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Date Posted: 12:27:02 07/15/04 Thu
Author: Chris Ralph
Subject: Re: New Forest Service prospecting regulations
In reply to: 's message, "Re: New Forest Service prospecting regulations" on 16:35:07 07/14/04 Wed

Greetings all:
There has been some discussion of the restrictions that will be added as the result of the new forest service regulations. I cannot say about the NFS rangers in the areas you prospect, but I know that there are some in other states who have determined that under this rule that written notice to the FS Ranger is required for metal detecting on NFS lands. At least one ranger in California has determined that metal detecting constitutes a "significant" disturbance under this law, and detecting in that Ranger district requires a formal Plan of Operations, with review for endangered species impacts, etc. - a process that takes more than a year to complete. I do not know about your areas, but most of this law is up to the individual Ranger to decide how he wants to interpret it. A couple years from now, your NFS lands may be in the same situation.

I have developed the following example letter which I am sending to the Forest service as a comment with copies to my senators and congressman. Feel free to copy it and use it for your purposes (if you want, you can send it in with your name attached). Everyone is free to take this example letter and alter it to meet what they want to say, I am just doing this to make it as easy as possible for everyone to participate.

Now is the time for us to make comments. I have been involved with this type of proceedure for a long time - my suggestions is that you send it to everyone. Send it to the Forest service, your local congressman, your senators, Gail Norton, etc. anyone who will listen. Thats how the Sierra club does it - they banket everybody involved with their letters - YOU SHOULD DO THE SAME! If the Forest Service gets 400 letters from Sierra Clubbers in support, and 5 letters from prospectors, believe me, that will be used against us. So I am encouraging everyone to just take a few minutes and send in your comments - we're all in this together!
Chris Ralph

Here's my example letter:

Forest Service, USDA
Attn: Director, Minerals & Geology
Management Staff, (2810)
Mail Stop 1126
Washington, DC 20250-1125

Dear Sirs:
I would like to take this opportunity to voice my opposition to the recent interim revision of 36 CFR 228, published in the Federal Register on July 9, 2004. In addition to the objections noted below, I object that this rule has been promulgated in violation of federal law under the baseless assertion that this significant tightening of the existing federal rule is somehow an “emergency”.
Under the new rules, a “notice of intent to operate is required from any person proposing to conduct operations which might cause disturbance of surface resources”. It would not be limited to only operations that might cause significant disturbances, but ANY OPERATIONS THAT MIGHT CAUSE a disturbance. There are a few very vague exemptions, but the way the rule is currently written a claim owner would be required to file a NOI for walking on a trail across his claim. Small miners and prospectors would be required to file an NOI for camping even one night on federal land. They would be required to file an NOI for digging one panful of dirt. None of these are exempted, and any activity not specifically exempted that might disturb the surface of the ground under the new rule requires the filing of federal NOI paperwork. The rule leaves completely unclear as to if a claim owner would be responsible to file for the possible surface disturbances of multiple use operators on any claim such as fishermen or backpackers – certainly these other casual users have a potential to create a surface disturbance greater than zero. The new rule is "so vague and standardless that it leaves the public uncertain as to how to comply" – which is in clear violation of the standards for federal rules.
Far too much in this rule is left to the interpretation of the individual District Ranger. As a result the rule means one thing in one forest ranger district, and a completely different thing in another, possibly adjoining district. This is because all the definitions of significant are left to the arbitrary interpretation of the ranger and these cannot be known by the claim owner until after enforcement or other action is taken by the ranger. This also presents problems when staff turn over occurs – one ranger may approve the activity as not significant, while the next may deem it significant and prohibit it, citing the claimant for a previously approved activity. In order for the public to be able to comply, reasonable standard of allowable minimal disturbances, and the meaning of a “significant disturbance” must be defined in the rule – so that it can be known and understood by all parties. Over in the Orleans Ranger District in Northern California, the acting District Ranger there is now rejecting all NOI notice letters from local prospectors, saying their hand panning, small scale recreational dredging and hand sluicing operations will create a "significant" disturbance. These small scale recreational prospectors are doing nothing different from what they have done for years, yet with no documentation of any impacts caused by their actions, they are being told they must go through a formal process of submitting a formal Plan of Operations, which will take more than a year to process, and will require a formal consultation, review for endangered species impacts, and not be cheap - the applicant will pay.
This rule unfairly targets small miners and claim owners in an arbitrary and capricious manner. There is little doubt that the impacts of fishermen on threatened or endangered species is 1000 times or more greater than the combined impacts of recreational prospectors simply because of the large number of direct fish kills. Where threatened species are present, they are caught by fishermen, even if only unintentionally, and if the fish swallows the hook deeply, it will die no matter the efforts of the fisherman in releasing it.
In spite of this, fishing is legal in most streams where endangered fish are present, and there is no effort to change that. Overlooking the impacts of fishermen is not a matter of science or potential species impacts, its a matter of politics. In order to fairly apply the policies of this rule to all users of the national forests, all NFS users, including fishermen, campers, backpackers and others would be required to submit a written notice of their intent and a description of potentially surface disturbing actions. Instead, one single group – small prospectors - are being singled out and attacked.
There is little doubt that the resources of the national forest must be managed – the recreational prospectors being specifically targeted in this rule do not want to see the environment trashed. However, there is definitely a point of diminishing returns in regulating smaller and smaller sources – federal NPDES permitting addresses surface disturbances of 217,800 square ft (5 acres) and larger. It certainly seems far beyond overkill that the USFS wants a written notice for disturbances of less than 1 square foot. NFS staff complain that they do not have enough resources, but fail to manage their available resources by considering the astronomical increase in paperwork and related reports that will be caused by this rule. What we need with the final rule is some sort of reasonable allowance for minimal disturbance of the surface without filing federal paperwork, and a well defined set of exempted activities that allow the public to know how what is allowed and what is prohibited. A well defined description of what constitutes a “significant” disturbance must also be included in the final rule so that the claim owner can know how to comply. Under the current rule, the operator must somehow be able to read the District Ranger’s mind in order to know what a significant disturbance is, and know how future rangers, as yet unnamed, may interpret it in the future. The final rule must also address the users of the national forest service equally. An arbitrary bias against one group should not be promulgated into federal regulations.
Finally, the NFS, in their rush to enact this revision, has made no effort whatsoever to meet with or discuss this matter with the stakeholder groups (such as mining clubs and public lands advocates) that are directly affected by this rule prior to promulgating it. This violates a number of administrative policies, and alone is enough that the interim rule should be set aside.
I strongly urge the Forest Service to set aside this disastrous interim rule revision which was promulgated in violation of numerous laws, meet with the stake holders and other interested parties representing small miners and develop a compromise law that will not have to proceed directly to litigation. The NFS, the users of Forest lands and the US taxpayer would be strongly benefited if that were done.
Sincerely,
(feel free to put your own name)

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