SPEAKERS CONTENTS INSERTS
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45–477 CC
1997
HARDROCK MINING ISSUES
HEARING
before the
SUBCOMMITTEE ON ENERGY
AND MINERAL RESOURCES
of the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
SEPTEMBER 22, 1997, ELKO, NEVADA
Serial No. 105–53
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Printed for the use of the Committee on Resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
LINDA SMITH, Washington
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
JOHN SHADEGG, Arizona
JOHN E. ENSIGN, Nevada
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ROBERT F. SMITH, Oregon
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MICHAEL D. CRAPO, Idaho
GEORGE MILLER, California
EDWARD J. MARKEY, Massachusetts
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
MAURICE D. HINCHEY, New York
ROBERT A. UNDERWOOD, Guam
SAM FARR, California
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PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-GREEN, Virgin Islands
RON KIND, Wisconsin
LLOYD DOGGETT, Texas
LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director
Subcommittee on Energy and Mineral Resources
BARBARA CUBIN, Wyoming, CHAIRMAN
W.J. (BILLY) TAUZIN, Louisiana
JOHN L. DUNCAN, Jr., Tennessee
KEN CALVERT, California
WILLIAM M. (MAC) THORNBERRY, Texas
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JIM GIBBONS, Nevada
CARLOS ROMERO-BARCELÓ, Puerto Rico
NICK J. RAHALL II, West Virginia
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SOLOMON P. ORTIZ, Texas
CALVIN M. DOOLEY, California
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-GREEN, Virgin Islands
——— ———
BILL CONDIT, Professional Staff
SHARLA BICKLEY, Professional Staff
DEBORAH LANZONE, Legislative Staff
C O N T E N T S
Hearing held September 22, 1997
Statements of Members:
Cubin, Hon. Barbara, a Representative in Congress from the State of Wyoming
Gibbons, Hon. Jim, a Representative in Congress from the State of Nevada
Statements of witnesses:
Blackwell, Jack, Deputy Regional Forester, Intermountain Region, U.S. Forest Service, U.S. Department of Agriculture
Prepared statement of
Carpenter, John, Assemblyman, Nevada Legislature
Prepared statement of
Drozdoff, Leo, Bureau Chief, Mining Regulation & Reclamation, Nevada Division of Environmental Protection, Nevada Department of Conservation and Natural Resources
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Prepared statement of
Espell, Ron A., Environmental Superintendent, Barrick Goldstrike Mines, Inc.
Franzoia, Michael J., Mayor, City of Elko
Prepared statement of
Gadt, Larry O., Director, Minerals and Geology Management, U.S. Forest Service
Gustin, Gene, Public Land Use Advisory Council to the Elko County Commission
Prepared statement of
Hackworth, Royce, Chairman, Elko County Commission
Prepared statement of
Jones, Martin R., Senior Manager, NV Environmental Compliance, Newmont Gold Co.
Prepared statement of
Lesperance, Anthony L., Elko County Commissioner
Prepared statement of
Miles, Zane, Deputy District Attorney, Eureka County
Prepared statement of
Myers, Tom, Consultant to Great Basin Mine Watch
Prepared statement of
Presley, Edward L., National Director, County Alliance to Restore the Economy & Environment (CAREE)
Prepared statement of
Reid, Hon. Harry, a Senator in Congress from the State of Nevada
Rivers-Council, Jean, Associate State Director, Nevada State Office, Bureau of Land Management, U.S. Department of the Interior
Prepared statement of
Upton, Bill W., Manager, Environmental Affairs, Placer Dome U.S., Inc.
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Prepared statement of
Additional material supplied:
Blaylock, Gregory A., Joseph, Oregon, prepared statement of
Women's Mining Coalition, Elko, Nevada, prepared statement of
Nevada Gold Cyanide Mill Tailings Regulation
Newmont Gold Company, Comments of
HARDROCK MINING ISSUES
MONDAY, september 22, 1997
House of Representatives, Subcommittee on Energy and Mineral Resources, Committee on Resources, Elko, Nevada.
The Subcommittee met, pursuant to notice, at 9:10 a.m. at the Stockman Hotel, 340 Commercial Street, Elko, Nevada; Hon. Barbara Cubin (chairman of the Subcommittee) presiding.
Mrs. CUBIN. I am not used to holding this. I could get carried away here. So if we break out in song, you will know why, and we have the right setting for it as well.
I would like to call the Subcommittee on Minerals and Energy hearing to order. I want to thank all of you for being here today and it is an honor for me to be here.
We are a Subcommittee of the Committee on Resources, from the Congress, and thank you for your hospitality and thank all of you for attending. Let me begin today's hearing by thanking Congressman Jim Gibbons. He is a valued member of this Subcommittee and we are happy to have him as our host here today in Elko, Nevada, in the heart of gold mining country. My brother is a gold miner down at Misquite mine, so I sort of have a sensitive spot for gold mining.
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Although I came from a small town, Casper, Wyoming, it is seldom that we can take time out from our busy schedule in Congress to be able to hold these field hearings, especially in remote areas like Elko, but it is an honor for us to do that and, of course, this is where the folks that are most affected by the government decisions regarding the use of the public lands live, so it is good for us to be able to come back and hear from the very people that are affected by the decisions that we make, just how those decisions turn out in real life when you have to practice what we bring forward.
Unfortunately, as is the case with many field hearings, we do have a schedule to meet, and we have a 1:55 flight, so we have to adjourn promptly at 1 o'clock. I think we will have time, but I would like to ask everyone to keep their comments to the 5-minute period. We have lights here, and if you could do that, that would be greatly appreciated.
STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WYOMING
Mrs. CUBIN. This Subcommittee has held two field hearings in Congress already on the subject that we will be talking about today, and concerning the Secretary of Interior's decision to publish, on February 28 of this year, a final rulemaking bonding of hardrock mining operations on public lands, administered by the Bureau of Land Management. After having to resort to a subpoena, issued by Chairman Young of the full Resources Committee, we finally have all of the documents that we requested in our inquiry from the Secretary, and what we want to know, as of course do you, why the Secretary has allowed this rulemaking to become final after such a long lapse without new public input.
He did this despite requests from me, from Congressman Gibbons, from your Governor and the senior Senator for your State and others to re-propose the rule for new comments. A lawsuit filed by the Northwest Mining Association against the Secretary, alleging abuse of discretion and failure to follow proper rulemaking procedures is in progress in the U.S. District Court, where a ruling on cross-motions for summary judgment is possible by the end of this month. But whatever the outcome of the lawsuit, I believe the Secretary's actions are a strong indicator that we in Congress, as well as in the regulated industry and indeed the public at large, must remain vigilant and insist upon strict adherence to the Administrative Procedures Act and the Regulatory Flexibility Act as well, which mandates analysis of impacts of rulemaking upon small businesses.
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I view the role of Congress to protect the system, while I don't always agree with the decisions that are made by those decisionmakers in the executive branch, and, therefore, I can't always—or really can't intervene on those decisions once they have followed the correct procedure. But my job, and I think the job of the Congress, and this oversight hearing, is to make sure that we protect the procedure, that we protect the policy because if we don't do that, there are several things that can be guaranteed.
No. 1, when the procedure is violated, even if you are on the winning side this time, the procedure will be violated again and you may be on the losing side the next time. Another thing that can be guaranteed, especially in areas where the environment is being debated, that degradation of the environment will occur at some point when the process is abused and violation of private property rights will occur. Therefore, it is my sworn duty to protect the policy and make sure that the agencies abide by those two laws.
Another thing happening in Congress, this time in the Senate, which also bodes poorly for full participation by the States in the full 3809 regulations rewrite, which Secretary Babbitt announced last winter, last week the appropriations bill for fiscal year 1998 for the Interior Department was debated. In the version from the Committee was language to require the establishment of a committee of Western Governors' representatives to report to Congress on the proper roles of States in mining, permitting and reclamation matters.
The report would ensure the Governors a place at the 3809 table, so to speak, but incredibly, the administration threatened to veto if such a provision were to remain. It is astounding to me that the agency should think that the Governors of the States affected should not have a place at the table. The senior Senator from Arkansas led the charge and there was no choice for Western Senators, they said, except to bargain away that requirement in return for not allowing the BLM to publish the proposed 3809 rule until after December 31, 1998, and the truth is, the House of Representatives, in which Mr. Gibbons and I serve, would very likely have balked at a conference committee report, which included the Governor's report requirement as another attempt by the quote, ''subsidized public land miners to stall off necessary reform,'' but not because we haven't tried to set our colleagues from the East straight or from the East on this and other Western issues, but because the folks who want to see the industry leave the U.S. altogether are winning the public relations wars, so the mail to the Eastern representatives and Midwestern Members of Congress is routinely against efforts to restore the multiple use concepts and multiple use for public lands.
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A trip in August, in which the Speaker of the House, the Majority Leader, the Majority Whip, all total about 14 Members of Congress, came back and were educated on Western issues, and the folks from the East and from the industrial Midwest were amazed at what they saw when they compared what they actually saw to what they thought was happening out here on the public lands.
As you in the mining industry well know, increasingly, it is a Superfund or the Clean Water or the Clean Air Act tail wagging the 1872 mining law dog. In other words, so what if irresponsible efforts to reform the 1872 mining law is staved off for another Congress, if air, water or other environmental thresholds are adopted in statute or regulation, which effectively deny permit issuance.
Unfortunately, the Federal laws which the EPA administers and delegates to the States, which demonstrate willingness and ability to implement them, by the way, are not generally within the jurisdiction of the Committee on Resources. A notable exception is the Endangered Species Act. Nevertheless, the genesis of the 3809 regulations is clearly the Federal land policy management—excuse me—FLPMA, I just will quit stuttering. We all know what FLPMA is, but FLPMA does reside in the jurisdiction of our Committee and therefore we can have this hearing.
The Secretary of the Interior does, indeed, have a mandate to prevent unnecessary and undue degradation of public lands. We all agree with that. I don't believe there is a single person in this audience who would deliberately degrade the environment. The 104th Congress voted to establish a 5 percent net proceeds royalty, require payment of fair market value for the services stated within a claim to be patented and establish a trust fund for reclamation of land abandoned by miners, prior to the modern reclamation requirements.
This was called sham reform by the administration, and others. Apparently the sham reform was not enough of a good faith showing by the Congress to warrant further dialog. Instead, in a move that a Washington Post reporter even labeled as stealth mining law reform, Secretary Babbitt has shifted the debate to a forum in which he has the most broad control, but I do pledge to use this chairmanship to see to it that meaningful public input is brought out, that it is received properly and dealt with properly, before the 3809 mining rules or the Forest Service parallel rules at 36 CFR 228 R, revised. So I do thank you for your attendance today and I am going to call on your representative, Jim Gibbons, for an opening statement.
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STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA
Mr. GIBBONS. Thank you very much, and on behalf of all of Nevada, I want to welcome Representative Cubin to Elko, Nevada. As Chairman of the Energy and Mineral Resource Committee, this is an important opportunity for all of Nevada to have a chance to understand just exactly what it is that Congress can do, and should do when it comes to protecting this industry, so I would like to welcome you to Elko, Nevada, and I would like to express my sincere gratitude to you for holding this hearing on the precious—in fact, in the precious metal capital of the world, here in Elko, the silver State, and I applaud your efforts to preserve and protect a vital interest to Nevada and to this country. And I know you, as a chemist, and I as a former geologist, have a deep appreciation and understanding of all of our Nation's mining and mineral industries and it is the reason why we feel this is such an important part of our job as representatives in Congress.
By way of introduction, let me say that Nevada, the Nation's leader in gold production, has 30 operating gold-producing companies here and they employ more than 14,000 people. These people mined an estimated $2.9 billion worth of metals in 1995 in Nevada alone. Nevada alone provides an annual direct contribution to the Federal Government of more than $113 million.
As the second largest employer in the State, mining provides $1.5 billion in personal, business, State, and local government revenues. That is $1.5 billion. Now, these numbers make it easy to realize why mining is such an important part of Nevada and why any change in the laws or regulations governing mining or mining operations must be closely monitored to ensure that the mineral industry is not crippled or endangered by personal agendas of special interest groups or individuals whose only goal is to eliminate all mining activity on public land.
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In a memo from Secretary of the Interior, Bruce Babbitt, to the Assistant Secretary of Lands and Minerals, dated January 6, 1997, Mr. Babbitt stated clearly, quote, ''It is plainly no longer in the public interest to wait for Congress to enact legislation that corrects the remaining shortcomings of the 3809 regulations. To that end, I direct you to restart this role-making process by preparing and publishing proposed regulations,'' end quote.
Well, to Mr. Babbitt, I would say that Article I, Section 1 of the Constitution states that all legislative powers herein granted shall be vested in a Congress. Democracy and our Constitution require that the people be bound only by those policies enacted by our elected lawmakers, not appointed bureaucrats. Since the New Deal, however, Congress has routinely lost the power to make laws and it has lost that power to unelected and unaccountable bureaucrats. This must stop and the legislative powers must be returned back to Congress allowing decisionmakers to be held accountable to their constituency.
If we want to find recent administrative actions doing great harm to our political process and to the people of Nevada, we do not have to look very far. Clearly, evidence of this loss of power and administrative lawmaking were recently felt by this great State when the Secretary published new rules on BLM hardrock bonding requirements.
I submit to this Committee that the public was not allowed to voice their opposition or their concerns about the substance of the final version of the rule. Five-and-one-half years before the administration's final enactment of the rule, the intention of the Department of Interior was to create legislative policy. I believe their actions violated the Administrative Procedures Act and were a disservice to the people of America.
Does anyone in the Department of Interior remember the preamble to our Constitution which states, ''of the people, by the people and for the people.'' The purpose of this hearing, of course, will be to explore the Department of Interior's effort to revise the hardrock mining surface management regulations, 43 CFR 3809, or simply put, the 3809 regulations.
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It is my intention today with your support to hear from the people of Nevada, the citizens of this country, the industry, the State and then the Federal Government on why we need to change 3809 regulations. And if indeed we do, then how best to go about changing and implementing the new regulations. It is my intention as a Member of Congress not to be caught off guard when the Department of Interior makes their changes.
I encourage public comments on this regulation so that I can use every power available to me to ensure that the adage, quote, ''for the people,'' end quote, is held true in its spirit.
Madam Chairman, I look forward to this hearing today and I would like to thank you and everyone for taking time out of their busy schedules to participate in our government process. Thank you and I would yield back any balance of time that I have.
Mrs. CUBIN. Thank you, Mr. Gibbons. Now that the light is on, I could even read his statement. I have just reached the age when I have learned that I can't see very close anymore so forgive me for my bit of stuttered speech.
Now we will begin with the testimony on the first panel and first I will call on Ron Espell—oh, excuse me, no. We are honored today to have a representative from Senator Reid's office with us for a brief statement, and so I will ask Karen Denio if she will please give the Senator's testimony for us.
STATEMENT OF HON. HARRY REID, A SENATOR IN THE CONGRESS FROM THE STATE OF NEVADA
Ms. DENIO. Thank you very much. My name is Karen Denio. I am rural coordinator for U.S. Senator Harry Reid, senior Senator from the State of Nevada. Senator Reid has asked that I read his statement into the record and his personal statement is as follows:
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Last Thursday, with the assistance of other Western Senators, I fought off a major challenge to Nevada miners as the interior appropriations bill came to the floor by fending off attempts by perennial foe Dale Bumpers to attach legislative riders to the bill calling for a net royalty and severance tax on mining operations.
Additionally, we successfully negotiated a 1-year moratorium on any new 3809 regulations. My amendment will require the Secretary of the Interior to wait until at least November 15, 1998, to publish proposed regulations on the 3809 hardrock mining regulations. After that, we can use the Reid-Nickles Regulatory Reform Act to stop anything particularly offensive or dangerous for Nevada miners.
This past February, Secretary Babbitt stated in an interview on National Public Radio that he was going to rewrite the current mining laws. His most recent attempt at revising 3809 regulations is another back-door approach to mining law reform. This effort illustrates the Secretary's frustration with not getting mining law reform done his way.
The administration just does not understand the process that Congress has undertaken to reform the 1872 mining law. Reasonable mining law reform must come through cooperation with Congress and Western States, not through covert actions by Federal bureaucrats. I fear a negative impact on mining operations on public lands. The Secretary's prescription for mining law reform is a one-size-fits-all approach. He wants to direct uniform Federal standards for a goal placer operation in Alaska, surface copper mines in Arizona and underground gold mines in Nevada. As any miner knows, this will not work.
In many ways this proposal is a direct attack on the economy of Western States, since the vast majority of Federal lands are located in the West. As you know, Nevada has 87 percent of its land under Federal control.
According to the Interior Department, the mining law revision process has been on hold since 1993 because Congress has failed to act on the matter. I resent the implication that Congress has not considered mining law reform. Maybe it was not to the liking of those who would like to destroy the industry. I have written several bills since I have been in the Senate, including a 1994 measure that passed both the House and Senate. Additionally, the 104th Congress passed legislation amending the mining law, however, it was vetoed as part of a larger action.
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When mining law reform takes place, Congress should do it with the cooperation of the Western State governments. The issue of mining reform has been one of the most hotly debated subjects in Congress for the past 7 years. Congress has considered many controversial amendments, and after debate, close votes have occurred. The Secretary continues to push his agenda on this Congress and I am proud of the role I played in ensuring that no amendments, bills, or bureaucratic shenanigans that would have been disastrous to hardrock mining succeeded.
What is of most concern to me is the Secretary's efforts to bypass the Congress on this most important matter. In the past, the Secretary has called for collaborative resource management, yet he leaves the Western Governors out of the process. It is the Western State economies that are most affected by the Department's actions. The Department of the Interior wants to create new and onerous regulatory requirements that may conflict with rules already in place in States where mining occurs.
Since the BLM first wrote the 3809 regulations back in 1980, States have made vast improvements to their laws governing mining, reclamation, and environmental remediation on Federal land. Nevada's laws serve as a model for the rest of the world. I fail to understand why we need another set of burdensome regulations from the Federal Government when our State laws already protect our resources and promote our economy. Thank you.
Mrs. CUBIN. Thank you, Karen, and will you please send our regards and our thanks to the Senator for his testimony?
Ms. DENIO. I will.
Mrs. CUBIN. Now we are back on track. So the first witness we will call on today is Ron Espell, Environmental Superintendent for Barrick Goldstrike Mines, Inc.
Mr. ESPELL. Thank you very much, Madam Chair.
Mrs. CUBIN. I would like to call your attention to the traffic signal down here.
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Mr. ESPELL. I will have to do this without a mike.
Mrs. CUBIN. We will get you a mike. Is that working?
We will start your 5 minutes over. You will know when your time is up because the red light will be flashing in your eyes.
STATEMENT OF RON A. ESPELL, ENVIRONMENTAL SUPERINTENDENT, BARRICK GOLDSTRIKE MINES, INC.
Mr. ESPELL. Thank you very much for the opportunity to appear at this hearing of the House Subcommittee on Energy and Mineral Resources today to discuss the regulatory framework that governs hardrock mining on Federal lands. My name is Ron Espell. I am currently the Environmental Superintendent for Barrick Goldstrike Mines, which is the owner and operator of the Goldstrike Mine on the Carlin Trend in Eureka County, Nevada. I have worked at Goldstrike since 1994.
My responsibilities include assuring that Goldstrike has the proper environmental permits, including approvals from the Federal Bureau of Land Management and the State of Nevada. Before coming to Goldstrike, I worked for other mining companies, consultants to the mining industry and Nevada's Bureau of Mining Regulation and Reclamation, so I have many years of experience with mine regulation and permitting.
Mining activities on Federal lands at the Goldstrike Mine are regulated by BLM, through a plan of operations that was initially approved in 1987. Mining on public and private lands is subject to a mining permit from the State of Nevada that was initially issued in 1991, after Nevada adopted new mining regulations in 1989. Our BLM plan of operations has been amended several times and our Nevada mining permit will be renewed this year.
At Goldstrike, we have a significant amount of experience with the existing process for permitting mining operations. I want to focus my testimony on several key points about the current regulations and explain why, from my perspective, changes are not necessary.
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One, cooperation between Federal and State regulators is essential. An essential element of any effective system for mine regulation is cooperation and respect between BLM and State mining regulators. Because a mine that operates on public lands must be permitted by both agencies, the possibility exists for conflicting or inconsistent requirements. We have been fortunate that both the State of Nevada and the local BLM district recognize the importance of cooperation. It has been our experience that the Nevada State agencies work closely with BLM and the mine operator, to assure that requirements are consistent and to avoid duplicative requirements, including inspections.
BLM's existing 3809 regulations encourage Federal/State cooperation through cooperative agreements and by provisions which explicitly incorporate State reclamation and environmental standards into BLM's process for reviewing and approving plans of operations. Most importantly, by requiring compliance with State standards, the present 3809 regulations provide an evolving standard which automatically incorporates changes in State laws and regulations.
Two, BLM should not develop independent performance standards. The second point that I would like to make is related to my first concern about Federal/State cooperation in permitting. BLM should not develop separate environmental or reclamation performance standards. As I understand it, Secretary Babbitt has asked the BLM task force that is looking at 3809 regulations to consider whether BLM should develop additional environmental or reclamation performance standards.
We believe that BLM should not develop additional performance standards for two reasons. First, reclamation standards must be tailored to the site where mining occurs and the type of mining that is proposed. Reclamation on the Carlin Trend will require different methods and different standards from reclamation in the Arizona desert or the Montana mountains. Reclamation at an open pit copper mine is different from reclamation at an underground gold mine. A one-size-fits-all standard imposed from BLM in Washington simply cannot accommodate the many different environments where mining will occur. Instead, BLM should look to the reclamation standards developed by State and local governments who are much more familiar with local conditions and land uses.
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Second, separate performance standards developed by BLM will likely lead to inconsistent requirements. Every mining operation is subject to a long list of permitting requirements to prevent pollution of air and water and protect the environment. For example, water quality standards are developed by States under the authority of the Federal Clean Water Act and implemented through permits. There is no reason for BLM to second guess existing water quality standards or permits. This is particularly important in the area of ground water, where Congress firmly stated its intent to leave groundwater protection to the States. Rather than create new requirements, BLM should simply incorporate State water quality standards or permit requirements into its approval of a plan of operations. Similarly, every Western State has a modern mining reclamation law.
BLM should not attempt to duplicate those requirements. I do not believe that the Interior Department can demonstrate that any changes are needed to BLM's current 3809 regulations. I hope that these oversight hearings will add to the record and encourage the Department to avoid major changes. Thank you very much for the opportunity to give this testimony.
Mrs. CUBIN. Thank you very much. Our next witness will be Bill Upton of Placer Dome U.S. Inc.
STATEMENT OF BILL W. UPTON, MANAGER, ENVIRONMENTAL AFFAIRS, PLACER DOME U.S., INC.
Mr. UPTON. Madam Chair, Congressman Gibbons, my name is Bill Upton. I am the Manager of Environmental Affairs for Placer Dome U.S. Incorporated. In this capacity I have direct and oversight permitting responsibilities for PDUS. Placer Dome U.S. Inc. operates three large gold mines in the United States, two in Nevada and one in Montana, and conducts extensive mineral exploration throughout the West, including Alaska.
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Our United States operations employ a total of 955 people. We employ people in Nevada, Montana, Alaska and Kentucky. Placer Dome U.S. has a long history of permitting and operating on public land in Nevada and Montana. Our most recent permitting experience is the expansion of our existing mining operations. In Nevada, Cortez Gold Mines began operations in 1969 and is located primarily on public land administered by the BLM and Bald Mountain Mine began operations in 1981 and is primarily located on private land but also operates on some BLM administered land.
All of our operations are permitted under the requirements of 43 CFR 3809 and have undergone extensive environmental reviews pursuant to the National Environmental Policy Act. Permitting under 3809 and NEPA has been ongoing at Cortez Gold Mines since 1990. The BLM completed their first Environmental Impact Statement for Cortez in 1993. Subsequent discoveries led to the permitting of our Crescent Pit and preparation of another EIS for our pipeline pit and number 2 mill expansion. The BLM is currently completing an Environmental Impact Statement for the most recent Cortez Plan of Operations.
The BLM completed an EIS for the expansion of Bald Mountain Mine in 1995 and most recently permitted Bald Mountain's LJ Ridge expansion. At Golden Sunlight in Montana initial mine development was permitted in 1981 under the Montana Mining and Mineral Policy Act. In 1995 the mine submitted an application to expand operations and the Montana Department of Environmental Quality, as the lead agency, and the BLM as cooperating agency are completing an EIS for the expansion. The remainder of my testimony will center on the BLM's review of possible changes to 3809 regulations. PDUS had the opportunity to tour several members of the BLM task force conducting this review at our pipeline project in April and at Golden Sunlight in early September. The task force saw firsthand how many of the issues they are concerned with in 3809 are being managed effectively under the current regulations in strong State and Federal regulatory programs in these States.
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At Cortez, they saw the notice level exploration drilling operations and the controls incorporated in these operations to prevent unnecessary and undue degradation. They walked over areas where similar activities had been conducted the season before and which had already been reclaimed and which were nearly indistinguishable from the adjacent undistributed land. They saw the comparatively low density and intensity of disturbance typical of this activity. We explained to them how important Notice Level exploration is to our long-term planning and survival, how it provides the opportunity to gain timely access to prospective areas to further assess their mineral potential before investing the enormous amount of time and money required to permit plan level disturbance.
At Golden Sunlight, the task force observed the importance of incorporating site-specific conditions into the reclamation plan and how this had been accomplished through the existing State and Federal permitting program in Montana. They also saw the distinct differences in site conditions between Golden Sunlight and Cortez. Unlike many other industries, mining can only occur where the resource is located.
The contrast in site conditions between Golden Sunlight and Cortez and the resulting differences in their reclamation plans are a good example of why one-size-fits-all performance standards would be inappropriate for hardrock mining given the wide variety of site conditions within which it can occur.
Pit backfilling, including the enormous expense in dollars and resources to accomplish it, the potential adverse environmental impacts associated with it, and the loss in potential mineable resources it would result in were discussed at both operations with the task force. The task force learned first hand how this issue was included in the alternative analysis during the permitting of both operations and therefore is already receiving detailed evaluation as part of an existing State and Federal permitting requirements.
Most importantly the task force saw how permitting and regulation of hardrock mining is being effectively coordinated with State government both in Nevada and Montana. They saw how the permitting role of these States on issues concerning air quality and water quality and quantity is being coordinated with BLM and effectively carried out in a manner protective of public lands.
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In summary, PDUS believes the regulations are working to protect public lands. The current 3809 complemented by strong State regulatory programs have provided for and will continue to provide for the adequate protection of public lands. We have not seen any evidence to show additional regulations is warranted. The examples I've provided from our operations in Nevada and Montana are testimony to the fact that current regulations are comprehensive and when properly implemented in coordination with State programs adequately protect the public, as well as private lands. Thank you and I will do my best to answer any questions.
[The statement of Mr. Upton may be found at end of hearing.]
Mrs. CUBIN. Thank you very much. Can you folks in the back hear the testimony? Hold it, if you will, please, Mr. Jones, hold the microphone closer to your mouth.
Mr. JONES. How is that? Is that better? OK. That is better.
Mrs. CUBIN. Thank you. Do you want to use the stand there, or hold it, it doesn't matter, whatever you are most comfortable with.
Mr. JONES. I will hold it, that is fine.
Mrs. CUBIN. Our next witness is Martin Jones, Senior Manager of Nevada Environmental Compliance with Newmont Gold Company.
STATEMENT OF MARTIN R. JONES, SENIOR MANAGER, NV ENVIRONMENTAL COMPLIANCE, NEWMONT GOLD CO.
Mr. JONES. Good morning, Madam Chair, Congressman Gibbons, my name is Martin Jones, Senior Manager of Nevada Environmental Compliance for Newmont Gold Company. I am responsible for overseeing compliance for Newmont's Nevada operations with all Federal, State and local environmental laws, including laws relating to exploration, operation and closure. Newmont is the largest gold producer in North America.
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Since 1965, Newmont has engaged in mining and processing on the Carlin Trend in north central Nevada. Today, Newmont Gold's domestic operations remain centered in northern Nevada. In the last 15 years, the U.S. gold mining industry has emerged as an internationally competitive industry and has accomplished this without the need for government loans, subsidies, bailouts or tax breaks. In fact, gold mining companies in most cases themselves have paid for the community and other infrastructure needs necessary to support their operations during a time when environmental regulations have been ever increasing, and it has done this while paying its employees wages that are higher than any other segment of American workers.
Over two-thirds of our nation's gold production takes place in Nevada. Gold mining generates over 51,000 jobs in Nevada, and precious metal producers paid over $141 million in Nevada State and local taxes in 1995. Newmont and other mining companies work hard to ensure that their operations on public and private lands are conducted in an environmentally responsible manner and in accord with all applicable State and Federal regulatory programs. These programs are numerous and are scrutinized by many agencies, including the Nevada Divisions of Environmental Protection, Water Resources, and Wildlife, the U.S. EPA, Fish and Wildlife Service, Army Corps of Engineers and the Bureau of Land Management.
We recognize and accept our obligation to properly close and reclaim mining sites after their useful life. In the late 1980's, Newmont worked closely with the Nevada Mining Association, Nevada Division of Environmental Protection and the Sierra Club to develop a State reclamation program that would ensure reclamation of public and private lands.
Today, we will focus on the BLM regulations applicable to hardrock mining on public lands, known as the 3809 regulations, the basic substance of which has been in place since 1980 and has proven more than adequate to protect public lands. Despite the rhetoric of mining industry critics, we have not seen evidence indicating that these regulations have led to significant problems or that regulatory changes are necessary. This is especially true for States like Nevada, that have comprehensive environmental mining and reclamation and regulatory programs.
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In 1992, BLM conducted a comprehensive review of the 3809 regulations and concluded that the centerpiece of the program, a rule that prohibits unnecessary or undue degradation of public lands, was fully adequate. As the Committee is no doubt aware, Secretary of the Interior Babbitt last spring appointed a task force to review the 3809 regulations and proposed revisions, including revisions that would impose prescriptive and inflexible nationwide standards.
In connection with the task force efforts, Newmont submitted extensive comments. I ask that these comments be made a part of the record for this proceeding and will very briefly summarize them for you. Under the existing 3809 program, persons wishing to engage in mining on public land must submit a plan of operation for approval by BLM. Before approving the plan, BLM undertakes a comprehensive assessment of all potential environmental impacts and if any are found, the plan of operation is modified as appropriate.
In addition, operations in Nevada must comply with standards imposed by the State: Mining, reclamation and wildlife protection regulatory programs. These programs ensure that the design and operation of each facility is appropriate for the physical, geological and hydro geological condition at each site. Tailoring operation and reclamation plans to site-specific conditions is essential.
Hardrock mining involves many different minerals in mining and processing techniques and occur in a widely varying environmental setting. Unlike other industries, operators of mines cannot locate their mining sites in settings where compliance with national design standards might be feasible. Mining can only take place where the minerals are located. For these reasons, a host of authorities, including the National Academy of Science, EPA, the Western Governors Association, have recognized that site-specific flexibility is an absolute necessity for regulations affecting hardrock mining.
In conclusion, Newmont believes the 3809 program has worked well to protect public health and the environment and public lands, a conclusion shared by the Western Governors Association. Despite their assertions to the contrary, environmental groups have failed to identify any but a small number of isolated instances where modern mining operations on public lands subject to modern environmental programs have led to significant environmental problems that could have been avoided by more prescriptive national standards.
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Instead, critics of industry focus on environmental problems existing at historic sites, while mining occurred long before the advent of 3809 regulations. In Newmont's view, the current regulatory scheme should not be altered unless BLM can show that significant real world problems exist that cannot be addressed under the existing program. Certainly no such showing has been or in our view could be made with respect to public lands located in Nevada. Thank you.
[The statement of Mr. Jones may be found at end of hearing.]
Mrs. CUBIN. Thank you, Mr. Jones, and now if you don't mind, we would like to just ask each one of you a few questions and we will start with Representative Gibbons.
Mr. GIBBONS. Thank you, Madam Chair. First, let me ask for all of you, maybe, a brief comment on industry standards in terms of reclamation, environmental practices, et cetera. Do you feel that the industry standards today with regard to those issues, whether it is environmental protection, reclamation, habitat protection, have been met and are constantly being reviewed within the industry itself to step forward at the proper time to advance both the industry and the environment within your operations?
Mr. UPTON. Yes, I believe they do. I know through our trade associations, the Nevada Mining Association in particular, we share a great deal in terms of our own individual standards within companies and between companies, and share that work that we are doing collectively, and I think, yes, the standard, the industry standard, is at a level that challenges or at least represents well the regulatory standards.
Mr. ESPELL. Just to respond to that a little bit differently, I am also, aside from my duties at Barrick, I am the Reclamation Subcommittee Chairman for the Nevada Mining Association. We have both, through the NMA and through the individual companies, under the current regulatory framework, there is enough flexibility that we have a very cooperative agreement and a working relationship between the Federal regulators that the BLM—and the State agencies, where we work together to identify reclamation needs and objectives, and in a very cooperative spirit come up with advancing techniques to be able to meet those needs and under the current system, those sorts of things are possible and are being done.
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Mr. JONES. To give you the short answer, yes. Newmont endorses the Nevada standard. We apply that standard worldwide. It doesn't matter if we are in Peru or Uzbekistan or Indonesia. We find the Nevada standard for our industry provides a balance between economic factors and protection of the environment.
With respect to 3809, the definition of undue and unnecessary degradation allows for changes without having to rewrite it, I think this is the keystone of 3809, and so allows for an evolution of techniques and technical problems, resolution of technical problems. As we get better at reclamation and get better at operating, then those standards become commonplace in the industry and the 3809 is then updated by applying the unnecessary and undue degradation rule.
Mr. GIBBONS. Thank you. Now, if the industry itself has certain standards that are met, and perhaps, as you have indicated, they are uniform throughout most companies that operate mining operations here in Nevada to meet those permit requirements. Let me ask you just a two-part question. One, if they do have, and they do meet, and this is not something like re-inventing the wheel, as we have done on these standards, why does it take so long for a mine to get permitted here in Nevada and how can we, as a State, and you as an industry, work with the BLM to actually expedite that process, because, after all, we also want to hear solutions, not just complaints. We want to hope that through this process, you can help us communicate with the bureaucracy in its reevaluation of 3809 to make better, but better for everybody, not just for one group or one special interest. So my question would be, if you didn't understand it, I would repeat it, but I hope you understood it.
Mr. JONES. I think I do. I would like to think that we hold ourselves to a higher standard than other mining companies, but I am sure I would get disagreement here. Permitting takes long, and that is probably some of our frustration with the process. It does take long lead times to permit. We found at Newmont that working with the BLM district to let them know our upcoming schedules, what we have on the agenda, so that they can clear their schedules to work on the documents, and then we hold meetings when we finish, to discuss what went right, what went wrong, where can we streamline the process to make it more efficient.
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I don't think, including the BLM review of notice level activities, that is now being required, has helped because we have now taken people who are overworked and don't have enough resources, and we have burdened them with more work. I think that we should consider giving BLM more resources to help us with the permitting process.
Mr. ESPELL. To add to that a little bit differently, some of the things we have seen that add to the overall timing of the permitting process is any time there is a duplication in the Federal permitting process, duplication of things which are already permitted and evaluated under the current State programs, we have been working very closely with the Nevada State office of the BLM to identify the sources of duplication and develop MOUs between the State and the BLM in order to be able to try to avoid those duplications. The changes that are proposed in the 3809 regulations actually go countercurrent to that philosophy and incite more duplication as opposed to trying to encourage a lack of duplication of the programs.
Mr. UPTON. Well, yes, sir, our permitting process has been lengthy, and for many reasons, understandably so. I think our biggest concern is the 3809 rules being contemplated would only increase that. The bonding regulations that were adopted have again added to staff time at the agencies to where they are now required to spend much more time reviewing notice level activities and the bonding requirements now in place for those and so it is just a plethora of additional review and requirements and time on the part of the staff that in turn builds time for us on the other hand, too, to get them the information they need, so it is both, yes, we have had lengthy processes, but we see what is being talked about as only aggravating that and exasperating an already overload situation with agencies.
Mrs. CUBIN. Thank you very much. I just have a couple questions. Mr. Upton, I will start with you. You mentioned in your testimony that one size-fits-all site requirements won't work for hardrock mining. And there will be testimony later on today from people who think that the Federal Government shouldn't own any lands, but since they do right now, what I want to ask you is what should the Federal role actually be?
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I think that most of the people that I know, that I work with, think that the States can do, will do, and do a good job of protecting the environment. In Wyoming I know environmental standards are higher, many times, than Federal standards, and their own State legislature has imposed that level. So what should the Federal role be, and what should the State role be and what should the role of the industry be?
Mr. UPTON. Well, we support a strong oversight role by the Federal agencies, but we think that the site-specific conditions that occur within a State, and the complexity to those clearly lie with the State agencies, and even the local government agencies to have a strong role in determining the permit requirements and the compliance requirements for those operations, and that, yes, the Federal Government has a role in providing oversight and consistency between States, but on the same hand, it is important to have those site-specific conditions recognized in the permitting process and compliance aspects of an operation, so that we are dealing with the proper aspects out there in that sense.
Mrs. CUBIN. So you said, and I don't want to be putting words in your mouth, I want your opinion. You said that they should coordinate and see that there is consistency among the States, and did you say set standards?
Mr. UPTON. No, I said the States should be in the standard setting role.
Mrs. CUBIN. In a couple words again, what should the Federal role be?
Mr. UPTON. Oversight in the context of looking at the standards between States, and applying and assuring some reasonable level of consistency between States.
Mrs. CUBIN. So is it your opinion, and maybe you don't know, because I don't, I have to vote on all the States issues, but is it your opinion that the State standards are adequate to protect the environment in land, water and air?
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Mr. UPTON. In the States we operate in, yes.
Mrs. CUBIN. OK. Thank you very much.
Mr. Espell, you mentioned in your testimony that you have had pretty decent experiences in dealing with public land managers who you work with and so a lot of times I think when I am saying things that are critical of the Federal agencies, I don't make it clear that generally I am speaking of the Washington bureaucracy and how their decisions negatively impact people on the land.
My experience has been uniformly, when I am dealing with local land managers, that generally they do a good job, they care about the land, they are our neighbors and they are our friends and family, and I think you referred to that somewhat. I mentioned also in my opening statement the leadership trip to the West and how the things we had learned there, there were three things that we wanted, three messages we wanted them to go home with. That was the States can, will, and do a good job of regulating and enforcing environmental statutes; that resources can be developed on the public lands as well as the private, of course, and still allow us to be good stewards of the land and that multiple use is good land management policy.
Could you just go into a little bit more for me, what sort of problems you have had with—maybe just give a couple examples, of Federal dictates that aren't good for the economy, good for the resource, good for anything, where there may have been a little bit of disagreement at the local level.
Mr. ESPELL. Sure. I think Nevada is probably the best example, although my experience has been completely in Nevada. From what I have seen of other programs, Nevada has an excellent working relationship between the State agencies and the BLM, and other Federal agencies, which, you know, reside here, the State offices of those agencies. That working relationship and that cooperation actually extends all the way to the initial development of the State programs, which were based on consistency between the State programs and the Federal programs.
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In Nevada, for example, a reclamation permit application for the State and the BLM's plan of operations is the same application. It is a one-stop shopping kind of an idea. That cooperative agreement, which reduces the permitting time and the burden on the companies, is effectively destroyed by changes in the Federal regulations, which then drive inconsistencies between the Federal programs and the State programs, so, therefore, what I see is where the model should be what we have developed here in Nevada, for a cooperative agreement between the Federal and State programs, where the differences in requirements are transparent to the operator, the program is developed in accordance between State and Federal programs. Anything that is done on the Federal level, seems to be trying to do just the opposite to separate and provide inconsistencies between the programs.
Mrs. CUBIN. Thank you. Mr. Jones, does your company go beyond what is required in the permits on reclamation and repairing maybe old damage? I think Mr. Upton's company has just recently gotten an award for that and I guess what I am trying to find out is do other companies do that as well, do they invest money, really beyond what is required of them, to try to be good neighbors or do they not?
Mr. JONES. Yes, ma'am. We also received an award in 1995, the Governors Award for reclamation excellence for riparian habitat upgrading. We worked with local ranchers and our TS ranch to improve the habitat. Last year, we were involved in a cooperative effort to reseed fire-burned, fire-damaged acres, and the benefit is to wildlife and to the ranchers, and to us as a landowner, in that it made the land more valuable. We in mining recognize that we have impacts on the Earth, and that is the nature of our business, and we accept responsibility for this. And in order to compensate for those impacts, it is necessary to do certain things, and we take that on and we do those things.
Mrs. CUBIN. Well, thank you. I gave a pitch for Barrick and I didn't know you had won an award. Congratulations, I am glad you have, but I guess I can't leave Placer out—excuse me, I can't leave out Barrick, right.
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Mr. ESPELL. Yes, we have several different programs going on in the State. The one we are currently involved in is a restoration project at the Marys River, slightly east and north of Elko, in improving riparian habitat, actually reestablishing the cutthroat trout habitat in the upper regions of the area of the drainage, which actually, the head water is up in the Jarbidge mountains. Previously, there has been culverts and different things that have been put in the river that we are working with with the BLM and Trout Unlimited to actually engineer stream restoration.
Mrs. CUBIN. I didn't know there were cutthroat trout out there. I thought Wyoming was one of the last places, beautiful places on Earth that had cutthroat trout.
Well, Bill, since I goofed up on you twice, would you like to tell us about your award?
Mr. UPTON. The award that Placer received was for reclamation in our Alligator Ridge mine where we stepped out, and because of the long history of mineral exploration at that site by a number of different operators, and the need to bring up current reclamation in that area for a lot of the past exploration areas, that many of them were even pre-3809 areas.
Our Bald Mountain operation went ahead and reclaimed a number of areas that were not necessarily our responsibility, but brought them up to date and that was in essence the foundation for the award. They did an excellent job with reclamation with it, but primarily the stepping out and recognizing there was a need there. I think our best successes have been where we began working with local agencies, Federal and State, one on one, even outside the permitting process where we can collaborate on whether it is wildlife habitat enhancement or reclamation. That has been our real big success story, where it is not something that is written in the permit, it is something that, on the grounds, needs to be done. It is the right thing to do and that is where our real successes have been for our company, and I think the industry in Nevada.
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Mrs. CUBIN. This might not be a fair question and if you don't have an opinion, that is fine. But since hardrock mines don't pay royalties yet, I understand, and that might be why you don't have an opinion on this, but the resource advisory councils that were established in land use and planning and so on, recommended, among other things, eco credits. Do you have an opinion on how eco credits would work in your own industry?
Mr. UPTON. Well, I think the best example we have would be in wetland litigation where we deal with no doubt loss issues and mitigation. I think there is an example of some sort for eco credits where we do, if we are going to effect wetlands and water in the U.S., we can mitigate those impacts by going out into adjacent areas and enhancing wetlands or creating new wetlands and we do get credit there, so I am sure there will be opportunities to work with a system like that. I am not real familiar with how it would be applied in hardrock industry, but I am sure the experiences we have had on working with offsite wild habitat work and so forth would work well in those situations.
Mrs. CUBIN. And the bottom line would be to improve the environment, so do you think that there is a potential for that, through the use of the eco credit system.
Mr. UPTON. There seems to be, yes. I think we are well versed at working with ecosystem management and looking at the whole picture, so I would think, yes, hardrock mining could work with something like that.
Mrs. CUBIN. And I have exceeded my questioning time but I would appreciate a brief response from the other two.
Mr. ESPELL. I guess to followup on what Bill said, the only current system that we work under that is similar to that is under the Corps of Engineers 404 permit for wetlands mitigation. I think most of the mining companies right now are already doing something like that, without any sort of benefit of some sort of eco-credits or something, that the companies on their own are performing that right now without a push.
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Mr. JONES. First, let me correct a fact? We don't currently pay royalties to the U.S. Government, but we pay royalties. We pay royalties to private landowners, where we have operations and we pay a net proceeds tax to the State of Nevada.
Mrs. CUBIN. Thank you.
Mr. JONES. I know you are aware of that and I wanted to set the record straight.
I am not very well versed in coal and coal regulation and so on and I am not able to comment knowledgeably on ecosystem credits. I think there is room to talk about them and I think probably we are doing a lot of the things now, but I can't give you an intelligent answer whether I support that or not. Thank you.
Mrs. CUBIN. Thank you very much. I do appreciate your testimony, and the answers to the questions and now you should go back and make some more net proceeds for Nevada. I would like to call the next panel forward, Dr. Tom Myers, Gene Gustin and Edward Presley.
I will remind the witnesses that you are allowed 5 minutes for your testimony. The traffic light will be right there in front of you. You can't miss it, and I will try to hold my questioning to 5 minutes next time, too. We will begin the testimony with Dr. Tom Myers, Consultant to Great Basin Mine Watch.
STATEMENT OF TOM MYERS, CONSULTANT TO GREAT BASIN MINE WATCH
Mr. MYERS. Madam Chairman, Congressman Gibbons, on behalf of the Sierra Club and Great Basin Mine Watch, thank you for this opportunity to testify this morning. My expertise and research on this issue primarily concerns water quantity and the impacts of mining on groundwater hydrology and the surface expression of groundwater, primarily springs, streams, rivers, streams and riparian areas.
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My invitation to speak specified this and asked me to address water resources and the regulations regarding water resources. For my research, I have used public information obtained from the Nevada State Engineers Office, the U.S. Geological Survey, Nevada Division of Environmental Protection and the Bureau of Land Management, as well as data published in environmental impact statements.
I will focus my oral discussion on the hydrologic impacts and needed mitigation. My written testimony includes many specific examples and specifies many changes in 3809 regulations that we believe would help. I have also attached copies of a couple of articles and abstracts I have recently published to my written testimony.
Pit dewater imposed four primary hydrologic impacts: First, groundwater levels lower in the vicinity of the mine, which impacts spring and surface water, by changing the flow gradient in the vicinity of the mine. For example, there has been a spring about 7 miles from the Lone Tree Mine, which went dry, presumably due to dewatering. Second, the open pit and drawdown cone around the pit are a deficit to be made up after mining and dewatering ceases.
The pit was originally all rock and pore spaces filled with water would have made up only about 1 percent of the pit and up to 20 percent of the pit that was in alluvium. After mining ceases, pit lakes will form with water that must come from somewhere. In this regard, the two most impactful mines on local groundwater deficits are the Twin Creeks Mine, northeast of Winnemucca and the Lone Tree Mine, between Battle Mountain and Winnemucca. Twin Creeks will create a 460,000-acre-foot pit lake, which will be the second largest man-made lake in Nevada, if we include Lake Mead.
The Lone Tree Mine deficit of almost 1.1 million acre feet sits just 2 miles from the Humboldt River. Third, quality of water in the pit lakes depends on the source of water refilling them. BLM predicts this water quality using complicated geochemistry models. However, the models depend on the quality of the hydrologic data, including predictions of the inflow to the pit.
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I presented a paper 2 weeks ago at American Chemical Society which shows the very reasonable assumptions of the geology into the pit led to estimates of inflow at the pipeline deposit pit for the refill to vary from 8 to over 100 years. Fourth, pit lakes will evaporate water in perpetuity. This represents a permanent loss of water from the flow in local basins.
The pipeline pit at full development after the several piecemeal expansions are complete will evaporate well over 10 percent of the total recharge. Cumulative impacts of mining are rarely considered although NEPA requires such consideration. For example, the Humboldt River watershed contains 18 mines that are either currently or soon to go below the water table and require dewatering. Total deficits from these mines represent 62 percent of the water stored in the surface aquifer of the Humboldt River.
Total deficits in the Humboldt River Basin equal more than 25 years of the entire river flow at the city of Winnemucca. Fortunately, I do not own water rights or property I want to develop downstream on the Humboldt River. It cannot be overemphasized that these impacts are unprecedented in the history of mining anywhere in the world.
While mining companies return large profits from underregulated mining, society is allowing a massive uncontrolled experiment on the environment of northern Nevada. It is not too late to do anything about it, but we are reaching that point. The rest of this testimony includes discussion about what the BLM could currently be doing and needed changes in the regulatory framework. Many of the impacts discussed above could be avoided or mitigated by reclamation of the pits, including complete or partial backfilling or through adequate bonding to either remedy or compensate individuals adversely impacted in the future.
Section 3809 provides BLM's regulations to govern hardrock mining permitting. Currently, BLM is attempting to modify or reform these regulations. First, I emphasize that the BLM, under current regualtions, has the authority to adequately regulate and mitigate these impacts. They are reluctant to assert the authority so regulatory reform will help them in this process, as I will elaborate below or actually in my written testimony. BLM is required to prevent unnecessary and undue degradation.
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Unfortunately, we focus on surface-to-surface, while ignoring the long distance impacts of drawdown and water contamination, impacts which may not occur until after mining ceases are even more difficult for the agency to consider. However, the impacts of drawdown caused by dewatering and pit refill clearly impact surface water and land.
For example, drawdown has already caused sink holes to form in Maggie Creek. It has caused springs to dry. When stream flow was substantially reduced, the riparian vegetation may dry, which is also a surface impact. This type of impact clearly reduces the ability of land, far from the site, to support multiple use, including grazing and recreation. I see I am out of time and I have a couple pages to go, but I am going to jump to the end to finish up then.
The Sierra Club and Great Basin Mine Watch strongly support needed changes in Section 3809 regulations. We also support enactment of the Rahall bill, which is H.R. 253, which I believe is currently in front of this Subcommittee. Many of our concerns will be remedied. Many of the suggested regulatory changes would be codified. It specifically refers to the protection of water resources. It establishes a fund to clean up degradation to surface and importantly water resources caused by previous mining.
The gold mining industry has expanded from a million ounces in 1980 to 13 million ounces today. This is a remarkable expansion and has led to rapid growth in rural Nevada and other States. It is a very important part of the economy of Nevada and should remain so. But future citizens of northern Nevada, ranchers, farmers, Native Americans and cities should not be paying the debts created by present day mining. We request baseline standards to protect the environment of northern Nevada and the Western United States. Thank you for this opportunity to testify.
[The statement of Mr. Myers may be found at end of hearing.]
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Mrs. CUBIN. Thank you, Dr. Myers, and I regret that we don't have time for your entire testimony to be given verbally, but it will be in the record.
And the next witness we will call on now is Gene Gustin, Public Land Use Advisory Council to the Elko County Commission.
STATEMENT OF GENE GUSTIN, PUBLIC LAND USE ADVISORY COUNCIL TO THE ELKO COUNTY COMMISSION
Mr. GUSTIN. Well, Madam Chairman and Congressman Gibbons, welcome to Elko. I sincerely appreciate your willingness to conduct this oversight hearing on this most vital issue to this area. More importantly, that you are reaching out for constituent input is very encouraging, and I am also encouraged by your opening remarks on this subject. Having been involved in the mining industry in the Western United States for some 27 years, in several different capacities ranging from tramp miner, to superintendent of mining of two large operations, to mining claim holder, to owner of an independent contracting business serving mining. I have been afforded many different perspectives on the evolution of the regulatory regime and the political and populist perceptions of the value of mining in a modern day life to this country. But how these perceptions and attitudes interface with reality and legality is the subject at hand today.
I believe the current efforts to rewrite, through administrative fiat, mining rules and regulations that have taken over 130 years to evolve and be refined is at best the height of bureaucratic arrogance and at worst, a crude misdirected illegal power play that simply cannot be tolerated by Congress, the States, the courts or the people of this country.
Why are we bringing forth words here today to our duly elected representatives asking them to rein in the activities of a government employee to run wild? An appointee, within whose purported purview it is to write the regulations, implement the rules, review and adjudicate the systems concerning basic individual rights which violate the separation of powers doctrine. This Western United States subject of this medieval realm who thought he owned the possessory title in mining, grazing, water or agriculture rights and the rights to make improvements on such is then dragged through a kangaroo gathering called the Court of Administrative Appeals where the legislative, executive and judicial branches have been rolled into one easy instrument of rule without recourse.
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And what is the alleged mechanism justifying this complete bypass of our system of checks and balances and separation of powers, the purported proprietary interest of the Federal Government in 87 percent of the State of Nevada. Where did we go wrong? A series of Supreme Court decisions, most recently, the decision of Printz vs. United States, on June 27, 1997, where Justice Scalia instructed us, ''The separation of two sovereign spheres is one of the Constitution's structural protections of liberty. Just as the separation and independence of the coordinated branches of the Federal Government serve to prevent the accumulation of excessive power and in one branch the healthy balance of power between States and Federal Government will reduce the risk of tyranny and abuse from either front.''
They even commented in that decision on what a novel phenomenon this was, as they hadn't started seeing this type of overregulation until the 1970's. Finally, and I quote, we held in New York that Congress cannot compel the States to enact or enforce a Federal regulatory program. Today, we hold that Congress cannot circumvent that prohibition by constricting the States officers directly. The Federal Government may neither issue directives requiring the States to investigate particular problems nor command the States officers or those of their political subdivisions to administer and enforce a Federal regulatory program.
It matters not whether policymaking is involved and no case-by-case weighing of the burdens of benefits is necessary. Such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.
Now, I know the Honorable Members here today are familiar with and understand the intent of the court's instruction, so I ask you today, are Members of Congress ready to tackle this issue politically and legally or will the burden fall to the directly affected parties yet again? Mining is America's financial backbone. The mining laws are the last great vestige of acquiring proprietary interests by common law principle, mixing sweat with soil to earn equity. Mining has made America strong without subsidy.
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I have witnessed 70 percent of the mining claims be regulated and taxed out of the business in the last several years. I have experienced a 40 percent reduction in my personal business this year because of an illegal bonding rule implementation. Mining has been under an escalating P.R. Assault for the past several years. We try to respond with reason and logic and compliance and what does it get us, more assault and more restrictions.
The current attempt to rewrite through 3809, through the administrator, I believe, is a misdirected effort and I think that the Congress ought to challenge, legally, in the Supreme Court, to assure that its role in the legislative process is properly assured. And I see my time is out, but, again, I thank you for the opportunity to present my views on this. Thank you.
[The statement of Mr. Gustin may be found at end of hearing.]
Mrs. CUBIN. Thank you, Mr. Gustin. Our next witness will be Edward Presley, National Director of County Alliance to restore the economy and environment.
STATEMENT OF EDWARD L. PRESLEY, NATIONAL DIRECTOR, COUNTY ALLIANCE TO RESTORE THE ECONOMY & ENVIRONMENT (CAREE)
Mr. PRESLEY. Good morning, Madam Chair and members. I would like to also welcome you to Elko, and I thank you for the opportunity to give testimony here today before your Committee. I am just going to make reference, Madam Chair, to my written statement and request unanimous consent it be submitted for the record then.
Mrs. CUBIN. Without objection.
Mr. PRESLEY. I will give a little different view than what you have heard from the industry. Obviously, I am one of those working in research and working on legal defense teams and plaintiff teams, suing the Federal Government, being sued by the Federal Government. I am that one that brings that unorthodox position that the Federal Government does not own the land out here. And we have that position and that question before the Supreme Court of the United States now in a petition for writ of cert for the October term in a case called United States vs. Gardner.
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What I want to provoke you into realizing here today is that we can talk all about what has gone on with Mr. Babbitt violating the Administrative Procedures Act. We see that the mining companies up here who have billions of dollars invested out here are held at bay and under extortive measures by the Federal agencies and the local managers, and, Madam Chair, I would respectfully take some issue with you on your statement that the local land managers for the Federal Government are doing a good job and it is the bureaucrats back in Washington. I somewhat find out there is a bit of a roll reversal that occurs there, simply because I was the plaintiff in a case called Barton v. Babbitt where we had to bring a civil rights lawsuit because of our activist measures that we took out here in the public lands issues that the United States Attorney's Office was the nest for the Federal agencies and the local people going in there trying to get criminal indictments on us to commit a chill factor on our activism out here, and we successfully brought that, which then shifted from a criminal investigation against us and then brought about the United States vs. Nye County lawsuit, that was nationally known out here.
Now, I don't want to brand all Federal agents out here and all Federal employees, but I do want to tell you that I would have not known about that had a Federal agent not supplied me with the minutes of the meetings that occurred inside the United States Attorneys Office when they were trying to indict us, and Mr. Gustin was one of these plaintiffs here, too. What we have and what I have given with the visual up here is that you see a map of Nevada. Now Federal agencies will color the Western United States in various different colors out here to commit an optical illusion out here, but that is the truth, that 87 percent of black up there puts us under a quasi type of military occupation out here, and I will tell you why it makes such a bold statement.
As long as the Federal agencies are in charge of that much of the State, there is no common law, there is no State law that is applicable, because they operate under only admiralty and equity jurisdiction. A lot of people do not understand this, that the Federal agencies have no authority to protect rights out there on the public lands. Only you at Congress, and I would direct your attention to the very last page of what I submitted for the record. The courts have told us this, and on page 19 of our brief to the Supreme Court, listen to what the Court said back in 1850, and it is still good law today, under Downes and Midwell. The Constitution deals with the States, their people and their representatives.
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The sole object of the territorial clause was to transfer to the new government the Northwest territory and to give the power to apply that territory to the objects and dictates by the States. The Constitution—now listen to this very clearly. The Constitution does not extend to the territories of its own force. We are not under any constitutional protections and that is the problem that is out here, and if you don't quit claim the land over to the States, and if you do keep control of it, you have to remove all rulemaking from the Federal agencies. You cannot have any police power that is vested in these Federal agencies. It must be invested in the State.
You must also statutorily remove all types of litigation that go on in public land matters and remove that from the Federal judiciary and the administrative law judiciary that has been set up. You have it under your power under Article 1, that is the only way we will be able to keep our rights intact out here and I thank you very much for your time and attention.
[The statement of Mr. Presley may be found at end of hearing.]
Mrs. CUBIN. Thank you for your time. And we will start the questioning with Representative Gibbons.
Mr. GIBBONS. Thank you, Madam Chairman, and first, let me address a brief question to Mr. Presley, who has just recently finished his testimony, and I would ask a very brief analysis of how you came about the conclusion that the Federal Government does not own the land here in Nevada, if you could do that very briefly for us.
Mr. PRESLEY. Thank you, Congressman, good question. It was in 1993, I had a client that had a problem with the Bureau of Land Management on grazing, and, also, there was some mining problems in Clark County, dealing with the desert tortoise issue down there, of which there was a full force and final decision that came out, full force and effect decision that came out to remove grazing from the desert tortoise habitat.
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Now, they are under the Endangered Species Act, and the first thing I noticed, since we had come through the Nevada legislature in dealing with AB–77, the so-called sage brush rebellion 2, was that it didn't appear that the Federal Government owned any property out here, I will say, except Nellis Air Force Base and that is within Article 1, Section 8, Clause 17. So my forte is in the Freedom of Information Act and I performed a Freedom of Information Act request to the Department of Interior, BLM, and their Solicitor took charge of my request and came back and said they had no documents responsive to my request when I asked them for the deed to this land.
But since then, what has happened out here is that they have claimed ownership under the Treaty of Guadalupe Hidalgo of 1848 when we had the conquest against Mexico. They are claiming that as their jurisdiction here today, which clearly makes that black encampment there of Nevada a territory and enclave of Mr. Babbitt, and there is no State there. The only place that there is State, members of the Committee, the only place that is the State of Nevada are those white spots up there and they are noncontiguous and we are beholding to these Federal agencies to get from point A to point B, so we are not a complete State.
And Madam Chairman, you have the same thing in Wyoming, Mr. Hansen would have it over in Utah, and in Alaska, Mr. Young certainly deals with that. That is what brought the question about they didn't have it and I tried to zero all of my research and for the arguments and for the Nye County case and now the Gardner case, I zeroed it in that they do not own the land because they couldn't produce title and that is the question we have before the Supreme Court of the United States, which I am here to say, unequivocally has never been before the Supreme Court of the United States in the 200 plus years of its existence. Thank you.
Mr. GIBBONS. Thank you. Dr. Myers. I presume your Ph.D. is in science of some sort.
Mr. MYERS. My Ph.D. is in hydrology.
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Mr. GIBBONS. Hydrology. How would you abate or stop the water table drawdown due to an open pit mine? How would you stop that, in a surrounding area?
Mr. MYERS. During mining, the water table has to drawdown.
Mr. GIBBONS. We understand that, how would you stop that.
Mr. MYERS. Through recharge in the local basin. Part of what I had to leave out was testimony that, in fact, there are a few mines that are recharging the local basin. It is not working as well as it is supposed to. There are other mines that should be recharging better. We have argued, in environmental documents, certain mines should be recharging. We will argue it is only done where it is a very inexpensive thing to do.
Mr. GIBBONS. Let me move on, and understanding that issue, you talked about some mines that are not recharging and suppose, for example, let's take the Lone Tree Mine, which takes its water, cleans it, puts it into the Humboldt River and sends it down to Rye Patch Reservoir for farmers and ranchers to use. Is there a problem with the water quality in that water they are putting in the Humboldt?
Mr. MYERS. I don't recall constituent problems, I mean, specifics. I know there were temperature problems, the temperature in the Humboldt River increases rather substantially from just above their discharge point to just below and that is because the water is geothermally heated that they are dewatering.
Mr. GIBBONS. Let me ask another quick question. If water rights, in probably 16 of the 17 Western States are State prerogative, I mean a State jurisdictional area, why should the Federal Government step in and deal with water, water rights?
Mr. MYERS. Well, for one, the 3809 regulations specifically state the BLM is required to enforce State law and we would argue that if the State is not adequately doing it, then the BLM is required to do that.
Mr. GIBBONS. And you have a complaint with Nevada's environmental treatment of its water within a State then?
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Mr. MYERS. We do.
Mr. GIBBONS. Then it would be better, I presume, under your testimony to go tell the State of Nevada to change its water quality laws.
Mr. MYERS. But since we are focusing on 3809 today, it specifically states, in several different locations in those regulations that the BLM is required—excuse me, is required to enforce State regulations. It doesn't say where the State fails to do so, but it says the BLM is responsible for seeing to it that that is enforced, and that would be a BLM oversight. I mean, previous speakers have talked about the BLM having a responsibility for oversight.
Mr. GIBBONS. You also mentioned that due to the drawdown on some of these areas, the water table has lowered, and some people should be compensated for that. Who is not now compensated for the drawdown of the water table that should be compensated for?
Mr. GIBBONS. We would suggest that most of the impacts will occur, actually, after mining has ceased, after the pits have refilled, when you draw the water table down a thousand feet, 1,300 feet at a couple of places, that that drawdown cone continues to expand after mining ceases. The pit refills, I mean, for example, you mentioned Lone Tree, there is 1.1 million acre feet of deficit being created around that mine. The Twin Creeks Mine has 660,000 acre feet of deficit. That water is going to come from somewhere and we don't know—I am not going to say it is all coming from the Humboldt River.
What I am saying is we don't know where it is coming from and for those reasons we would suggest adequate mitigation, bonding and escrow account would be set-aside so 30 years from now the people who are affected could be compensated or the situation could be remedied.
Mr. GIBBONS. Mr. Gustin, let me turn to you now briefly in the time I have remaining. What suggestions would you have as to how to better resolve the conflicts that you stated in your testimony, in terms of regulatory authority, State powers, Federal powers, what would you suggest?
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Mr. GUSTIN. Well, to me, the only way this is going to be resolved successfully is that the people who live in the areas that are affected have a lot more authority to say how things are done. I realize that in general, that might create a little fear in the hearts of mining industries, but I am pretty sure that when the State assumes a much larger role, that you will see consistency from States.
The State of Nevada has been a leader in mining regulation, and it works well. We have the most experience with that, and as has been previously testified, I believe that the experience that is gained in places like Nevada can be transferred anywhere else and a lot of States look to Nevada for leadership on this issue.
Mr. GIBBONS. You mentioned also in your testimony that your business has been specifically impaired or harmed by current regulation changes, and maybe you could help this Committee a little by explaining how the new bonding requirements or the changes in 3809 have specifically impacted your business and as you see it, how has it specifically impacted mining operations on public land in the State of Nevada.
Mr. GUSTIN. In early March, while I have been in business for roughly 18, 19 years in the exploratory end of things, in early March, it looked like another routine year as near we could tell. We were getting our level of inquiries as to drilling on projects on public lands.
Once it was announced that there were proposed changes on a 30-day comment period on the bonding, for almost 6 months, nobody knew what to do, nobody could get drilling permits. I am sure that our businesses suffered 50 percent as well as many other people I am aware of in the industry. Many times, the regulatory agencies failed to consider not only the direct but the indirect impacts, I mean, all the way down to the mom-and-pop grocery stores and gas stations and everybody in the State of Nevada had become very dependent upon the expenditure of exploration dollars in this State, which are currently off, probably 70 percent, from where they were 3 to 4 years ago.
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I don't know how 1997 is going to shape up, but I am sure it is going to be a significant decrease, even the major mining companies had difficulties going outside their operations plan area to even get a small permit for any level of disturbance, so myself, we have seen our business off 40 percent, cutting salaries and having to lay people off and that kind of thing. I don't see any resolve until the States have more of an ability to affect this process and it is not controlled out of Washington, DC, or at least if it is controlled out of Washington, DC, it is through our duly elected representatives here today, and, you know, we have about compromised ourself out of existence here, trying to get through this, and I don't follow the industry closely per se, but, you know, when you have large capital investments, and you have to project over long periods of time, these kinds of attack through the regulatory process, like on bonding, it is just devastating, just devastating, and we can't tolerate much more of that kind of activity.
Mr. GIBBONS. Thank you, Madam Chairman.
Mrs. CUBIN. Thank you. I think I will start with Dr. Myers. I am not trained in hydrology, as Representative Gibbons said earlier. I am a chemist, so I do know, or at least have an opinion on, I guess, as every other scientist would have to say, on what is good science and what is not good science, and that is one of the key areas of conflict over a lot of environmental things. People who don't know much about science and scientific models don't know how to judge whether they are getting good science or not, and I find today I am sort of placed in that position because I don't know much about hydrology. So I guess I just should ask, does the State—I am sure the State engineer has seen your opinion and testimony today. And does he give credence to your analysis or are you at odds.
Mr. MYERS. Well, I hesitate to speak for the State engineer. He acknowledges that there could be impacts in the Humboldt River Basin, but he has not—he, of course, does not—well, basically, about 15 years ago, the State of Nevada made a decision that it was going to support the mining industry and I believe we are reluctant to really strongly enforce it.
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I mean, there is a policy of the State engineer to not allow groundwater withdrawals to exceed the recharge in a basin, unless it is on a temporary basis, and that is what we are doing, you know, some of these withdrawals exceed the recharge, but only temporarily. We, of course, have a concern then. I mean, our mine is projected to last to the year 2036. That begins to stretch the definition of temporary, I think.
Mrs. CUBIN. I don't want to put words in your mouth, just as I didn't before, but you seem to be saying to me that if the State engineer won't enforce Nevada's ground water laws, then the BLM ought to step in and do that; is that right.
Mr. MYERS. I believe they have the authority—well, the State engineer is required to interpret the laws, and to enforce them as he sees fit, and he is doing so, we would argue about that interpretation, I think is the best way I should characterize that.
Mrs. CUBIN. OK, then, question. Do you think the BLM ought to come in then and enforce or interpret Nevada's environmental laws?
Mr. MYERS. I think they have a requirement to, at least with regard to, for example, the Clean Water Act, them and the EPA together. They need to protect the public lands of Nevada. Their job is to prevent unnecessary and undue degradation. If contaminated water or drawn-down springs is causing unnecessary and undue degradation, and we would argue that it does, then I believe the BLM has the authority and needs to do more about that, and the problem is that some of these impacts may be 7 miles offsite. How do we argue the current regulations specify or imply surface disturbance and it implies, due to the mine, right at the mine, but a dry spring, 5 miles away, is also an impact on the surface.
Mrs. CUBIN. But Nevada does, in fact, have primacy on the Clean Water Act, and the Federal Government granted that primacy, so for me, it is hard to get the balance there. I mean, I just—well, go ahead.
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Mr. MYERS. The EPA also would have oversight on that primacy, though, I believe, and I will give one specific example. On the Jerritt Canyon Mine, we got from the Division of Environmental Protection, about an inch of water quality reports. All throughout them, there are specifics where water quality standards were not met. There has been nothing done about these particular——
Mrs. CUBIN. Who is that from?
Mr. MYERS. The Nevada Division of Environmental Protection. That is why we will argue that the BLM does need to look, you know, they have an authority there that they really should help encourage better enforcement.
Mrs. CUBIN. But Jerritt Canyon is Forest Services isn't it.
Mr. MYERS. I'm sorry, Jerritt Canyon is Forest Service, that is correct. But the point deals with, you are asking about the State enforcing the Clean Water Act. That is the instance I have on top of my mind at the moment. There are others. There are instances, I believe at pipeline and others that we have collected the data, we look at it, and we are just building a large pile of that evidence right now.
Mrs. CUBIN. And surely you can sympathize with those of us who aren't experts in hydrology trying to figure out who to believe.
Mr. MYERS. Yes, and I would like to emphasize, what we emphasize with regard to water quantity and hydrology, I am not the water quality expert here. I tend to focus on water quantity. We try to emphasize the uncertainty of the problem. We think we are permitting with a great deal of uncertainty and one of the only ways to get around an uncertainty is through bonding and through mitigation.
Mrs. CUBIN. And I don't know of anyone that questions whether or not bonding is necessary. I think everyone believes it is. I guess it is how we go about deciding what that bonding should be that is in question—no, not what the bonding should be, how the bonding should be derived and whether or not there ought to be public input and apparently the BLM thinks there should not, and I certainly think there should but that will be decided in court.
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You mentioned our colleague on the Subcommittee, Mr. Rahall of West Virginia and the mining law reform bill that he introduced in this Congress again, which has been referred to this Subcommittee. What you didn't mention, so I will, and it is not your obligation to mention it, is the fact the last Congress did pass several reforms to the 1872 Act and that the 1872 Act has been amended many times throughout the years, and I mentioned in my opening statement that the bill, H.R. 2491, among other things, established a trust fund for abandoned mine land reclamation, which we were careful to put in the hands of the State, by the way.
What that bill did not do, and what the Rahall–Bumpers bill wants to do, is to create incredible disincentives for investment in public lands, because that bill requires so-called suitability reviews. And I would say that no prudent miner or prospector would invest the huge sums of money that are necessary to develop a new mine if they are really subject to anyone claiming the faintest harm to things like impairment of view shed aesthetics, any kind of lawsuit that could come forward.
I think what the Rahall–Bumpers bill would essentially eliminate is any new mining period, and while I certainly agree and respect that you have every right to hold your opinion about that bill, I hope that—well, no, I don't hope that, but I certainly have my right to that bill and the authority whether or not to bring that bill in and mark it up. I think we offered some good amendments to that 1872 bill. And to Mr. Gustin and Mr. Presley, both of you presented very thought-provoking testimony, and, frankly, Mr. Presley, I really, really hope you win, but that is in the Supreme Court right now, and so I don't think I or anyone on the Committee really can take any sort of a professional stand on that.
As a duly elected Member of Congress, I am mindful of the property clause, Article 4, Section 3, Clause 2, which does, indeed, state that Congress shall have the authority to make all the meaningful rules and regulations concerning disposal of public property and the territories, but, unfortunately, previous Congresses have allowed the executive branch to encroach on what truly ought to be our jurisdiction, and we are trying, we are working every day, to try to get that authority back because I believe constitutionally it was granted to the Congress and not to the executive branch. Would you like to comment on that?
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Mr. PRESLEY. Yes, Madam Chair. You raise the Achilles heel point to this whole problem we have out here with 3809 atrocities that occur. The property clause has been misapplied inside the States, inside our State and inside your State. However—and I fully appreciate the fact that through the political process, that Congress has to nibble back at this, when you have got, you know, Representatives in Congress like Mr. Rahall, who are coming from clearly the opposite end of the envelope. But you may want to have your legislative counsel back there really delve into the Administrative Procedures Act and what it actually applies to.
You see, there is a misconception out here that it applies to the Code of Federal Regulations and gives autonomy to the Federal agencies and promulgating rules to implement the statutes of Congress and that simply is not the case. As a researcher, when I go in, I don't only look at the Code of Federal Regulations, of which 3809 came from, I will look at their handbooks and their manuals and the Administrative Procedures Act mainly applies to those handbooks and manuals and that Congress still has the regulatory power over these agencies.
And here is my specific suggestion to you, and an introduction of legislation, that when you have something involving the public lands out here, until the ownership issue is addressed, or you are able to muster enough to get a quit claim deed to the State of Nevada and the rest of them, what you do do is you put something in the legislation that says, ''and we really mean this.''
In other words, if there are water rights out there on the public lands and the Federal agencies are going to manage, you must say that you cannot make those attacks on those decries and those adjudications that have happened at State Court, specifically, rights acquired under common law of the State shall be supreme in the implementation and management of Federal land managers under the public lands. That would go a long way with us. I have been in the administrative courts. I have brought an Administrative Procedures Act case. The Federal judiciary of administrative courts just simply say you don't have any rights out there.
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So you see there is no remedy at law for us when we are in the adjudicating process and that costs the client hundreds of thousands of dollars. Just one little thing like that in legislation that says the common law of the State that has brought about the recognition of those rights on public lands, grazing and whatever, mining, especially, would go a long way in curing everything. Thank you.
Mrs. CUBIN. Thank you. And thank all of you for your testimony. We will be calling the next panel forward at this time. Royce Hackworth, Dr. Anthony Lesperance, Zane Miles, Michael, because I am not even going to try your last name. You can tell me how you, how to say it when you get here, and John Carpenter, please come forward.
Thank you. We will begin this panel with Royce Hackworth, of the Elko County Commission.
STATEMENT OF ROYCE HACKWORTH, CHAIRMAN, ELKO COUNTY COMMISSION
Mr. HACKWORTH. Madam Chairman Cubin and Congresswoman Gibbons, I am Royce Hackworth, Chairman of the Elko County Commission and owner of Hackworth Drilling, Inc. I want to welcome you to Elko, and I appreciate the Subcommittee coming to the people and the area where the revision of 3809 regulations will effect. It shows the mining industry and the residents of Elko County and the United States the willingness and the concern we have had with getting the facts, and whether the BLM needs to rewrite the 3809 regulations.
Elko County is 10.9 million acres in size and yet only 28 percent of it is under private ownership. The other approximately 72 percent of the county is public lands under Federal Management. On public lands in Elko County, the mining industry does explore for and find many valuable mineral deposits, such as gold, silver, copper, barite bentonite and gypsum, just to name a few.
The mining industry creates many good paying jobs in exploration and development of these resources. On average, industry pays in excess of $38,000 a year plus benefits in the jobs it creates. Jobs that are created employ people with Ph.D.s, all the way down to those who did not complete high school. The mining industry creates good-paying jobs for men and women alike. These high-paying jobs are at the level where their employees do not depend upon State and Federal subsidized housing, food programs, health care programs, to live the American dream.
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In fact, the industry and their employees pay taxes to support those who depend upon State and Federal programs just to live. And with the current change in legislation coming about, we see a shift moving back to the States and from the States back to the county to help pay for these programs. My concern is the change in attitude toward the mining industry by the Federal agencies, by the implementation of undue and excessive regulation.
What troubles me is the method and the reasoning the BLM has used in deciding to change the 3809 regulations. I do not believe, nor will I accept the Secretary of the Interior having the power to circumvent the NEPA process and Congress in changing 3809 regulations. The BLM does not clearly define a purpose and need along with a definitive and specific proposed action for public scoping as NEPA regulations require that EIS briefly specify the underlying purpose and needs to which the agency is responding in proposing the alternatives, including the proposed actions.
When the Secretary makes a statement, it is plainly no longer in the public interest to wait for Congress to enact legislation. I fear for the future of our country. For the framers of our Constitution or you as duly elected Members of Congress should or would believe that any Federal agency could obtain or try to circumvent the powers given to Congress. 3809 regulations are not an impending emergency or a national security, so why should the Secretary be permitted not to follow the normal NEPA process or circumvent congressional wisdom.
The Federal public land agencies cannot, nor should not be given unlimited ability to create regulations without congressional oversight. Let me give you a couple of examples of regulations run amuck by the Federal land agencies in our county. Here in Elko County, U.S. Forest Service employees of the Humboldt Toiyabe National Forest are protected by agency regulations that prohibit them from being subpoenaed to testify before a grand jury, a classic example of a Federal employee being immune from the laws that every citizen of the United States has to abide by.
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Where logic doesn't work when it comes to Federal land managers, just following the regulations they are in charge of, we have Jarbidge Community Cemetery. Elko County is trying to obtain a 1-acre addition to expand the current cemetery. The U.S. Forest Service comes back to the county with a 20-year lease for the 1-acre parcel.
The county is in a dilemma. We do not know whether to rename the cemetery the Jarbidge Community Time Share Cemetery or the Jarbidge Lazarus Cemetery. With the current boldness of the Federal land agencies in creating new regulations, I feel they believe they have been granted a higher power of authority. However, I do not believe they will be able to raise the dead every 20 years to renew their cemetery lease. This year the BLM enacted new bonding requirements for claim holders on public lands, without following the NEPA process correctly. This is just putting more nails in the coffin for the mining industry in the United States.
We have already seen a 70 percent reduction to claim holders when the hundred dollar holding fee per claim was enacted. By not encouraging people and companies to look for mineral discovery here at home, we are driving the mining industry outside our country of good paying jobs. I am here today as a county commissioner asking you to please stop the BLM from enacting undue regulations on the mining industry. Current regulations are being handled by the States and current Federal law. Please use whatever power you have to curtail the Secretary of the Interior for not following the true NEPA process in creating regulations.
Also, I am asking you to invoke newly enacted bonding regulations and have the bonding regulations go through the true NEPA process that defines the purpose and needs in a way the law intended it to be enacted. In the State of Nevada, we have a comprehensive, regulatory environment to protect the citizens and the lands in our State and I thank you for the opportunity to make this testimony.
[The statement of Mr. Hackworth may be found at end of hearing.]
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Mrs. CUBIN. Thank you, Mr. Hackworth.
Next, we will call on Dr. Anthony Lesperance. You tell me how to say your name.
STATEMENT OF ANTHONY L. LESPERANCE, ELKO COUNTY COMMISSIONER
Mr. LESPERANCE. You did pretty good. I can't even spell it yet. Madam Chairman and Congressman Gibbons, I request unanimous consent that my statement and the attached exhibits, which are two lawsuits, be made part of the record. I consider these lawsuits very, very important.
Mrs. CUBIN. Without objection.
Mr. LESPERANCE. Thank you. Today, you are hearing much about the 3809 regulations and impact that the actions of this nature have upon the economy. Our business, Great Basin Agriculture, has been a major player in mine and exploration reclamation. Consequently, we are in a unique position to engage the impacts of regulation, such as 3809.
Without belaboring the point, it is sufficient for me to say those impacts are very significant. Perhaps it might be more important—more appropriate to analyze why regulations like 3809 occur to begin with and what actions of this nature might really represent. Every single department of the Federal Government is a bureaucracy. Bureaucracies must either grow or stagnate.
How do bureaucrats make a bureaucracy grow? Very simple. They either increase the mass their agency regulates or increase the complexity with which it regulates. Either action, if successful, increases job security, promotion, and all the benefits associated with bureaucratic growth. That is how regulations like 3809 come into being. The 3809 is only the tip of the iceberg.
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Growth of bureaucracy is difficult enough for those of us who produce weather to contend with, but when the bureaucracy becomes unethical, it presents a set of problems that at best are almost impossible to deal with and at worse, could well lead to total anarchy. It seems to be a given that bureaucracies must grow. Only you in Congress can control that with fiscal restraint, a fact which despite all the rhetoric, Congress has failed to do, but what about the ethics of the bureaucracy.
Let's examine the ethics of agencies we here in Nevada most frequently deal with, the land management agencies. I will briefly mention a few events central to ongoing litigations. The cutting of fences or opening of gates so that legitimate reasons can be found to trespass livestock permittees; the mechanical covering of springs with dirt to disallow further use of water from those springs for irrigation; the movement or hiding of historical survey markers to confuse issues on location; the hiding or destruction of the historical documents absolutely necessary for settling of disputes; the physical changing of monitoring data to make livestock grazing look damaging; the hiring of so-called experts to present distorted historical and factual data to support agency position.
The elimination of years of outstanding research, because it no longer supports philosophy and, yes, even the threat of death if one dares to oppose the government action including the taking of personal property, and 3809 is simple. Just compound the bureaucratic red tape until complying becomes physically and financially impossible. Agencies that control the public domain want full control and that includes water.
I am aware of no less than six litigations between private individuals, political bodies, water districts and others and the United States, concerning water rights here in Nevada. The United States Forest Service leads a parade, close behind is the Department of Interior, including BLM and the BIA. Control of water in the West is control of all that occurs in the landscape, including mining.
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I will call your attention to two of these litigations. I am providing you copies of both the suits, the first involving the Truckee–Carson Irrigation District, requests repayment of 1,057,000 acre feet of water, including interest, for water allegedly stolen from Pyramid Indian Reservation between 1973 and 1988.
I will not go into the details of the ramifications, but loss of this suit would bring upon the water users of the district, as well as the towns of Fallon and Fernley, but it is sufficient to say the results of losing that suit will be catastrophic. Worth more concern, however, is the case known as the Walker River suit.
The United States is laying claim to all water of the Walker River watershed from the crest of the Sierra Nevada Mountains in California, to and around Walker Lake in Nevada. Their claim includes all surface water, as well as under groundwater within the entire basin. Theoretically, if won, the water would be transferred to the Walker River Indian Reservation for beneficial use. However, what seems to go unnoticed is much of the land being claimed by the government for the reservation, includes mountains totally capable of being irrigated.
Further, the reservation does not want the water, although again that doesn't seem to be very important in the eyes of the government. The distasteful part of the Walker River case is the fact every water user for the reservation will lose their water. That includes 1,200 active claims, resolving certainly what must be the single largest takings case in the history of this country.
Finally, I would call your attention that you must never forget that all wealth, by its very definition, ultimately comes from the land of the associated waters. When you regulate the ability to create wealth out of existence, it will be but a few short years before our national economy is in shambles. Add to that the ever-increasing takings of private property rights and anarchy will surely follow. Thank you.
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[The statement of Mr. Lesperance may be found at end of hearing.]
Mrs. CUBIN. Thank you very much.
I21The next witness will be Zane Miles, Deputy District Attorney for Eureka County.
STATEMENT OF ZANE MILES, DEPUTY DISTRICT ATTORNEY, EUREKA COUNTY
Mr. MILES. Thank you, Madam Chairman, Congressman Gibbons. I convey the regrets of Pete Chiny, our County Commissioner Chairman, that he can't be here today. Pete is back in Washington to testify today before another committee on another interior matter, and you have me as a substitute.
Mrs. CUBIN. We are glad to have you.
Mr. MILES. I again would ask that our written remarks be incorporated in the record and we will excerpt them very briefly today.
Mrs. CUBIN. Without objection.
Mr. MILES. You know, perhaps the most disturbing current trend in the Department of Interior is apparently, it is believed, that the bureaucracy in Washington, DC knows what is best. The bureaucrats regularly ignore local government, just as they regularly ignore the Congress of the United States. It is appalling to me that Secretary Babbitt can declare that since Congress has chosen not to act on some of his pet projects, that he will impose his beliefs anyhow by adoption of bureaucratic rules and regulations.
I would suggest to you that Secretary Babbitt take the same oath you did and that I did and protect and defend the Constitution of the United States, and what he is doing is such an egregious violation of the concept of separation of powers that I find it appalling that Congress has not found some way to draw rein upon such a headstrong approach.
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On a State and local level, the State of Nevada and Nevada's mining counties have an excellent record of common sense of environmental and other controls of the mining industry. Our enforcement is thorough, thoughtful, unbiased, complete, effective, and accomplished with due regard for the benefits resulting from mineral development.
If Congress, in its wisdom, is to decree that environmental rules are to be applied to small sites, like the new 5-acre rule, the Nevada Division of Minerals and NDEP, Department of Environmental Protection, and the local district attorneys will enforce those laws. We have done so in the past, and in other contexts.
Ironically, when I got into Elko yesterday, I picked up Saturday's edition of the Elko Free Press, and on the front page is a rather lengthy story, headlined, ''State Fines Newmont $23,500.'' Newmont mining is a very environmentally responsible organization.
Our county is the largest coal-mining county in the world, and we work closely with Newmont, Barrick, Homestake, Placer Dome, the others, and Newmont does a good job, but they can have problems just like anyone else; mistakes can occur. And when the mistake did occur in this case, the State stepped in and took administrative action. Had the administrative action not been sufficient, the State would have come to the local District Attorney's Office and asked us to take criminal action, which we would have been authorized to do. That hasn't been necessary at this point, it has occurred in others.
I will give you another example. In Lander County, the county to the West of us, a few years ago, there was a very small migratory bird kill where some birds got through netting and managed to get into a cyanide-laden pool. As I recall, the fine in that, for the death of two migratory birds, two ducks, was $50,000, $25,000 a bird, and that matter was handled by the State Department of Wildlife and the local District Attorney there in Lander. There is no need that we can see to bring in Federal regulations and Federal agents to enforce what the State of Nevada is already doing and doing very well. If there are two things I can leave with you today as thoughts, it would be these.