What about NEPA?

Questions about the applicability of NEPA to the Use and Occupancy Regulations were outlined in BLM Washington Office Instruction Memorandum IM98-130. The conclusion is that occupancy approval is a federal action that requires compliance with the National Environmental Policy Act (NEPA) Responding to both the NEPA requirements and the expected workloads at the time the regulations went into effect, the Arizona SO prepared a state wide Programmatic Environmental Analysis [EA] and a Finding of No Significant Impact for 'Notice level' use and occupancy management. The Final EA was published in November 1997, it describes and analyzes the proposed action, consisting of seven typical occupancy scenarios, and the no action option. In preparing the EA, the Arizona SO developed scenarios for operators to examine and laid out standard operating procedures for proposed occupancies. To the extent that operators model their proposed activities as closely as possible on the scenarios, subsequent NEPA analysis would be tiered off of the EA, reducing the amount of time involved.

What about Permitting?

The regulations formalized the need to get and comply with all necessary permits, standards, local building codes, etc., for the phase of activity underway. Previously the need to obtain all necessary permits or to comply with another agency's standards was often simply recognized by BLM, but it was never an explicit condition of approval of operations for operators.

Generally, other agency permits were simply identified as one of the 'recommended' requirements for consideration in a NEPA document [see BLM Manual Handbook section H-1790-1, Chapter IV(C)(1)(b)(2)(b) and Chapter V(C)(3)(e)(5).]

The requirement to have all necessary permits in hand is found at 43 CFR 3715.5(b) & (c). Washington Office Instruction Memorandum IM99-058 addresses the questions of permitting in general and then directly addresses the question of conflicting permitting standards.

In 1996, BLM published the Final Rule concerning Use and Occupancy Under the Mining Laws. The Proposed Rules were published in the Federal Register on September 11, 1992, 57 Fed. Reg. 41846, and the Final Rule was pubished in the Federal Register on July 16, 1996 (Volume 61, Number 137, Page 37115-37130 ). The Final Rule was effective on August 15, 1996.

The Final Rule was codified in Title 43 of the Code of Federal Regulations. Stated briefly, the purposes of the Final Rule are to describe the conditions and procedures for lawful occupancy and use of the public lands for mining related purposes. Congress, BLM, GAO and other federal regulatory agencies have for many years complained of unlawful occupancy and use of the public lands by persons who, although they do not conduct bona fide mining and mining related activities, rely on the mining law as the legal basis for occupancy of the public lands. Although the Final Rule creates another administrative burden for mining companies, it appears clear that the activities of a mining company engaged in bona fide exploration for minerals on the public lands are reasonably incident to mining and are authorized under the Final Rule.

The Final Rule applies to a broad range of activities on the public lands, including: (a) prospecting and exploration activities commenced before location of unpatented mining claims; (b) post-location exploration, development and mining; (c) post-operational reclamation and shutdown; and (d) caretaking activities. § 3715.0-1(b) expressly provides that "public lands" are those which BLM administers. The Final Rule does not apply to state or private lands in which the mineral estate has been reserved to the United States, nor does the Final Rule apply to federal lands administered by other federal agencies, even though the lands may be subject to the operation of the mining laws.

The trigger condition or event for application of the Final Rule is "occupancy" as defined in Section 3715.0-5. Occupancy is, in essence, residence on the public lands. Residency may be full-time or part time and may take a variety of forms, including construction or maintenance of dwellings, barriers to access, fences, signs, construction and maintenance of other structures and storage of equipment and materials. For example, construction and maintenance of a fence around an exploration drilling site constitutes residency which, in turn, constitutes occupancy within the Final Rule. It is important to note that occupancy subject to the Final Rule must be for more than fourteen (14) days during any consecutive ninety (90) day period on the site or any other site within twenty five (25) miles. The ninety (90) day period and the twenty five (25) mile radius provisions were promulgated to assure that users of the public lands would not periodically relocate occupancy sites so as to evade application of the Final Rule.

If a public land user intends to conduct activities which constitute occupancy for more than 14 days, the user's activities must meet the requirements of § 3715.2 concerning allowable activities. Again, a mining company's bona fide exploration, development and mining activities satisfy these requirements. Additionally, the user's activities must meet the requirements of § 3715.2-1 which, in essence, lists valid reasons for occupancy of the public lands, including: (a) protection of exposed, concentrated or otherwise accessible minerals from theft or loss; (b) protecting equipment from theft or loss; (c) protecting the public from public safety hazards related to the presence of equipment; (d) protecting the public from safety hazards relating to surface uses, workings or improvements; or (e) being located in an area so isolated or lacking in physical access so as to require the user to remain on site in order to work a full shift of a usual and customary length. Obviously, occupancy of an exploration drilling site meets this requirement. Light, sporadic prospecting by a single geologist may not meet these additional requirements, unless the prospecting occurs in an isolated area or an area which lacks ready physical access.

If a mining company's proposed use constitutes occupancy, it must consult with BLM in accordance with § 3715.3. Notice and information concerning the proposed occupancy must be included in a notice of intent to operate and plan of operations. The operator may not commence occupancy without BLM consultation. Also, the operator may not commence occupancy without first complying with all state and local permit requirements. The information which the operator must provide to BLM is described in § 3715.3-2, and includes a map which identifies the site, the elements which make the proposed occupancy reasonably incident to mining related uses, a description of how the proposed occupancy meets the requirements of § 3715.2, descriptions of and reasons for barriers to access public passage or access routes and the time during which the occupancy will occur, including a schedule for removal and reclamation on termination of operations.

An occupancy existing in 1996 must have met the requirements of the Final Rule on or before August 18, 1997. If on August 15, 1996, a mining company was conducting activities which constitute occupancy of the public lands, it could continue the occupancy for one (1) year after that date, without being subject to the procedures of the Final Rule, provided that the mining company meets and fulfills the following conditions: (a) the mining company notifies BLM on or before October 15, 1996, of the existence of the occupancy using the format specified by BLM; and (b) BLM determines that it has no pending trespass action against the mining company concerning its occupancy. The Final Rule is unclear whether a trespass action against the mining company concerning one occupancy will bar the mining company's reliance on the one-year grace period in respect of another occupancy. Each existing occupancy must meet the requirements of the Final Rule, and, if BLM determines that the occupancy is not reasonably incident to lawful use of the public lands or that the continued presence of the use or occupancy is a threat to health, safety or environment, BLM will order an immediate temporary suspension of the activities. These provisions concerning existing occupancy and the one-year grace period are found in § 3715.4.

The Final Rule provides that on termination of the occupancy, the operator must remove all structures (permanent or temporary), material, equipment and personal property within ninety (90) days after termination of operations. Property left on the public lands following the ninety-day period becomes the property of the United States and is subject to removal and disposition of BLM's discretion. The operator is liable for costs which BLM incurs to remove and dispose of such items.

The procedures for BLM review and response to written notification, appeals of BLM decisions, BLM enforcement and BLM's authority to sanction or terminate unlawful activities are prescribed in §§ 3715.6-3715.9-1, inclusive.

In 1998, BLM instructed their field offices to properly estimate future workloads, an accounting of the number occupancies on BLM administered lands (See Instruction Memorandum 98-147)

Cases Decided by IBLA that directly focus on the 43 CFR 3715 regulations:

(case Name, Volume Number, Docket Number, Date of Decision)

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