Administering Mining Law Operations Under Mixed Jurisdiction

Recently, some Field Offices have received proposals for mining operations on Federal lands under the jurisdiction of both BLM and other agencies. Most frequently, this involves a single operation that includes BLM-managed lands and adjacent National Park Service (NPS)-managed lands. Surface Mining and Reclamation Act (SMARA) Lead Agencies also have concurrent jurisdiction over operations on public lands that are subject to applicable state laws. This Information Bulletin summarizes current Bureau regulation and policy regarding the approval of mining plans of operations under 43 C.F.R. § 3809.411 and how this relates to projects under multiple agency jurisdiction.

The BLM surface management regulations do not apply to lands included in the National Park System or the National Forest System. There is no requirement in regulation or policy that external permits be approved prior to issuing a decision on a plan. The District or Field Manager, therefore, would not delay issuing a decision on a plan solely because NPS, the Forest Service, or the SMARA Lead Agency has not yet issued its decision on aspects of the operation under their jurisdiction. Issuing a decision approving a plan does not authorize the initiation of mining operations if the operator has not yet complied with all other Federal and State laws related to environmental protection, including obtaining any necessary authorizations or permits (43 C.F.R. § 3809.415(a)). Additionally, BLM’s regulations at 43 C.F.R. § 3809.412 specifically state that mining operations may not begin until the operator provides the required financial guarantee for reclamation of BLM-managed public lands. Operating without a financial guarantee is a prohibited act under 43 C.F.R. § 3809.605(d).

If the impacts disclosed by NEPA analysis of a complete plan do not meet the criteria for unnecessary or undue degradation (UUD) defined in 43 C.F.R. § 3809.5, then the District or Field Manager will issue a decision approving the plan (43 C.F.R. § 3809.411(d)(1)). The decision may include necessary changes or conditions of approval to meet the performance standards of 43 C.F.R. § 3809.420 and/or to prevent UUD (43 C.F.R. § 3809.411(d)(2)).

BLM approval of a plan does not constitute a waiver from other local, state, or Federal requirements. BLM approval of a plan and acceptance of the financial guarantee does not authorize activities that may occur on lands managed by other agencies. Operations in violation of Federal and state environmental and historic preservation laws constitute UUD under 43 C.F.R. § 3809.5 and § 3809.415. Beginning operations prior to receiving State or outside-agency permits could result in enforcement action under 43 C.F.R § 3809.601, if the enforcing agency has issued a formal notice of violation for their regulations or requirements and BLM is made aware of the applicable agency’s decision.

Please direct any questions to MLA program lead, Michael Smith at 916-978-4369 or michaelsmith@blm.gov.