ACRA has provided comments to the U.S. Forest Service (USFS) about their proposed rule governing locatable minerals in National Forests, expressing support for provisions that clearly delineate responsibilities to comply with cultural resource management laws while expressing concern that recent workforce cuts will impair the agency’s ability to enforce the rules.
USFS’ proposal would change its regulations governing occupancy and use of the surface of National Forest System lands for prospecting, exploration, development, mining, processing, and reclamation under U.S. mining laws. USFS has said the changes are needed to “improve the efficiency and transparency of Forest Service regulation of locatable mineral operations . . . and to minimize . . . adverse impacts on surface resources.” The changes come as the federal government looks to increase the domestic supply of critical minerals, which are needed for a wide range of technologies but which the U.S. often needs to import from abroad.
The current regulations outline three categories of operations: plans of operations, for activities thar “might cause significant disturbance of surface resources;” notices of intent, for activities with some but not significant potential disturbance; and a third category for limited mining operations where no notice is needed. The proposed rules generally maintain the three tiers but provide additional specificity about what constitutes a significant disturbance that requires a notice of operations, and what activities do not require a plan of operations or notice of intent.
The proposal adds additional factors that would require mining operators to prepare and get approval for plans of operations, including all sites that are five acres in size or larger and those where bulk sample removal would disturb 1,000 tons or more of material over the life of the operation. The proposed rule also would require plans of operations for sites that are or become areas of Tribal importance identified in a land management plan or subject to an Indian Tribe’s reserved rights under a treaty or other Federal law, and sites that are “known to contain historic properties, or cultural or historic resources included in, or eligible for inclusion in, the National Register of Historic Places.”
The proposed rule adds additional requirements for operators and agency personnel, including a requirement for meetings before the submittal of plans, at which both operators and the agency would be required to share information about potential historic and cultural resources; and provisions that address inadvertent discoveries.
Pointing out that protecting and preserving America’s national forests is a “critical component of [USFS’] stewardship responsibility to the nation,” ACRA expressed support for language that clarified the need to protect historic and cultural properties and resources, including provisions that define “surface resources” as including “scenic, cultural, archaeological, historic [or] paleontological” resources; language that requires mine operators to obtain an approved plan of operations for lands that are of Tribal importance or known to contain historic properties.
ACRA urged the USFS to consider changes that would ensure the surveying of sites that are not currently known to contain historic resources, noting that “even a location smaller than five acres can have substantial historic or cultural resources, especially in places that are of significance to Tribes.”
Although the proposed rules provide more clarity and certainty to the process, ACRA expressed deep concern that staff reductions at USFS, along with its recently announced plans to move its headquarters from Washington, DC, to Utah and restructure of the agency will make it difficult to properly implement and enforce its regulations: “Throughout the Executive Branch we have seen qualified cultural resources expertise lost in the name of government efficiency. Unfortunately, these moves often have the opposite effect, making permitting processes less efficient as remaining agency staff confront ever-growing backlogs of statutorily required duties.” ACRA urged USFS to “consider the downstream impact of these moves on its ability to provide proper stewardship of our national forests.”