreach effort for documents that have such potentially far-reaching implications.

The majority of NWMA’s 2,500 members are very familiar with the statutory basis for all actions undertaken by the BLM, as well as the related regulations, policies, and procedures, because they conduct most of their exploration and mining activities on public lands throughout the West. Our members collectively hold tens of thousands of federal mining claims, some dating back to 1895, the year our association was founded. They represent every facet of the mining industry, including geology, exploration, mining, engineering, equipment manufacturing, technical services, and sales of equipment and supplies.

NWMA’s purpose is to support and advance the mineral resource and related industries. We do this by both representing and informing our members on technical, legislative and regulatory issues, and by disseminating educational materials related to mining. Our organization is committed to fostering sustainable economic opportunities and promoting environmentally responsible mining.

As such, our Association understands the need for an organization like the Bureau of Land Management (BLM) to revise its guidance documents from time to time, we strongly believe that such revisions must satisfy two simple tests. First, all changes must be fully consistent with the letter and spirit of laws passed by the Congress. Second, they should improve clarity of purpose and increase transparency of the process. Our analysis indicates that the proposed changes do not, for the most part, satisfy either requirement.

Specific concerns are outlined below in the comment section, but there is one overarching problem that permeates the entire draft document. It is very apparent that the BLM is consciously attempting to shift its direction from the Congressionally mandated program of balanced, environmentally responsible multiple-use, to one emphasizing minimal-use.

This is being accomplished by invoking the current Holy Grail, “ecosystem management.” Unfortunately, this over-used term remains vague and undefined, which makes it worthless as a practical tool for making decisions. Of greater consequence is the fact that this nebulous paradigm has no basis whatsoever in statute. NWMA urges BLM to refrain from employing the proposed document as a vehicle for current dogma.

NWMA comments on draft revisions to “1600-Land Use Planning Manual”

Draft Page 1-3:

.02 Objectives

C. Opportunities for participation should expand beyond a vague reference to the ‘public’ by specifically including those stakeholders dependent on access to the public lands for their livelihoods. For example, there must be meaningful participation not only by Resource Advisory Councils (RAC), but also grazing permit holders, mining claim holders, and motorized recreation interests, to name just a few.

Draft Page 1-6

.03 Authority

W. Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations). BLM must more thoroughly consider the impacts on local rural communities, which have increasingly significant low-income populations, largely due to policies of the federal government.

Draft Page 1-9

.06 Policy

B. Planning Base

Items 1.-5. These criteria for the preparation of new RMPs are very subjective, and will result in arbitrary and capricious decisions. The criteria must be revised to clearly convey, in concrete terms, exactly what conditions or events will trigger the RMP amendment process.

C. Collaborative and Multi-jurisdictional Approaches to Planning

The discussion regarding collaborative approaches to planning under items C. 1. and C. 2. are well taken. However, under the latter, there must be a clear statement acknowledging BLM’s lack of jurisdiction over setting air and water quality standards per se, or issuing such permits. These areas were clearly delegated by Congress to the EPA, which in turn has the authority to delegate implementation of such programs to state and tribal governments. There is no legal mechanism to delegate such authority to another federal agency.

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I. Introduction

A. The purpose of this Handbook and the need for planning guidance.

BLM must more clearly define what “guidance” means for the benefit of people both inside and outside the BLM. The description provided only says what guidance is not. Planning guidance that preordains a specific outcome is, in fact, a rule and must be developed through the appropriate rulemaking process with full public involvement.

Page 2-10

B. Types of land use planning decisions.

1. Desired outcomes. BLM states that land use plans must identify “goals, standards and objectives,” then goes on to posit, without explanation, that “Standards describe the physical and biological condition or degree of function a resource must meet in order to sustain ecological processes.” This is so vague as to be meaningless, and invites abuse. Again, full and readily understandable descriptions of what these ‘standards’ are and their basis must be part of any new manual or guidance documents.

NWMA also needs to point out that any “planning process” that develops standards and mandatory requirements for achieving the same, are considered a rulemaking under RFA/SBREFA. This view is based on an opinion of the federal OIG. Thus, the new planning manual must include guidance on completing a satisfactory IRFA, since virtually all BLM plan revisions will meet this test.

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2. Allowable actions and uses to achieve desired uses. This section contains a statement about “applicable restrictions that may be necessary to meet goals, standards and objectives” pertaining to subsurface mineral resources. While this may be appropriate for leaseable minerals, it is completely inappropriate for locatable minerals. Such activities are non-discretionary on the part of the BLM and are governed chiefly by the regulations set forth at 43 CFR 3809. However, for NEPA purposes at the land use plan level, it is necessary to identify reasonable development scenarios for locatable minerals, as well as for discretionary uses.

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E. The role of Geographic Sciences and Geographic Information Systems in developing land use and implementation plans.

Regarding the use of GIS, the BLM makes two statements that require clarification. The first is the admonishment for planning teams to avoid compiling more GIS data than is actually needed. Since most planning efforts are hampered by insufficient data and analysis, an example of what exactly is to be avoided would be useful. The second statement is the suggestion of using the Internet to access spatial data. While this is a good idea, there must be criteria established to ensure that such data is valid and can be used with confidence. For example, information retrieved from a USGS site would certainly be deemed acceptable as it has been peer reviewed. However, many independent studies are conducted which do not undergo a rigorous review. They may have been carried out competently and serve their intended purpose quite well, but would not be suitable as a basis for federal land use decisions.

Page 2-27

V. Monitoring and Evaluation

A. Monitoring. This section contains a passing reference to “steps taken to repair a damaged watershed.” Unfortunately, this is yet another example of the inclusion of entirely new planning objectives and management concepts without any discussion, analysis, or definition. For example, just how will the BLM determine that a watershed is damaged and what constitutes a repair? Or, how will arbitrary decisions be avoided in the absence of objective criteria developed as part of a collaborative process? Also, clear direction must be given to ensure that proper sampling/monitoring protocols are utilized by all BLM field personnel, contractors, and volunteers, among others. Such rigor and consistency must be employed if the data collected over the vast holdings of the BLM is to be scientifically valid and amenable to integration.

Page 2-55 Appendix C

J. Fire Management. The discussion on fire management incorrectly states that there are no specific requirements that need to be met under “3. Notices, Consultations and Hearings.” BLM has the legal obligation to comply with air quality standards set by federal, state and tribal authorities. Therefore, BLM must consult with appropriate agencies to ensure that the fire management program complies with air quality statutes, local smoke-particulate management strategies and is protective of human health.

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G. Locatable Minerals, Mineral Materials, and Nonenergy Leasable Minerals. As part of the locatable minerals discussion in this section, there must be a clear statement that any area-wide terms, conditions or other special considerations cannot conflict with the rights granted pursuant to 30 USC 21 et seq., and must be consistent with the terms of the 43 CFR 3809 regulations. The planning process does not, and cannot, act as a legally acceptable substitute for revising the provisions of 43 CFR 3809.

Also, reclamation plans for future mining areas allowed under the Mining Law must be developed on a site-specific basis as part of the operating plan review process. Thus, any goals, standards and objectives identified during the planning process must be performance oriented and not prescriptive, and predicated on applicability to the project being proposed and actual site conditions.

Furthermore, Congress has continually reaffirmed its intention of maintaining mineral development activities on public lands as a high national priority. The BLM must recognize its obligation to support, not thwart, mining as directed by the Mining and Minerals Development Act of 1970, which unambiguously states “[it is the] policy of the federal government to promote development of our Nation’s mineral resources.”

III. Special Designations

The authority for BLM to designate WSAs expired in 1991. Therefore, any planning for new WSAs would be illegal. All such references to prospective activities should be deleted.

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Appendix D

C. Process for incorporating consideration of the social and economic information into land use planning. There are repeated references to the ICBEMP planning effort as a model for the use of economic and social information. NWMA strongly disagrees. First, while the ICBEMP process has blazed many new trails, the only deliverable to date is from the science integration effort. Second, ICBEMP still has no ROD and the Draft EIS has undergone major revisions because of its many inadequacies. In fact, Congress mandated a Supplemental EIS to specifically address serious flaws in the socio-economic treatment. That treatment is still embarrassingly inadequate and biased. Third, issuing an ICBEMP ROD without the legally mandated IRFA/SBREFA analysis will constitute a fatal legal flaw, resulting in an immediate legal challenge. Thus, it can be seen that while some components of ICBEMP have attempted to evaluate socio-economic considerations, the overall effort to date in this subject area has been a miserable failure in terms of credible results. Therefore, all references to ICBEMP must be deleted as it is completely inappropriate to base national planning guidance on a set of documents that are not final and are very likely to be litigated.

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D. Tools and references.

1. General sources of social, economic, and demographic data. This listing must include the Small Business Administration. Also, every state has economic development agencies that track and interpret such data. These sources are valuable in helping assess the true impacts of federal actions on state and local entities, as well as small businesses, which is critical to preparing legally adequate documents under RFA/SBREFA as part of the planning process.

As can be seen, a number of important changes must be made to the draft document to ensure it is truly useful to BLM staff and on firm legal and technical ground, as well as maintain agency credibility with the public. NWMA believes it is imperative for the revisions we have recommended to be made, followed by an opportunity for additional comments from all who have a stake in how our public lands are managed. We urge BLM to make a truly concerted effort to make people aware of the changes being proposed when the revised draft is released.

Do not hesitate to contact us if there are any questions in regard to this set of comments.

Sincerely,

Laura Skaer
Executive Director