Administering Mining Law Operations under Mixed Jurisdiction

United States Department of the Interior
BUREAU OF LAND MANAGEMENT
https://www.blm.gov

April 7, 2022

In Reply Refer To:
3200 (HQ-320) P

EMS TRANSMISSION 04/15/2022
Information Bulletin No. 2022-032

To:                  All Field Office Officials
                       Attn:  Minerals DSDs, District and Field Managers

From:              Assistant Director, Energy, Minerals and Realty Management

Subject:           Administering Mining Law Operations under Mixed Jurisdiction

Recently, some Field Offices have received proposals for mining operations under the Mining Law of 1872 on Federal lands that are under the jurisdiction of both BLM and other agencies. Most frequently, this involves a single operation that includes BLM-managed lands and adjacent lands managed by another Federal agency. Additionally, in many states the state’s Department of Environmental Quality (DEQ) or another state agency may 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 consideration of proposed mining plans of operations under 43 C.F.R. § 3809.411 and § 3802.1-5 and how this relates to projects under multiple agency jurisdiction.

The BLM surface management regulations (43 CFR 3809) do not apply to lands in the National Park System or the National Forest System. BLM is not required by any regulation or policy to wait for an outside agency, such as NPS or the Forest Service, to approve its permit before BLM may issue a decision on a proposed plan. The District or Field Manager, therefore, is under no obligation to delay issuing a decision on a plan solely because the outside agency has not yet issued its decision on aspects of the operation under their jurisdiction. However, the District or Field Manager should cooperate and coordinate with other agencies to ensure that the BLM’s analysis is informed by their analysis and data.

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
(Refer to 43 C.F.R. § 3809.415(a)). BLM’s authorization is subject to the operator obtaining those other necessary authorizations and permits before the operator may begin operations. 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).

BLM’s approval of a plan of operations does not constitute a waiver from other local, state, or Federal requirements (43 C.F.R. §§ 3809.3, 3809.5). Moreover, BLM’s approval of a plan and acceptance of the financial guarantee for an operation that contains both public lands administered by the BLM and lands managed by other agencies does not authorize activities that may occur on the portion of lands managed by the other agencies (43 C.F.R. § 3809.2).

Operations in violation of Federal and state environmental and historic preservation laws constitute unnecessary or undue degradation (UUD) under 43 C.F.R. § 3809.5 and § 3809.415. If an operator begins operations before receiving all necessary State or outside-agency permits, the operator could be subject to enforcement actions under 43 C.F.R § 3809.601 if the enforcing agency has issued a formal notice of violation of their regulations or requirements and BLM is made aware of the applicable agency’s decision.

Please direct any questions to National Mining Law program lead, Kirk N. Rentmeister at
775-453-5514 or krentmei@blm.gov.

Signed by:                                    Authenticated by:
Nicholas E. Douglas                    Robert M. Williams
Assistant Director                        Division of Regulatory Affairs and Directives,(HQ-630)
Energy, Minerals, and Realty
   Management