ࡱ> CEB` %bjbj 44%JJJ8$'F"  =6!F$V'$*h,hz'EEEz''E E Q  :AJk  D'0' ,'d,( , hzVz'z'X'EEEEd D The Ecology Center, Inc. 314 North First Street West Missoula, MT 59802 (406) 728-5733 (406) 542-7347 fax ecocenter@wildrockies.org January 7, 2005 Dean Morgan, Project Coordinator Challis Ranger Ranger District HC 63, Box 1669 Challis, Idaho 83226 Transmitted via email--please acknowledge receipt! Mr. Morgan: These are comments on the Joy/Junior Exploration proposal (T. Montoya letter dated 12/08/04), on behalf of the Ecology Center and Alliance for the Wild Rockies. We are opposed to industrial developments such as are proposed inside the Loon Creek Roadless Area. Additionally, the use of Categorical Exclusions is not proper for such actions inside roadless areas. Would this potentially impact a Water Quality Limited Segment? Has the claimant complied with all requirements from past permits in the area? Has monitoring of past claimant activities been completed? Have results of monitoring of past placer activities in this area shown unexpected impacts? Would connected and cumulative impacts of the exploration activities affect resources and values over an area bigger than the work areas identified? Are there other ongoing activities that would cause cumulative effects in a logically-defined cumulative effects analysis area? Might the dredge mining activity affect an ESA-listed or Sensitive species? If the answer to any of the above questions yes, then the use of a Categorical Exclusion is not proper. The scoping notice is very vague on the 200 feet of overland travel. How would such motorized use off-road be consistent with the Forest Plan and all laws and regulations? What would the damage be to soil quality and soil productivity? Given all the permitting, monitoring, and other administrative actions, the financial implications of the actions could be quite substantial, for taxpayers. The agency's duties under the ESA are not overridden by any rights the applicants may have under the 1872 mining law. The courts are clear in ruling that prohibitions under the ESA must be enforced, even to deny mining operation and: of course, the Forest Service would have the authority to deny any unreasonable plan of operations or plan otherwise prohibited by law. E.g., 16 U.S.C. 1538 (endangered species located at the mine site). The Forest Service would return the plan to the claimant with reasons for disapproval and request submission of a new plan to meet the environmental concerns. (Havasupai Tribe v. U.S., 752 F.Supp. 1471, 1492 (D. Az. 1990) affirmed 943 F2d 32 (9th Cir. 1991) cert. denied 503 U.S. 959 (1992); See also Pacific Rivers Council v. Thomas, 873 F.Supp. 365 (D. Idaho 1995): Pacific Rivers Council v Thomas, 30 F.3d 1050 (9th Cir 1994) cert. denied 115 S.Ct. 1793 (1995)). Overall, the NEPA documents must fully review the past, present, and reasonably foreseeable impacts on all of threatened, endangered, sensitive, and management indicator species. The eventual agency decision must be based on protection of species under the ESA, NFMA, Organic Act, and agency regulations and policies. Before rejecting the no-action alternative under NEPA, or approving the plans of operations (POOs), the agency is obligated to ensure that the public's resources are not being jeopardized by actions pursuant to invalid mining claims. It is law that the mining rights relied upon by the agency can only be based on the discovery of a valuable mineral deposit on each claim to be used by the applicants. (30 U.S.C. 22). The Forest Service cannot presume that the filing of a mining claim means that the claim is valid (i.e. that the rights relied upon by the applicant are rights at all). A mining claim location does not give presumption of a discovery. (Ranchers Exploration v. Anaconda). [L]ocation is the act or series of acts whereby the boundaries of the claim are marked, etc., but it confers no right in the absence of discovery, both being essential to a valid claim. (Cole v. Ralph, 252 U.S. 286, 294-96 (1920)). The Department of the Interior also has rules that rights to develop federal land do not arise without a discovery: The essential conclusion that a mining claim cannot be valid without a discovery has been restated by the courts as well as the Department. Discovery is the sine quo non of an entry to initiate vested rights against the United States. (Davis v. Nelson, 329 F2d 840, 845 (9th Cir. 1964)); . . . that discovery is the prerequisite to the validity of a mining claim cannot be disputed.) Fresh v. Udall, 228 F.Supp. 738, 740 (D. Colo. 1964)). (U.S. v. Bartels, 6 IBLA 126, 127 (1972)). The IBLA also noted that since each claim must contain a valuable mineral deposit, the recovery expected from each claim must not only exceed the costs of mining, transporting, milling, and marketing the particular mineral deposit on that claim but each claim must also bear a proportionate share of the development and capital costs attributable to the combined operation. (U.S. v. Collord, 128 IBLA 266, 287-288 (1994)). Furthermore, the Interior Department requires that the costs of compliance with environmental regulations be factored into the validity determination. (United States v. Pittsburgh Pacific, 30 IBLA 388 (1977); Leshy, The Mining Law, (Resources for the Future, 1987); United States v. Kosanke Sand Corporation, 80 IBLA 538, 546-547 (1973)). There is no evidence in the scoping letter that the mining claim at this site meets these requirements. It must be stressed that any argument by the Forest Service that a discussion of claim validity is beyond the scope of the issues would violate the Administrative Procedures Act. Clearly, documents so fundamentally based on an incorrect and insupportable position is arbitrary and capricious, an abuse of discretion, without observance of procedure required by law, not in accordance with law, and not supported by facts. (5 U.S.C. 706(2)). Since the federal government can review and challenge the validity of any mining claim at any time (Cameron v. U.S., 252 U.S. 450(1920)), it must inquire into these issues at the outset as part of its NEPA and 36 CFR 228 review processes. This inquiry is also required to the Forest Service's duty under the Organic Act, prior to approval of an operation. Again, it is not a case where the issue of claim validity would be a needless exercise. There is considerable uncertainty whether a valuable mineral deposit exists. At a minimum, the agency should detail the costs to operate the projects with the expected revenues from mineral production before further proceeding. The Forest Service cannot restrict its authority based on incorrect and insupportable assumptions that the claim(s) on the sites contain valuable mineral deposits under the mining laws. The agency's duty to protect the surface resources under the ESA, NFMA, and the 228 regulations, as well as its duty to make informed decisions under NEPA, would be violated by such an action. Under 36 CFR 228, the agency should require a financial assurance to ensure that reclamation would be completed in the event of abandonment of the site. The Forest Service should detail the amount, scope, and form of the financial assurance to make certain that such a critical issue is subjected to public review and comment. Thank you for considering our comments. Please keep ouroups on your list to receive all future mailings on this proposal. Sincerely, //s// Jeff Juel And for: Michael Garrity Alliance for the Wild Rockies P.O. Box 505 Helena, Montana 59624     PAGE  PAGE 3 j. / 3 9 ; = 5X\wx Kn3%<%ûzqzhdv>*OJQJhdv6OJQJ]hdv6>*OJQJ]hdv hdvCJhdv56CJ\]aJhdvCJaJhdvOJQJaJhdvOJQJhdvB*ph3f#hdv56B*OJQJ\]ph3fhdv5B*OJQJ\ph3f%hdv5B*CJ0OJQJ\aJ0ph3f*. / ; = 9 t e 2 3 $a$%%*++, !!O#P#$$%h^h%% %!%'%(%2%3%<%L%l%z%%%%%%%%%%%%%%% $&`#$a$&`#$0]0<%l%%%%%%%%%%%%%%%%%%%%%%%%̻h=e0JmHnHu hdv0Jjhdv0JUhdvjhdvUhdvOJQJhdvOJQJhdv56OJQJ\]%%%%0]02 0 0P/ =!"#$% D@D NormalCJOJQJ_HmH sH tH :@: Heading 1$@&56J@J Heading 2$$@&a$5CJOJQJ<@< Heading 5$@&OJQJDA@D Default Paragraph FontVi@V  Table Normal :V 44 la (k@(No List 4 @4 Footer  !.)@. Page NumberLT@L Block Text8]8^ CJOJQJFP@"F Body Text 2 ] OJQJu2B@22 Body Text5:Q@B: Body Text 3OJQJXS@RX Body Text Indent 3^`OJQJPR@bP Body Text Indent 2 ^OJQJJOrJ HTML BodyOJQJ_HhmH sH tH LC@L Body Text Indent ^OJQJD@D Header  !CJOJQJudOd Body Text 21% 8 xH CJOJQJ<Z@< Plain Text CJOJQJBB  Footnote Text CJOJQJ@&@ Footnote ReferenceH* 4./;=9te23*+ +,OP !'(23<Llz00000000000000000000000000000000000000000000000000000000000000000000y00y00y00y00y00y00y00y00y00y00y00@0@0y00y00 y0Hy0L  $$$'<%%%%%%  '!!|$`$`<$`#` 3_#`|#`<#`4,7_<+_ TY^ęTW<%`TW|%`UW*urn:schemas-microsoft-com:office:smarttags PostalCodeB *urn:schemas-microsoft-com:office:smarttagscountry-region8*urn:schemas-microsoft-com:office:smarttagsCity=*urn:schemas-microsoft-com:office:smarttags PlaceType=*urn:schemas-microsoft-com:office:smarttags PlaceName9*urn:schemas-microsoft-com:office:smarttagsplace;*urn:schemas-microsoft-com:office:smarttagsaddress:*urn:schemas-microsoft-com:office:smarttagsStreet H  Z ^ ` h wJ*qy3333333333333333$   Dj1 99(E`rl c4_tl* hh^h`OJQJo( hh^h`OJQJo( hh^h`OJQJo(88^8`o(. hh^h`OJQJo(^`o(()c4_t99۱Dj18ܱ`rl$ ۱ @h OJQJo(Dܱ @h h^h`OJQJo(dv=el@Lexmark Optra R SeriesLPT1:winspoolLexmark Optra R SeriesLexmark Optra R Series4C odXXLetterDINU"4> Lexmark Optra R Series4C odXXLetterDINU"4> ::̑::@Unknowng: Times New RomanTimes New Roman5Symbol3& : ArialU&  BinnerDBritannic BoldK,Bookman Old StyleY New YorkTimes New Roman3z Times?5 z Courier New":U& i'5i'5;42q;HX?=e2The Ecology Center, IncCompaqJJ(       Oh+'0x  ( 4 @ LX`hpThe Ecology Center, IncCompaqNormalJJ2Microsoft Office Word@e@ؠ5!@9!@9!i'՜.+,0 hp|   5 The Ecology Center, Inc Title  !"#$%&'()*+,-./013456789;<=>?@ADRoot Entry FbAF1Table-WordDocument44SummaryInformation(2DocumentSummaryInformation8:CompObjq  FMicrosoft Office Word Document MSWordDocWord.Document.89q