AMA's comments on proposed BLM rules
Editor’s note: In July AMA comment - ed at length to Tracy Stone-Manning, Director of the Bureau of Land Man - agement, opposing proposed BLM Conservation and Landscape Health Proposed Rule, 88 Fed. Reg. 19583. AMA board and committee mem - bers worked countless hours to craft our total comments, which covered more than 10,000 words, but here is a summary: AMA recommends that BLM withdraw the proposed rule as it is not needed, is not consistent with the Federal Land Policy and Man - agement Act (FLPMA), would require Congressional action and thus ex - ceeds BLM’s authority to promul - gate, and would be detrimental to the mineral industry in Alaska. If the rule is not withdrawn, BLM lands in Alaska should be exempt from the rule as the rule is inconsis - tent with, and potentially in viola - tion of, the Alaska National Interest Lands Conservation Act (ANILCA), passed by Congress in 1980. If Alaska is included, it is unde - niable that there would be signif - icant impacts on our members and their ability to develop the critical and strategic mineral supplies our nation desperately needs and BLM must fulfill its legal obligations to do an Environmental Impact Statement (EIS) under the National Environ - mental Policy Act (NEPA). It is also undeniable that the Pro - posed Rule fundamentally changes how the United States government manages millions of acres of BLM lands in Alaska without Congressio - nal authorization. The planning processes in these areas are well evolved and such changes would take years to imple - ment by local staff that are already overwhelmed by their current com - mitments. Such on the ground im - plementation challenges and the realities of how they would affect
minerals and other important uses of BLM lands are ignored in the Pro - posal Rule and must be considered before any rule is finalized. The cost of this regulation would be staggering in terms of its eco - nomic impacts and its costs of im - plementation and thus requires Congressional action. The Supreme Court also outlined the “major questions doctrine” to affirm that federal agencies must have clear Congressional authority when regulations issues of impor - tance to the American public. The Proposed Rule will absolutely have “vast economic and political sig - nificance” and would govern land use across millions of acres of public lands. That Congress has chosen not to enact the rule BLM seeks to promulgate here is seen from the fact that in 2016 Con - gress nullified the similar “Planning 2.0 Rule” that was nullified pursuant to the Congressional Review Act and meets both the two requirements to be considered a major question. The Proposed Rule violates and is inconsistent with the Federal Land Pol- icy and Management Act. While the Proposed Rule refer - ences the Federal Land Policy and Management Act of 1976 (FLPMA), it fundamentally violates FLPMA in multiple ways, including n illegally adding “conserva - tion” as a “use” when Congress did not include it in FLPMA’s specific list of uses (FLPMA Section 103(l)); n redefining key terms al - ready defined by Congress in FLP - MA, “multiple use” and “sustained yield” (FLPMA Section 103(c and h)); n contorting the scope and defi - nition of “areas of critical environ - mental concern” beyond FLPMA’s scope and n using current Administra - tion “conservation,” “restoration,”
and “ecosystem resilience” policies to impermissibly withdraw public lands from public use in violation of FLPMA § 204. The Proposed Rule also revises the framework for establishing Ar - eas of Critical Environmental Con - cern (“ACEC”). Finally with regards to FLPMA, the Proposed Rule creates incon - sistencies with BLM’s 43 CFR 3809 mining regulations per FLPMA’s mandate that mining activities must prevent unnecessary or undue deg - radation (UUD). The Proposed Rule is inconsistent with the Mining Law. The Proposed Rule substantively conflicts with the Mining Law. FLP - MA expressly amends the Mining Law, in a very intentionally narrow and limited way. The Mining Law authorizes and governs the exploration, discovery, and development of valuable miner - als, and allows citizens of the United States the opportunity to enter, use and occupy public lands open to lo - cation to explore for, discover, and develop certain valuable mineral de - posits. Per NEPA, the BLM must prepare an Environmental Impact Statement for the Proposed Rule. Yet in the Federal Register notice for the Proposed Rule, BLM states that it intends to apply the Depart - ment’s Categorical Exclusion (CA - TEX) provisions and that BLM is not required to prepare a NEPA docu - ment, either an Environmental As - sessment (EA) or an Environmental Impact Statement (EIS), to assess the impacts of this proposed rule.
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The Alaska Miner
Summer 2023
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