Walter H. Eason, Jr., an individual, and EQUAL ACCESS TO JUSTICE, INC. 39565 Terwilliger Rd., #A Anza, CA 92539 Tele. (951) 763-0604 Fax. (951) 763-0568 May 19, 2008 Forest Service USDA Minerals and Geology Management (MGM) Staff (2810) Mail Stop 1126 Washington, DC 20250-1125 <36cfr228a@fs.fed.us> Fax No.: (703) 605-1575 Attn: Attn: Director, Minerals and Geology Management (MGM) Staff, (2810) Re: PUBLIC COMMENTS ON THE PROPOSED RULE: AMENDMENT TO 36 CFR Parts 223, 228, 261, 292, and 293 (RIN 0596-AC38); and, INFORMATION COLLECTION REQUIREMENT COMMENTS ON OMB No. 0596-NEW In accordance with the Request for Public Comments and the Request for Information Collection Requirement Comments: Federal Register Notice: Tuesday, March 25, 2008, (73 FR 15694) Dear Director of MGM: I am a small miner (a small business), as defined by the Regulatory Flexibility Act. I own a small business; a small mining concern. I am also President of Equal Access to Justice, Inc., a California non-profit organization and a 501(c)(3). Equal Access to Justice, Inc., hereinafter (the "EAJ"), is concerned about these Proposed Rules because of the type of and the shear number of procedures and laws violated by the promulgation thereof. The proposed rules, here, Amendments to 36 CFR Parts 223, 228, 261, 292, and 293 (RIN 0596-AC38), hereinafter (the "Proposed Rules"), would substantially and adversely affect my personal (individual) interests, as well as my personal (individual) rights. They would also substantially and adversely affect a number of citizens numerous interests and rights; the numerous interests and rights for which EAJ is mandated to protect. They would also substantially and adversely affect a number of EAJ's members numerous interests and rights. The information collection requirements information, hereinafter (the "Information Collection Requirements"), contained in, and submitted with or in support of, these said Proposed Rules would also substantially and adversely affect my personal (individual) interests, as well as my personal (individual) rights. They would also substantially and adversely affect a number of citizens numerous interests and rights; numerous interests and rights for which EAJ is mandated to protect. They would also substantially and adversely affect a number of EAJ's members numerous interests and rights. I note that the Director of MGM has directed that; "Comments concerning the information collection requirements contained in this action should reference OMB No. 0596-New, the docket number, date, and page number of this issue of the Federal Register . Comments should be sent to the address listed in the above paragraph." (73 FR 15694) Though, it is not required by law to comply to this directive, for all of my, and EAJ's, comments to follow, which concern the Information Collection Requirements, contained in, or supporting, the said Proposed Rules, hereinafter (the "Information Collection Requirements Comments" or the "Information Collection Requirements Comment"), I hereby reference OMB No. 0596-New, RIN 0596-AB98, Tuesday, March 25, 2008, (73 FR 15694). Additionally, in each such said Comment I will state that it is an "Information Collection Requirements Comment". I note that the Director of MGM has directed that; "Please confine written comments to issues pertinent to the proposed rule; explain the reasons for any recommended changes; and, where possible, reference the specific wording being addressed. (73 FR 15694) Though, it is not required by law to comply to this directive, for all of my, and EAJ's, comments to follow, which concern the Information Collection Requirements, contained in, or supporting, the said Proposed Rules, and/or the Proposed Rules, I will attempt to comply. Though, I provide some reasons for some of our recommended changes, it is not necessary to provide them all, at this time. This is not a scoping. Were FS to have submitted these Proposed Rules for us to scope, as they were required by law to do, but failed to, we would have provided a full, and authoritatively supported, set of recommended changes. We commented on all prior drafts of these Proposed Rules; and, as such, should have been consulted for scoping. As it is, FS has left us with insufficient time for us to scope, here; thereby, making it impossible for us to do so. We cannot scope and oppose at the same time. Moreover, it is futile to scope what has already been determined. The following are my, EAJ's, and EAJ's members, public comments, and my, EAJ's, and EAJ's members, information collection requirements comments, in objection to the Proposed Rules and in objection to the Information Collection Requirements contained in, or in support of, them. I make said comments both, as an individual, and as President of Equal Access to Justice, Inc., and as the appointed representative of EAJ's members. Commentators' Interests I, WALTER H. EASON, JR. am a small miner. I own mining claims, and interests in mining claims, in the National Forests. I have mined in the National Forests and intend to continue to do so. I substantially depend upon the income from said mining activities for my subsistence. The Proposed Rules would substantially and adversely affect these interests, as well as my constitutional rights. I am also President of Equal Access to Justice, Inc., a California non-profit organization and a 501(c)(3). EAJ's interests, here, are those of many of its members and all citizens of the United States. Many of EAJ's members, and citizens of the United States, are miners, mining companies, and mining associations; many of whom own mining claims, and interests in mining claims, in the National Forests. Said individual members, company members, association members, and citizens of the United States, have mined in the National Forests and intend to continue to do so. Many of whom substantially depend upon the income from said mining activities for their subsistence. I, and EAJ, and EAJ's members, have an informational interest in obtaining accurate information about the environmental and economic impacts of mining and the effects of current and proposed regulations addressing those impacts. I, and EAJ's members, have held and expect to hold Standard State Suction Dredge Permits to suction dredge on some of said mining claims. Prospecting and mining in the National Forest, with a suction dredge and other mining equipment, is and has been, for a significant part, my, and EAJ's members, livelihood. As mining claim owners, and prospectors, I, and EAJ's members, are interested in the viability of the ecosystems and the species indigenous to the National Forests. We have a pecuniary vested interest in their integrity and viability. Should these the ecosystems in these National Forests become inviolate, we will no longer be able to do business there. As residents, near the National Forests, I, and EAJ's members, are interested in the water quality of the rivers and streams in those National Forests. This is because we and our family's drinking water, and ultimately our health, are directly dependent upon the quality of those waters. I, and EAJ, and EAJ's members, rely on Forest Service's, (hereinafter the "FS") to comply fully with the provisions of the law as is more fully delineated herein below. "Bonded Notice", "Notice of Intent", and "Plan of Operations" are used Throughout This is both a Public Comment and an Information Requirements Collections Comment. As discussed in these Comments, the terms "bonded notice", "notice of intent" and "plan of operations" refer to the proposed rule 228.4 and to any other rules, proposed in these Proposed Rules, where those terms are mentioned. "Environmental Assessment", and "Environmental Impact Statement" are used Throughout This is both a Public Comment and an Information Requirements Collections Comment. As discussed in these Comments, the terms "environmental assessment", and "environmental impact statement", refer to the proposed rule 228.6 and to any other rules, proposed in these Proposed Rules, where those terms are mentioned. "Validity Examination" and "Surface Use Determination" and "Reasonably Incidental Use Determination" is used Throughout This is both a Public Comment and an Information Requirements Collections Comment. As discussed in these Comments, the combined term "validity examination", which we use and have combined, refers to the terms, "mineral examination" and "to determine the validity", specified in the proposed rule 228.14 and in any other rules, proposed in these Proposed Rules, where those terms are mentioned. As discussed in these Comments, the term "reasonably incidental use determination" or "determination of reasonably incidental use", which we use and have combined, refers to the terms, "surface use determination" and "reasonably incident use" and "reasonably incident", specified in proposed rule 228.10 and in any other rules, proposed in these Proposed Rules, where those terms are mentioned. Proposed Rules preclude Small Mining by Small Miners This is both a Public Comment and an Information Requirements Collections Comment. Under these Proposed Rules, in order to operate a commercial mining operation, at a profit, it would be necessary to fully and meticulously comply with the numerous (new) demands of these Proposed Rules. To do that it would be necessary to prepare a mountain (a ton) of paperwork. To do that, provide this mountain (ton) of paperwork, it would be necessary for the operator to retain (pay for) the services of a number of licensed (experienced and authorized, previously approved by FS) professionals; attorneys, planners, civil engineers, mining engineers, geologists, hydro-geologists, biologists, contractors, etc. No small miner would be able to perform any of these services, himself. If a small miner were qualified to perform any of these services, he would not be a small miner. No investor would allow a small miner, who's only contribution was labor, to be the owner of a mining concern that would or could operate under these Proposed Rules. No small miner has the funds to pay for these services or the mountain (ton) of paperwork required by these Proposed Rules. If a small miner had the funds to pay for these services and the mountain (ton) of paperwork required by these Proposed Rules, they would not be a small miner. Nor, would they be small mining. Traditionally, a small miner would perform all the services required to mine in the National Forests and still be able to spend most of his day actually and personally performing the labor of mining. This was the intent of the Mining Law of 1872 and all its amendments, as well; to allow a small miner to do this. Here, FS, by making it so a small miner cannot do any of the services required, and by making it impossible for a small miner to own a mining operation, precludes small mining by small miners, altogether. In so doing, FS, by these Proposed Rules, will significantly change, if not rescind, the Mining Law of 1872, as amended. This they, FS, do not have the jurisdiction or the authority to do. This is delineated more fully herein. Most profound, is that FS will cause more trees to be cut down, by these Proposed Rules, by the mountain of paperwork they are requiring, than they will save. Clearly, they know these Proposed Rules are preclusive which means they intended this result; to preclude mining by small miners, as was traditionally done and as was, and still is, the intent of Congress. Proposed Rules Fail to address FS's Concerns and are Misleading This is both a Public Comment and an Information Collection Requirements Comment. FS stated concerns are: "The Forest Service briefed those representatives as to what the agency then saw as its six main concerns with its current locatable mineral operations. These were: (a) New provisions that essentially formalize the current process for, reviewing and approving proposed plans of operations; (b) Streamlining the process for approving short-term, low impact operations; (c) New provisions that improve the process and criteria for modification of an approved plan of operations; (d) Providing additional detail with respect to the process the Forest Service uses to inspect operations and to remedy the operator's or the operations' noncompliance with applicable requirements; (e) A new provision that explains the Forest Service's and the operator's responsibilities under the Clean Water Act in connection with the review and approval of proposed plans of operations; and (f) Providing additional detail with respect to the process the Forest Service uses to review and adjust reclamation bonds to ensure that those bonds cover the full cost of reclaiming National Forest System lands." (73 FR 15694 at 15695.) As is explained more fully herein below, the new provisions of these Proposed Rules do not formalize the current process. Nor, do they streamline the process approving short-term, low impact operations. Nor, do they improve the process and criteria for modification of an approved plan of operations. Nor, do they provide additional detail with respect to the process the Forest Service uses to inspect operations and to remedy the operator's or the operations' noncompliance with applicable requirements. Nor, do they explain the Forest Service's and the operator's responsibilities under the Clean Water Act in connection with the review and approval of proposed plans of operations. Nor, do they provide additional detail with respect to the process the Forest Service uses to review and adjust reclamation bonds to ensure that those bonds cover the full cost of reclaiming National Forest System lands. Thus, the Proposed Rules are not only misleading they fail to meet the concerns of FS. US v. Richardson does not Confer Authority, allow, FS to perform Validity Exams, to Establish Procedures for Validity Exams or to Forego established Validity Exam Procedure This is a Public Comment. FS implies that they can perform validity examinations, and determinations of what is reasonably incident to operations, (proposed 228.10 and others), under the authority conferred upon them by 30 USC  612 and the Richardson court. "The term "reasonably incident" would be defined to clarify that, by law, mineral operators are restricted to using only reasonable methods of surface disturbance that are appropriate to their stage of operations regardless of the validity of any mining claim on which the operations take place. This clarification is warranted by case law (such as United States v. Richardson, 599 F. 2d 290 (1979); cert. denied, 444 U.S. 1014 (1980)) and the Surface Resources Act of 1955 (30 U.S.C. 612). Reasonable and necessary uses of the National Forest System lands must employ sound and accepted practices to avoid or minimize adverse environmental impacts. These uses also must employ sound, accepted operational methods appropriate for the applicable stage of mining operations, including prospecting, exploration, production (mining and processing), or [*15696] reclamation. The Forest Service General Technical Report INT-35, Anatomy of a Mine, from Prospect to Production (section 10-7), describes and gives examples of the reasonable stages of a mining operation." They also imply that they can: forego established validity examination procedures; forego established procedures for making determinations of reasonably incident; can establish validity examination procedures; and, can establish procedures for making determinations of reasonably incident. Richardson did not hold upon any of these implications. FS asked Richarson to explore by boring instead of trenching. They did not determine, whereas they do by these Proposed Rules, whether his claims were valid, beforehand. They allowed him to explore his claims to establish the validity thereof, whereas here, FS is claiming they, alone, have the exclusive power to determine validity and, the claimant does not. (Also see proposed 228.14(g)(1)(i) wherein FS claims that this is discretionary, that they may allow it.) This is not the law. It is not discretionary. Pursuant to 5 USCA  554-557, contest proceedings, validity examinations, and FS determinations of what is reasonably incident to operations, are subject to the APA. (See Collard v. USDI (CA9 (Idaho) 1998) 154 F.3d 933, (holding that mining claim contest proceedings are conducted in accord with 554 of the APA).) Under the APA, a claimant has a right to perform post-withdrawal sampling of his own to obtain evidence for a contest hearing, or evidence for a determination of what is reasonably incident to operations, or evidence for a validity examination, to show that his claim is valid and to controvert evidence, such as a mineral examination performed by the government, or a determination of what is reasonably incident to operations, submitted by the government. (5 USCA 554(a), (The agency shall give all interested parties the opportunity for submission of facts; 16 USCA 460bbb-3, (The Secretary shall administer the recreation area in accordance with applicable regulations); 36 CFR  292.62(b), (The authorized officer shall authorize those mineral operations that may be necessary for the purpose of gathering information to obtain evidence for a contest hearing regarding the claim's validity).) Post-withdrawal samples, performed by the contestee, are admissable. (Shaw v. US (1987) 13 Cl.Ct.7, 29, (holding that post-withdrawal samples are admissable).) FS is Notorious (Infamous) for Performing Mineral Examinations Unlawfully This is a Public Comment. As is delineated more fully herein, FS, by these Proposed Rules, proposes to establish new and different procedures for performing validity examinations and to establish new and different procedures for make determinations as to reasonably incidental use. FS's history, in this regard, proves they should not, and cannot, be allowed to do so. In every instance, where FS personnel have performed a mineral examination, they have never, not once, complied with the procedures established by BLM, (set forth in the "Mineral Examiners Handbook" and the "Validity Examination Procedures", and other such publications for such purposes, published by BLM), for doing so. No one has every passed a mineral examination performed by FS personnel. Thus, FS has no intention of doing so now; performing lawful mineral examinations. As FS personnel have never performed proper mineral examinations, and they, in these Proposed Rules, attempt to circumvent the legally established procedures for performing lawful mineral examinations and lawful determinations as to reasonable incidental use, these Proposed Rules are not only void but, FS personnel can no longer perform mineral examinations. Their bias against mining is now known and proclaimed by these Proposed Rules. FS must prepare an EIS for each and every Validity Exam and each and every Determination of Reasonably Incidental Use This is both a Public Comment and an Information Collection Requirements Comment. By these Proposed Rules, FS proposes to perform determinations of reasonably incidental use, (proposed 228.10 and others) and to perform validity examinations, for each and every mining claim. Said determinations of reasonably incidental use and validity examinations would, necessarily involve the use of both mechanized and heavy equipment and in the habitat of threatened and/or endangered species. Thus, FS would have to prepare an EIS; and, for each and every such determination of reasonably incidental use, and for each and every such validity examination, to be made. FS will also have to provide written notice to the operators. (See 36 CFR  292.64(a).) FS, will have to provide a written decision, and reasons for determination, that there is insufficient evidence of valid existing rights. (See 36 CFR  292.64(b)(1).) FS, will have to provide written notice showing good cause for extending the period for making a determination of validity. (See 36 CFR  292.64(a)(1).) FS will have to provide the report(s) on past history of mining activity in the area of the claims for which they will perform their determinations. (See Northern Alaska Environmental Center v. Lujan (CA9 (Alaska) 1989) 872 F.2d 901, 905-06, (for validity determination of placer mining claims, the Secretary checks the past history of mining activity in the area).) FS will have to provide the Geological Survey and Bureau of Mines Reports reviewed to make their said determinations. (See Northern Alaska Environmental Center v. Lujan (CA9 (Alaska) 1989) 872 F.2d 901, 905-06, (for validity determination of placer mining claims, the Secretary checks the Geological Survey and Bureau of Mines Reports).) FS will have to interview the claimants to make these said determinations. (See Northern Alaska Environmental Center v. Lujan (CA9 (Alaska) 1989) 872 F.2d 901, 905-06, (for validity determination of placer mining claims, the Secretary interrogates the claimants).) FS will have to request, and review, supplemental information to make these said determinations. (See Northern Alaska Environmental Center v. Lujan (CA9 (Alaska) 1989) 872 F.2d 901, 905-06, (for validity determination of placer mining claims, the Secretary reviews any supplemental information filed by the claimant).) FS has not complied with the Information Collection Requirements concerning the preparation of any of these said documents. For said failure, they cannot therefore enforce these Proposed Rules. This is delineated more fully herein. FS does not have the budget, or the personnel, (trained or otherwise), to prepare any of these said documents. For said inability, they cannot therefore enforce these Proposed Rules. This is delineated more fully herein. An EIS is Required due to the Substantial Changes being made, here FS claims that the Proposed Rules merely revise and update their current regulations. "This proposed rule revises and updates the regulations for locatable mineral operations on the National Forests. Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43168; September 18, 1992) excludes from documentation in an environmental assessment or impact statement "rules, regulations, or policies to establish servicewide administrative procedures, program processes, or instruction." This proposed rule clearly falls within this category of actions and no extraordinary circumstances exist which would require preparation of an environmental assessment or an environmental impact statement. A final determination will be made simultaneously with the adoption of the final rule." As is shown, on these Comments, this is entirely untrue. FS, by these Prosed Rules, as is delineated more fully herein, is substantially changing their current regulations. Thus, an environmental impact statement is required for, and before, the preparation thereof. Mining Law permits Exploration and Extraction of Locatable Minerals, as well This is a Public Comment. FS's proposed rule, 228.1, is incomplete. The Mining Law not only confers "a statutory right to enter upon certain Federal lands to search for locatable minerals,"; it confers a statutory right to locate and to mine, (explore and extract), locatable minerals, (including precious metals and gems), as well. Term "locatable mining operations" is Vague, Standardless, Oppressive, and Preclusive This is both a Public Comment and an Information Collection Requirements Comment. FS's proposed subsection rule, 228.2(b), mentions the term, "locatable mining operations". FS does not define this term. By its plain meaning, this term implies that FS must perform a validity examination to determine whether the claim is locatable before they can determine whether "Certification or other approval issued by State agencies or other Federal agencies of compliance with laws and regulations" relate to that claim. Determination of Similarity, Case by Case, Nullifies the Purpose of making Them This is both a Public Comment and an Information Collection Requirements Comment. The language of FS's proposed subsection rule, 228.2(b), renders it meaningless; nullifies its stated and intended purpose. If, for each notice of intent, bonded notice, and/or each operating plan application, FS must determine whether "Certification or other approval issued by State agencies or other Federal agencies of compliance with laws and regulations relating to locatable mining operations" is "similar or parallel to requirements of this subpart" and whether said Certification or approval "will be accepted as compliance with the applicable requirements of this subpart", as is implied, then, doing so, would render the reasons for accepting said Certification or approval meaningless. Impliedly, the purpose is to reduce redundancy but, instead, the actual effect would be to multiply the requirements and the paperwork. It is Inappropriate, Inconsistent, and Unlawful to Redefine the Term "day" This is a Public Comment. FS's proposed subsection rule, 228.3(b), redefines the term "day". This definition is inconsistent with FS's appeals rules, with the Federal Rules of Civil Procedure, and with the Federal Rules of Criminal Procedure. Consistency is necessary. Definitions of "Operations" and "Operator" cannot Apply to Recreation This is a Public Comment. FS's proposed subsections rule, 228.3(f) and (g), defines the terms "Operations" and "Operator" in such a way as to include persons recreationally collecting minerals. By so doing, making these Proposed Rules applicable to recreational mineral collecting, FS is precluding recreational mineral collecting, altogether. This is impermissible for reasons which will be explained more fully herein. FS is establishing New Validity Examination Procedures and Usurping Authority This is both a Public Comment and an Information Collection Requirements Comment. FS's proposed subsection rule, 228.3(j) defines the term "reasonably incident". (also see proposed 228.10.) FS's proposed subsection rule, 228.3(o), defines the term "surface use determination". These definitions establish new, different, and unscientific, methods for performing a validity examination and for making determinations of reasonably incidental use. They also delegate the performance of validity examinations, and the making of determinations of reasonably incidental use, to FS personnel. None of these is allowed, or authorized, by law. FS personnel, no matter what their qualification or certifications, are not authorized to make determinations of validity. Nor, are FS personnel authorized to establish procedures for making validity examinations or validity determinations. Nor, are FS personnel authorized to make determinations of reasonably incidental use. Nor, are FS personnel authorized to establish procedures for making determinations of reasonably incidental use. By these definitions, FS is requiring a validity examination, and a determination of reasonably incidental use, for each mining claim. FS does not have the budget or the personnel to perform validity examinations or determinations of reasonably incidental use. This is delineated more fully herein. Definition of "Reclamation" is Vague, Standardless, Oppressive and Preclusive This is a Public Comment. FS's proposed subsection rule, 228.3(k) defines the term "reclamation". By this definition, operators are required to, in their reclamation activities, to achieve an "environmentally stable condition" no matter how "long-term" it takes to do that. There is no limit to the term of liability. There is no explanation or definition as to what an "environmentally stable condition" is. Thus, it must be presumed that the operator is required to return the land which they use, and the surrounding land to it, to its pre-civilization, indigenous, condition, no matter how long it takes. To do this, the operator would, necessarily, have to totally and completely clean up and restore said land; which means they must assume liability for, all prior uses and for all prior users. Essentially, this definition requires, as a condition of approval, that the miners completely restore the National Forests to their pre-civilization, indigenous, condition. This is not only unlawful, it precludes commercial mining; and, especially by small miners. To place the burden of total cleanup and complete restoration of the National Forests, squarely and purely upon the shoulders of today's small miners, is impractical and unrealistic, to say the least. This is delineated more fully herein. Definition of "Significant Disturbance of Surface Resources" is Vague, Standardless, Oppressive and Preclusive This is a Public Comment. FS's proposed subsection rule, 228.3(n), defines the term "significant disturbance of surface resources". By this definition an operator adopts the significant disturbance of surface resources from all prior users and from all prior uses. In other words this definition attaches, assigns, the liability for all prior uses, by all prior users, on the mining claimant. There is no explanation or definition as to what an "environmentally stable condition" is. Thus, it must be presumed that an "environmentally stable condition" is its pre-civilization, indigenous, condition. Almost, without exception, all National Forests lands are disturbed, significantly, by prior uses and by prior users. In other words, the land is already disturbed to the extent that FS is "requiring the use of reclamation measures in order to return National Forest System lands and surface resources affected by operations to a safe and environmentally stable condition". Hence, any activity, whatsoever, under this definition, would be a significant disturbance of surface resources. Essentially, this definition requires, as a condition of approval, that the miners completely restore the National Forests to their pre-civilization, indigenous, condition. This is not only unlawful, it precludes commercial mining; and, especially by small miners. To place the burden of total cleanup and complete restoration of the National Forests, squarely and purely upon the shoulders of today's small miners, is impractical and unrealistic, to say the least. This is delineated more fully herein. FS does not Know which Roads are Maintained This is a Public Comment. FS states, in subsection rule 228.4(a)(1)(i), that if the road is not maintained, then a notice of intent is required. FS does not know which roads are maintained. Certainly, the miners don't. This is delineated more fully herein. The Proposed Rules no longer allow a Small Miner to Sell the Minerals retrieved, during Exploration, which, effectively, Rescinds the Mining Law of 1872, as Amended This is a Public Comment. The language in FS's proposed subsection rule, 228.4(a)(1)(ii), "for analysis and study", can, and will, be interpreted to mean that, an approved plan of operations is required before one can sell any mineral. This means that if one sold a mineral, and did not have an approved plan of operations when they sold it, they have criminally trespassed upon National Forest System lands. Traditionally, a small miner would both, pay themselves for their labor, and finance their future operations, from the proceeds gained from the sale of the minerals they recovered from their initial operations. This was the intent of the Mining Law of 1872 and all its amendments, as well; to allow a small miner to do this. Here, FS, by not allowing the small miner to sell the minerals retrieved from their exploratory operations, precludes a small miner from both, paying themselves for their labor, and from financing their future operations, from the proceeds gained from the sale of the minerals they recovered from their initial operations. In so doing, FS, by these Proposed Rules, will significantly change, if not rescind, the Mining Law of 1872, as amended. This they, FS, do not have the jurisdiction or the authority to do. Effectively, it would preclude small scale mining, altogether. This is delineated more fully herein. FS does not Know the Difference between Disturbances caused by Miners and other Users This is a Public Comment. FS states, in subsection rule 228.4(a)(1)(v), that if the; "... disturbance of National Forest System surface resources substantially different than that caused by other National Forest System users who are not required to obtain a special use authorization, contract, or other written authorization from the Forest Service before beginning such use;..."; then a notice of intent is required. FS does not know the difference between disturbances caused by miners and other users. Certainly, the miners don't. This is delineated more fully herein. Limiting Occupancy is for Recreational Camping, only; and, cannot be Applied to Mining This is a Public Comment. The language in FS's proposed subsection rule, 228.4(a)(2), concerning occupancy, can, and will, be interpreted to mean that, an approved plan of operations is required before one can camp in any single National Forest for longer than 14 days, cumulatively counted, in any single year. This means that if one is in a National Forest for longer than 14 days, per year, and did not have an approved plan of operations when they were, they have criminally trespassed upon National Forest System lands. Traditionally, a small miner would be allowed to occupy National Forest System lands, all year round. In this way, by year round occupancy, a small miner would be able work enough to be able to both, pay themselves for their labor, and finance their future operations, from the proceeds gained from the sale of the minerals they recovered from their initial operations. This was the intent of the Mining Law of 1872 and all its amendments, as well; to allow a small miner to do this. Here, FS, by not allowing the small miner to occupy, be in, a National Forest for any longer than 14 days, per year, (without an approved plan of operations), precludes a small miner from both, making a living, and from financing their future operations from their initial operations. They cannot make enough money, in two weeks, to finance anything, what to speak of make a living and finance their future mining operations. In so doing, FS, by these Proposed Rules, will significantly change, if not rescind, the Mining Law of 1872, as amended. This they, FS, do not have the jurisdiction or the authority to do. Effectively, it would preclude small scale mining, altogether. More on the effect of restricting occupancy, for mining, without an approved plan of operations, to 14 days, cumulatively, per year, per National Forest, is delineated more fully herein. FS has a Duty to Inspect each Claim every 30 days, and to File a Written Report, thereafter This is a Public Comment and an Information Collection Requirements Comment. The time to comply with a notice of noncompliance is not the same as the time to inspect. FS officers "will periodically inspect operations". (proposed 228.8(a).) A "notice of noncompliance" can be issued, as a result of such inspections. (proposed 228.8(b).) The time when and between each such inspection is not specified. Never-the-less, "generally", an operator "will not be given more than 30 days to complete actions" stated in a notice of noncompliance and to remedy that noncompliance. (proposed 228.8(b)(3).) If FS officers inspect once a year then the time to comply to a notice of noncompliance should be one year. If FS officers inspect once every two years then the time to comply to a notice of noncompliance should be two years. The reasoning is obvious. It is inappropriate to allow a noncompliance to go on for some time and then demand that it be remedied in a much shorter time. Once FS places the duty to inspect, upon themselves, as they do here, then they would be negligent if they do not inspect. It necessarily follows that, if a noncompliance must be fixed (remedied) in 30 days, generally, then FS has a duty to inspect every 30 days. FS has not complied with the Information Collection Requirements concerning this said duty to inspect each mining claim, (not at all and, certainly, not for every 30 days), and to provide a written report after each said inspection. For said failure, they cannot therefore issue a notice of noncompliance, under these Proposed Rules. FS does not have the budget, or the personnel, (trained or otherwise), to inspect every mining claim every 30 days. FS doesn't even have the budget, or the personnel, (trained or otherwise), to inspect every mining claim every year. It appears that FS intends to only inspect operations where there is a notice of intent, bonded notice, or a plan of operations, on file. As FS has not complied with the Information Collection Requirements concerning any other mining claims, other than the ones with these said papers on file, it cannot issue a notice of noncompliance for them; the other ones without such said paper on file. This is delineated more fully herein. FS cannot Treat all Species as Threatened and Endangered but does This is a public comment. By the language in proposed subsection rule 228.9(f), FS is treating all species as though threatened and endangered. "Fisheries and wildlife habitat. In addition to complying with the water quality requirements set forth in paragraph (b) of this section, the solid waste requirements set forth in paragraph (c) of this section, and the endangered species requirements set forth in paragraph (e) of this section, the operator must take all practical measures to maintain and protect fisheries and wildlife habitat that may be affected by the operations." The language in proposed subsection rule 228.9(k)(3)(vi) "rehabilitate fisheries and wildlife habitat;" has the same said effect. If the plain meaning of this language is applied, as it will be, it is not possible to both mine and do this. Not only is this preclusive it is against law. This is delineated more fully herein. FS cannot have it Both Ways; as Far as Allowing the Public Access This is a Public Comment. FS proposes that the operator close roads to the public. (Proposed 228.9(g)(1).) They also require that the operator not close off access to National Forest System property except right where their current diggings are. (Proposed 228.10(b)(1).) FS needs to make up their collective mind, here. Which is it going to be? This is delineated more fully herein. The term "concurrent" for Reclamation Measures is Vague, Standardless and Preclusive This is a Public Comment. By the language proposed in subsection rule 228.9(k), FS is requiring "concurrent" reclamation measures. "(k) Reclamation. The operator must reclaim National Forest System lands disturbed by the operations by taking concurrent, seasonal, interim and long-term measures to, where practical, prevent or otherwise minimize onsite and off-site damage to the environment and National Forest System surface resources." It is not possible to fill in a hole while digging it. Moreover, it is not practical. This requirement leaves too much to interpretation. It is vague and standardless. Because the term can easily be abused FS should specific what concurrent reclamation measures are necessary. This is delineated more fully herein. FS does not allow lawful Prospecting in a Wilderness Area, though they Claim they do This is a Public Comment. FS recognizes that 228.14 and part 293 only applies to Congressionally designated Wilderness Areas. (Proposed 228.14(a) and authority for part 293.) Wilderness Study Areas, ("WSAs"), and "Roadless Areas", or "Primitive Areas", or anything other than a Congressional designated wilderness area, do not therefore apply. FS proposes to allow prospecting in a lawfully designated Wilderness Area, as they state they are required to do, by law; (proposed subsection rule 228.14(e).) Before prospecting, though, the operator must acquire an approved plan of operations for that prospecting. (Proposed 228.14(e)(3)(i).) However, FS will not approve such an operating plan until the operator passes a validity examination. (Proposed 228.14(f).) A validity examination is to prove that extraction can be done profitably. That is the reason that it is not done until a discovery is made. Thus, it is not possible to pass a validity examination for prospecting. To require a validity examination for prospecting activities is therefore to preclude prospecting which, FS, admits is unlawful for them to do. Never-the-less they are doing it anyway, (precluding prospecting in a Wilderness Area) and by these said Proposed Rules. This is delineated more fully herein. FS impliedly claims they have the Authority to Designate "National Forest Wilderness" Areas, and "Primitive Areas", and to Manage them, which they do not This is a Public Comment. FS appears to imply, by the language it uses in proposed rule 228.14 and part 293, and other rules and parts, such as "National Forests Wilderness" and "Primitive Areas", and other such language, that it has the authority to designate areas as wilderness or primitive and/or to treat areas as wilderness or primitive that have not been so designated by Congress or that have been released by Congress. This is not true as will be explained more fully herein. To begin, there are no national forest wilderness's, or wilderness areas, or primitive areas, managed by FS. There are no primitive areas, whatsoever. This is because all wilderness areas and primitive areas, not already released by Congress, are all under the USDI and have been designated, by Congress, as a wilderness area. FS is under USDA. Any such said language, making said implications, in these Proposed Rules, must be removed. Until removed these Proposed Rules are void; and, as such, they cannot therefore be enforced. This is delineated more fully herein. Roadless Areas are for USDI not FS This is a Public Comment. Congress named prospective wilderness areas in lands managed by the Department of the Interior, to be studied, as "roadless areas". (16 USCA  1132(c).) This is further evidenced by the fact that, for lands in the national forests, Congress named prospective wilderness areas, to be studied, as "primitive areas". (16 USCA  1132(b).) As such, Forest Service does not, nor does the Department of Agriculture, have the authority or the jurisdiction to recommend roadless areas for inclusion in the NWPS. This is delineated more fully herein. Only Areas classifed as "primative" on September 3, 1964 This is a Public Comment. Only areas, in the national forests, classified on September 3, 1964 by the Secretary of Agriculture or the Chief of the Forest Service as "primitive" could have been considered for wilderness designation. (16 USCA  1632(b).) This is delineated more fully herein. Only Congress can Designate Wilderness Areas This is a Public Comment. Recommendations for inclusion in the NWPS can be made, but to the President. (16 USCA  1632(d).) Each primitive area, in the national forests, is to be recommended for inclusion in the wilderness system by the President. The President has not done that for these Proposed Rules or for any area, whatsoever. FS is hedging, here, which is strictly against law. Each recommendation of the President for designation as "wilderness" shall become effective only if so provided by an Act of Congress. (16 USCA  1632(b).) This is delineated more fully herein. Studied Roadless Areas are to be Managed for Multiple Use This is a Public Comment. Pursuant to the Wilderness Act of 1964 (16 USCA  1132(b).) and the FLPMA of 1976 (43 USCA  1782), FS was to manage legitimately established primitive areas, roadless areas, or wilderness study areas, for multiple use, in the interim. Said directives, by Congress, were to continue "until Congress has determined otherwise". (16 USCA  1132(b) and 43 USCA  1782) Congress has, indeed, determined otherwise; and, in the Wilderness Acts of 1984. (For example see, 1984, Pub.L. No. 98-428; and, Utah Environmental Congress v. Bosworth (D.Utah, 2003) 285 F.Supp.2d 1257, 1263) Congress expressly released all roadless areas, primitive areas, and WSAs, not designated as wilderness, for "nonwilderness uses" in the 11 western states. (for example, see,1984, Pub.L. No. 98-428, Title II, Sec. 201) The subject roadless areas, primitive areas, or wilderness study areas, located on FS managed lands, that were previously studied, are subject to the Wilderness Acts of 1984 because they were reviewed in the subject final environmental statement and referenced. (For example, see, 1984, Pub.L. No. 98-428, Title II, Sec. 201) Not only did Congress release the roadless areas, the WSAs, and the primitive areas, previously studied, in the 11 western states, but Congress also mandated that roadless areas, WSAs, and primitive areas, so released, "shall be managed for multiple use in accordance with land management plans". (For example, see, 1984, Pub.L. No. 98-428, Title II, Sec. 201) Because the Proposed Rules propose to recommend areas which have been released, they are, to that extend, and for these reasons, unlawful. This is delineated more fully herein. The Wilderness Act of 1964 does not Preempt MUSYA This is a Public Comment. By its own language, the Wilderness Act of 1964 does not interfere with MUSYA, (16 USCA  528-531). (16 USCA  1133(a)(1).) Hence, the roadless areas, WSAs, and primitive areas, so released, are to be managed for multiple use and in accordance with MUSYA. This is delineated more fully herein. Only Congress can approve Increases to Wilderness Areas This is a Public Comment. By these Proposed Rules, FS proposes to make each (designate or treat as if designated) area, in the National Forests, not already designated by Congress as a Wilderness Area, such as those areas FS calls "national forest wilderness" and "primitive", a Wilderness Area. If it is proposed to increase the size of any Wilderness Area by more than five thousand acres or by more than one thousand two hundred and eighty acres in any one compact unit the increase in size shall not become effective until acted upon by Congress. (16 USCA  1632(b).) Congress has not so acted on any of these said proposals, made in these Proposed Rules, to increase the size of Wilderness Areas or to treat areas, not so designated by Congress, as if designated a Wilderness Area; and, as such, FS cannot therefore treat any area, not designated by Congress a Wilderness Areas, as if it were a Wilderness Area. These Proposed Rules are void because they make said unlawful attempt. This is delineated more fully herein. Modifications to Existing Road Rights-of-Way are Unauthorized This is a Public Comment. Through these Proposed Rules, FS proposes to modify existing rights-of-way. The law protects prior valid existing grants of rights-of-way from modification. "Nothing in this subsection shall be construed as affecting any grants made by any previous Act. To the extent any such previous grant of right-of-way is a valid existing right, it shall remain in full force and effect unless an owner thereof notifies the Secretary of Agriculture that such owner elects to have a water system on such right-of-way governed by the provisions of this subsection and submits a written application for issuance of an easement pursuant to this subsection,..." (43 USCA  1761(c)(2)(A)) Road rights-of-way, in particular, are subject to regulations. (16 USC  533) There are no regulations authorizing this action; i.e. modifications to an existing road right-of-way. Moreover, a road right-of-way that has been granted can only be terminated by consent, by condemnation or by nonuse. (16 USC  534) No one would consent to termination of their road right-of-way. What FS does here would not even be legal in a Wilderness Area. Not only are valid existing rights protected in Wilderness Areas but, the owners of said rights are assured ingress and egress by customary means. (16 USCA  1134(b).) This is delineated more fully herein. Sensitive Species are not T&E Species This is a Public Comment. FS, by these Proposed Rules, affords T&E level protection to sensitive species. There is no policy, code, or regulation, which authorizes FS to treat sensitive species or their habitats as if they were T&E. To treat sensitive species as such, therefore, amounts to violations of the MUSYA and the purposes, Organic Act, for which the national forest were established. This is delineated more fully herein. Proposed Rules Violate MUSYA This is a Public Comment. MUSYA requires that the National Forests be used for multiple use. (16 USCA  528, 529 and 531) It does not, however, require that every forest provide for every one of the enumerated uses. (Sierra Club v. U.S. Dept. of Agriculture, 116 F.3d 1482 (Table)(CA 7 (Ill.) 1997)) Elimination of one established use over a forest, such as these Proposed Rules will cause, is a blatant violation of MUSYA. This is delineated more fully herein. The Preferred Method for Resolving Conflicts is not Authorized This is a Public Comment. By these Proposed Rules, FS's preferred method for resolving conflicts is to remove the conflicting use or area wherever possible. This preference method, in effect, gives a preference for the protection of species, other than human, over human use and, establishes all areas of the subject National Forests as Wilderness areas. The Proposed Rules are therefore nothing more than: "... further statewide roadless area review and evaluation of National Forest System land in the State of California for the purpose of determining their suitability for inclusion in the National Wilderness Preservation System." (PL 98-425, September 28, 1984, 99 Stat 1619, SEC. 111(b)(6).) Such further statewide review and evaluation, in the National Forests of the 11 western states, was expressly prohibited, unless expressly authorized by Congress. (See PL 98-425, September 28, 1984, 99 Stat 1619, SEC. 111(b)(6); and, Utah Environmental Congress v. Bosworth (D.Utah, 2003) 285 F.Supp.2d 1257) Congress has not expressly authorized this rule-making for the National Forests. As Congress has not expressly authorized this rule-making for the National Forests, the preferred method, and therefore the Proposed Rules, are therefore unlawful. Note that, within a multiple use area, the preferred method, established by law and code, is to mitigate uses to insignificance if possible. Here, no mitigation is being allowed. This is delineated more fully herein. No new Area can be Managed under the Preferred Method This is a Public Comment. By these Proposed Rules, FS is proposing the implementation of the "preferred method for managing conflicts", FS hopes to provide Wilderness level protection for the remaining areas within the National Forest System. By remaining we mean those areas categorized in RARE II as "Wilderness", "Nonwilderness" or, "Further Planning", which have not been designated as a wilderness area and, included in the NWPS, by Congress. (State of California v. Block (C.A.9 1982) 690 F.2d 753 at 758) RARE II directed that areas categorized as "Further Planning" would require unit management plans before they can be considered for inclusion. "A Further Planning designation meant that an area would be protected pending completion of unit management plans which would consider whether to recommend the area for inclusion in the NWPS." (State of California v. Block (C.A.9 1982) 690 F.2d 753 at 758) Here, FS does not propose to prepare any unit management plans for any of the areas categorized as Further Planning, prior to recommending their inclusion in the NWPS. Instead they made these Proposed Rules. As such, all areas categorized as Further Planning in the national forests cannot therefore be managed under the "preferred method for resolving conflicts". Moreover, Congress expressly provided that, Further Planning areas, not listed in the California Wilderness Act of 1984, are to be managed for multiple use.(PL 98-425, September 28, 1984, 99 Stat 1619, SEC. 111(b)(4)) Congress made the same law for each of the other 11 western states and I incorporate them herein by this reference. Accordingly, only Further Planning areas in California, listed in the Wilderness Acts of 1984, etc., could be planned for in any proposed unit management plans. As such, Further Planning areas cannot therefore be managed under the "preferred method for resolving conflicts". Areas categorized as Nonwilderness and, as Wilderness which were not included in the NWPS but reviewed, in California, are to be "managed for multiple use". (PL 98-425, September 28, 1984, 99 Stat 1619, SEC. 111(b)(4)) Congress made the same law for each of the other 11 western states and I incorporate them herein by this reference. As such, areas categorized as Nonwilderness or Wilderness, in the 11 western states, cannot therefore be managed under the "preferred method for resolving conflicts". This is delineated more fully herein. Only Congress can remove Multiple Use Designations This is a Public Comment. By these Proposed Rules, FS gives Wilderness level protection to the remaining areas within the National Forest System. This is strictly against the law. To protect an area, to this degree, FS would necessarily have to categorize such an area as Wilderness. Designation of wilderness or, increasing the size of a designated wilderness, can be effected only by "Act of Congress". (16 USCA  1132(b).) As such, these Proposed Rules cannot therefore, effectively, make any new wilderness designations whatsoever. Nor, can they increase the size of any existing wilderness area. (Idaho Conservation League v. Mumma (C.A.9 1992) 956 F.2d 1508 at 1511) This is delineated more fully herein. EISs cannot be Incorporated by Reference This is a Public Comment. The Proposed Rules incorporates EISs and other EAs and FONSIs, by reference. None of them included a hydrology report. Nor, have these Proposed Rules done so. Private entities are not exempt from the registration requirements of the Professional Engineers Act, as are Federal officers and employees. (Ca. Bus. & Prof. Code  6704, 6739 and 6787) No civil engineer's signature or stamp appears on any of the incorporated documents or this Proposed Rules, as is required. (Ca. Bus. & Prof. Code  6735) We presume that no civil engineer's signature and stamp appears anywhere on said documents because no licensed civil engineer either supervised or prepared the hydrology studies for them. As the said hydrology studies were prepared in violation of the California Professional Engineers Act, they are therefore void from the beginning. A final EIS, incorporated within (5) years, must still be updated. (24 CFR  58.53(b)) Updates must; (1) reflect any significant revisions made to the assumptions under which the original EIS was prepared; and, (2) reflect new environmental issues and data or legislation and implementing regulations which may have significant environmental impact on the project area covered by the prior EIS. (24 CFR  58.53(b)(1-2)) A final EIS, incorporated within (5) years, must include; (1) References to the prior EIS and its evaluation of the environmental factors affecting the proposed subsequent action subject to NEPA; (2) An evaluation of any environmental factors which may not have been previously assessed, or which may have significantly changed; (3) An analysis showing that the proposed project is consistent with the location, use, and density assumptions for the site and with the timing and capacity of the circulation, utility, and other supporting infrastructure assumptions in the prior EIS; and,(4) Documentation showing that where the previous EIS called for mitigating measures or other corrective action, these are completed to the extent reasonable given the current state of development. A final environmental impact statement, (EIS), cannot be incorporated by reference or tiered off of if a court has declared it inadequate. (24 CFR  58.53(c)) When incorporating a document, the person doing so takes responsibility for it. (Air Line Pilots Association, International v. Delta Air Lines, Inc., 863 F.2d 87, 94 (CADC, 1988).) The incorporation by reference must meet a general standard of reasonableness. (Sierra Club v. Babbitt, 69 F.Supp.2d 1202, 1217; National Resources Defense Council v. Duvall, 777 F.Supp. 1533, 1539 (ED Cal., 1991)) A civil engineer takes responsibility for the documents he/she prepares or supervises. (Ca. Bus. & Prof. Code  6703 and 6735; 16 CCR  404.1) And, a hydrologist is professionally negligent when he/she fails to practice hydrology in a manner which a reasonable hydrologist would. (Ca. Civ. Code  1714) Professional negligence may be presumed. (Ca. Evid. Code  646) By incorporating the EISs and EAs and FONSIs the FS assumes responsibility for the hydrology studies therein. By that incorporation, the FS certifies that they are true and correct; and, that they were either supervised or prepared by qualified hydrologists utilizing standard hydrology methods of practice. As the hydrology studies here were not, in fact, either supervised or prepared by licensed hydrologists, FS's certification is false. As FS's certification is false, the EISs and EA and FONSIs cannot therefore be incorporated by reference into this Proposed Rules. Incorporation of a facially illegal hydrology study is unreasonable. An unreasonable EIS cannot be incorporated by reference. As the EISs and EAs and FONSIs, incorporated by reference, consists of facially illegal hydrology studies, they are therefore unreasonable. Without the hydrology study, there is nothing to support the incorporated EISs and EAs and FONSIs. Hence, the incorporated EISs and EAs and FONSIs cannot therefore be incorporated by reference into this Proposed Rules. A final environmental impact statement, (EIS), cannot be incorporated by reference or tiered off of if a court has declared it inadequate. The SNEP Report and EIS were declared inadequate by the United States Appellate Court for the District of Columbia. (California Forestry Ass'n v. U.S. FS (CADC 1996) 102 F.3d 609, 322 U.S.App.DC 211) As the SNEP EIS has been declared inadequate, it cannot therefore be incorporated by reference. This is delineated more fully herein. Must be Updated to include Impacts to Fixed Works This is a Public Comment. On April 4, 1994, at a California Department of Fish and Game hearing on their proposed Suction Dredge Regulations, fish biologist Yoshiyama stated: "Dams are responsible for ninety five percent, (95%), of the negative impact to threatened and endangered specie of fish." Yoshiyama's statement is not unique in the scientific community. Moyle has often attributed a sixty-five percent, (65%), destruction of historical habitat of riparian dependent threatened and endangered species to dams. According to the Environmental Defense Fund there are more than 5000 dams within or, which impact California. A final EIS, incorporated within (5) years, must still be updated. (24 CFR  58.53(b)) Updates must; (1) reflect any significant revisions made to the assumptions under which the original EIS was prepared; and, (2) reflect new environmental issues and data or legislation and implementing regulations which may have significant environmental impact on the project area covered by the prior EIS. (24 CFR  58.53(b)(1) through (2)) A final EIS, incorporated within (5) years, must include; (1) References to the prior EIS and its evaluation of the environmental factors affecting the proposed subsequent action subject to NEPA; (2) An evaluation of any environmental factors which may not have been previously assessed, or which may have significantly changed; (3) An analysis showing that the proposed project is consistent with the location, use, and density assumptions for the site and with the timing and capacity of the circulation, utility, and other supporting infrastructure assumptions in the prior EIS; and,(4) Documentation showing that where the previous EIS called for mitigating measures or other corrective action, these are completed to the extent reasonable given the current state of development. (24 CFR  58.53(a)(1) through (4)) A final environmental impact statement, (EIS), cannot be incorporated by reference or tiered off of if a court has declared it inadequate. (24 CFR  58.53(c)) FS admitted that they neither conducted any "studies or activities in connection with any fixed works" nor, incorporated any studies or activities which did. (Simmons letter of April 18, 2000) Without studying the negative impacts of fixed works and particularly the negative impacts of the more than 5000 dams in California, FS cannot know the extent of ninety-five percent (95%) of the negative impact to the subject planning area. (Yoshiyama, April 4, 1994) FS must, in order to incorporate the referenced documents, evaluate any environmental factors which may not have been previously assessed. (24 CFR  58.53(a)(2)) Here, FS must evaluate the impact to the environment of the more than 5000 dams in California; certainly, all those in or near the planning area. Without this evaluation, the incorporated documents cannot be incorporated by reference into this Proposed Rules. And, without the incorporated documents, FS has nothing to support its findings and conclusions. And, as such, the Proposed Rules are wholly inadequate as an informative document and, as such, they cannot therefore be processed. This is delineated more fully herein. Civil Engineering is not Confined to Fixed Works This is a Public Comment. In the past, FS has presented an erroneous interpretation of Section 6731 of the California Business and Professions Code. (Ca. Bus. & Prof. C.  6731) In particular, they asserted that; (1) civil engineering is confined to only that which is connected to fixed works; (2) FS did not perform any studies or any activities in connection with any fixed works; and, (3) FS, therefore, did not and is not performing civil engineering. In support of this erroneous interpretation, FS cited only the first portion of section 6731 of the California Business and Professions Code. (Ca. Bus. & Prof. C.  6731) The entire code is provided for review. " 6731. Civil engineering defined Civil engineering embraces the following studies or activities in connection with fixed works for irrigation, drainage, waterpower, water supply, flood control, inland waterways, harbors, municipal improvements, railroads, highways, tunnels, airports and airways, purification of water, sewerage, refuse disposal, foundations, grading, framed and homogeneous structures, buildings, or bridges: (a) The economics of, the use and design of, materials of construction and the determination of their physical qualities. (b) The supervision of the construction of engineering structures. (c) The investigation of the laws, phenomena and forces of nature. (d) Appraisals or valuations. (e) The preparation or submission of designs, plans and specifications and engineering reports. (f) Coordination of the work of professional, technical, or special consultants. (g) Creation, preparation, or modification of electronic or computerized data in the performance of the activities described in subdivisions (a) through (f). Civil engineering also includes city and regional planning insofar as any of the above features are concerned therein. Civil engineers registered prior to January 1, 1982, shall be authorized to practice all land surveying as defined in Chapter 15 (commencing with Section 8700) of Division 3." (Ca. Bus. & Prof. C.  6731) FS should notice that, "Civil engineering also includes city and regional planning insofar as any of the above features are concerned therein." (Ca. Bus. & Prof. C.  6731) and that, the "above features" pertinent to this comment are; "(c) The investigation of the laws, phenomena and forces of nature. (d) Appraisals or valuations. (e) The preparation or submission of designs, plans and specifications and engineering reports. (f) Coordination of the work of professional, technical, or special consultants. (g) Creation, preparation, or modification of electronic or computerized data in the performance of the activities described in subdivisions (a) through (f)." (Ca. Bus. & Prof. C.  6731, 6731(c) through (f)). As can be readily observed, civil engineering embraces much more than what is in connection to fixed works. Certainly, it embraces the studies and activities FS performed and, of which we are complaining about herein. This is delineated more fully herein. Federal Exemption is for Registration only This is a Public Comment. FS has contended that, in accordance with Section 6739 of the California Business and Professions Code, FS employees are exempt from the California Professional Engineers Act. (Ca. Bus. & Prof. C.  6739) The entire code is provided for review. " 6739. Exemption of federal officers and employees Officers and employees of the United States of America practicing solely as such officers or employees are exempt from registration under the provisions of this chapter." (Ca. Bus. & Prof. C.  6739) Notice that FS employees are only "exempt from registration" and, nothing more. This exemption does not permit FS employees to use the title, "hydrologist", which they did here. (58 Ops.Atty.Gen. 278, 4-16-75; and, 54 Ops.Atty.Gen. 210, 10-28-71) It does not exempt FS employees from submitting evidence of their qualifications to practice, which they have not here. (Ca. Bus. & Prof. Code  6730) It does not permit FS employees to practice hydrology unless they are "correspondingly qualified" to do so, which they are not here. (Ca. Bus. & Prof. Code  6787(f)). It does not permit FS employees to assume responsibility for a study they did not directly supervise or perform, which they did here. (Ca. Bus. & Prof. Code  6703 and 6735; 16 CCR  404.1) And, finally, it does not permit FS employees to practice civil engineering incompetently, which they did here. (Ca. Civ. Code  1714) FS incompetence is exhibited by their failure to utilize the standard civil engineering methods of analysis and calculations for the work (all of it) of which they purportedly performed. Nothing was done correctly. Hence, no specific examples need be given. This is delineated more fully herein. Failed to Perform Hydro-Geology This is a Public Comment. Many of our Comments, herein, focused on the failure of FS to utilize the services of licensed hydrologists or to utilize the engineering methods of analysis commonly employed in the field of hydrology in the preparation of the Proposed Rules. The same holds true for the field of hydro-geology. Here, FS failed to utilize the services of licensed hydro-geologists or to utilize the engineering methods of analysis commonly employed in the field of hydro-geology in the preparation of the Proposed Rules. This is not a small defect. Hydro-geology is the study of underground water storage basins and the movement of water underground. This discipline is therefore essential to the success of the Proposed Rules. Without proper hydro-geological analyses the Proposed Rules cannot succeed. For this reason, the failure to utilize licensed hydro-geologists or to utilize acceptable methods of hydro-geology, the Proposed Rules are wholly inadequate and, as such, they cannot therefore be useful as an informative document. This is delineated more fully herein. Failed to use the Best Science This is a Public Comment. Throughout the public review process, FS consistently represented that they would and did utilize the "best science" in the preparation of their Proposed Rules. Clearly, without utilizing the services of qualified and licensed hydrologists and qualified and licensed hydro-geologists, FS planned to fail to utilize the best scientific methods available. To make matters worse, the incompetent staff who prepared the hydrology and hydro-geology reports for the Proposed Rules failed to utilize any of the standard methods of analysis commonly used in the fields of hydrology and hydro-geology. Without utilizing the best science available the Proposed Rules cannot succeed. For this reason, the failure to utilize the best science, the Proposed Rules are wholly inadequate and, as such, they cannot therefore be useful as an informative document. This is delineated more fully herein. Violates the Outdoor Recreation Act of 1963 This is a Public Comment. The Proposed Rules will terminate a number of previously dedicated outdoor recreation facilities; areas for recreational mineral collecting, and access roads to said areas. On May 28, 1963 the United States Outdoor Recreation Programs Act of 1963 was signed into law. (16 USC  460 et seq.; May 28, 1963, P.L. 88-29, 77 Stat. 49). Congress declared; that, the people of the United States, of present and future generations, be assured adequate outdoor recreation resources, ( 460 l); that, the Secretary prepare a continuing inventory of outdoor recreation resources and a plan thereof; that, said plan was to be transmitted to the President within five years; and, that revisions to the plan were to be similarly transmitted at succeeding five-year intervals. ( 460 l-1.;  460 l-1.(a);  460 l-1.(b); and, 460 l-1.(c)) The purpose of the United States Outdoor Recreation Programs Act of 1963 is to provide a sufficient quantity of quality outdoor recreation facilities to the citizens of the United States. "The purposes of this part are to assist in preserving, developing, and assuring accessibility to all citizens of the United States of America of present and future generations and visitors... such quality and quantity of outdoor recreation resources as may be available and are necessary and desirable for individual active participation in such recreation and to strengthen the health and vitality of the citizens of the United States..." (16 USC  460 l-4) The President, by Executive Order No. 11200, (Feb. 26, 1965, 30 F.R. 2645), emphasized the need for outdoor recreation areas. " WHEREAS it is desirable that all American people of present and future generations be assured adequate outdoor recreation resources... and WHEREAS these resources are to a considerable extent located on lands administered by the Federal Government through ... FS..." The outdoor recreation plan is to contain an evaluation of the demand for and the supply of outdoor recreation resources and facilities in each state. (16 USC  460 l-8.(d) and 460 l-8.(d)(2)) "... The Secretary shall develop... criteria for public participation, which criteria shall constitute the basis for the certification by the Governor. The plan shall contain-- ... (2) an evaluation of the demand for and supply of outdoor recreation resources and facilities in the State;..." (16 USC  460 l-8.(d)) This is especially true for urban areas, such as the areas for which this Proposed Rules apply. "... the Secretary is authorized and directed to submit to the Committees... a comprehensive review and report on the needs, problems, and opportunities associated with urban recreation in highly populated regions, including the resources potentially available for meeting such needs. The report shall include site specific analyses and alternatives, in a selection of geographic environments representative of the Nation as a whole, including, but not limited to, information on needs, local capabilities for action, major site opportunities, trends, and a full range of options and alternatives as to possible solutions and courses of action designed to preserve remaining open space, ameliorate recreational deficiency, and enhance recreational opportunity for urban populations... The Secretary shall consult with, and request the views of, the affected cities, counties, and States on the alternatives and courses of action identified." (16 USC  460 l-10d.) In December of 1969 the "First Nationwide Outdoor Recreation Plan: The Assessment" was submitted to the President. It dedicated all existing recreation facilities for outdoor recreation purposes. All of the outdoor recreation facilities, (trails, lots, etc.), subject to this Proposed Rules, were in existence prior to 1969. Hence, they were dedicated. In December of 1974, the "Second Nationwide Outdoor Recreation Plan: The Assessment" was sent to the President. It re-dedicated existing outdoor recreation facilities. All of the outdoor recreation facilities, (trails, lots, etc.), subject to this Proposed Rules, were again rededicated as outdoor recreation facilities. In December of 1979, the "Third Nationwide Outdoor Recreation Plan: The Assessment" was sent to the President. It again re-dedicated existing outdoor recreation facilities. All of the outdoor recreation facilities, (trails, lots, etc.), subject to this Proposed Rules, were again rededicated as outdoor recreation facilities. On January 27, 1987, the President's Commission on Americans Outdoors submitted their December 1986 "Report and Recommendations to the President of the United States". The Commission recognized that recreation, "as now mandated in most multiple-use law", must receive attention commensurate with other uses and values, (p. 122,  12), and that "recreation and wildlife are specifically accorded equal status", (p. 125,  12). FS has not even mentioned what impact the Proposed Rules would have upon the existing, previously dedicated, outdoor recreation facilities and areas. Hence, the Proposed Rules will close almost all said previously dedicated outdoor recreation facilities, as well as the access roads to them. As the Proposed Rules will devastate the outdoor recreation system, and no alternative outdoor recreation system is being proposed, they cannot therefore be processed. Were FS to propose an alternative outdoor recreation system, it would have to comply with the procedures cited in this section for doing so, which they have not done. This is delineated more fully herein. This is a RARE III proposal, which must Comply with Law This is a Public Comment. For these Proposed Rules, even were FS to ignore or, circumvent, the Wilderness Acts, which they cannot, they would still have to prepare a new RARE with accompanying EIS, (the "RARE III"). Remember, the prior RARE I and RARE II cannot be incorporated by reference. (See above Argument) Essentially, that is what the district court ordered; i.e. the preparation of RARE III. (State of California v. Bergland (D.C.Cal. 1980) 483 F.Supp. 465 at 502) The Ninth Circuit, in the way of instruction, provided a lengthy brief delineating exactly how any subsequent RARE III would have to be prepared. (State of California v. Block (C.A.9 1982) 690 F.2d 753) As such, we incorporate that case, State of California v. Block, in full, in this letter and by said reference make it fully a part hereto. As a consequence of this reference, the FS is expected, therefore, to comply with the Ninth Circuit's directions in the preparation of these Proposed Rules. As there is no nexus, FS cannot therefore process these Proposed Rules. This is delineated more fully herein. FS proposes Failure to provide Public Review of F&WS Opinion This is a Public Comment. For these Proposed Rules, FS claims that formal consultation with Fish and Wildlife may take place but, before issuing the Final Rule. FS has no intention of providing for public review of the Final Rules before publishing them. Hence, should formal consultation with Fish and Wildlife occur, the public will not be afforded review of the "Opinion of Secretary". (16 USCA  1536(b).) The public must be afforded time and notice to review each revision of a proposed rule. (5 USCA 552) The "Opinion of the Secretary", after formal consultation with Fish and Wildlife, would constitute such a revision because that opinion would constitute a significant change and/or significant new information. Since, the FS proposes formal consultation after public review closes and, does not intend to seek formal consultation with Fish and Wildlife, they propose to fail to provide the required public review of the "Opinion of the Secretary". This is delineated more fully herein. FS's Concerns are Inappropriate and Evidence a Foregone Conclusion This is both a Public Comment and an Information Collection Requirements Comment. FS's concerns, identified just above, have no nexus, to the stated objectives. Thus, they are inappropriate. Moreover, they evidence that FS has already made its mind up; that, they have already concluded that there are no other alternative set of regulations, which would allow for commercial mining activities to occur on FS managed lands, and that, commercial mining should be precluded, altogether. As will be explained in more detail herein below, it is unlawful to process rules as foregone conclusions. Because FS has already made up its mind, here, and without considering any other reasonable set of alternative regulations, its Proposed Rules cannot therefore be promulgated or, finalized. This is delineated more fully herein. Proposed Rules are not the same as the 3809s This is a Public Comment. FS claims that these Proposed Rules are the same as BLM's final set of 3809 regulations, hereinafter (the "3809s" or "43 CFR subpart 3809"). (73 FR 15694 at 15695.) The Proposed Rules, however, are substantially different from the 3809s; and, in many significant ways. The 3809s provide for bond pooling by a state, a county, a mining district, a corporation, and/or an organization; whereas, these Proposed Rules do not. A mining district is a government agency. The 3809s allow the claimants to perform restoration activities, themselves; whereas, these Proposed Rules do not. The 3809s allow for the use of mechanized and heavy equipment for restoration, without an approved plan of operations; whereas, these Proposed Rules do not. The 3809s allow each State to participate in the administration and modification thereof; whereas, these Proposed Rules do not. The 3809s allow for program restoration by a state, a county, a mining district, a corporation, and/or an organization; whereas, these Proposed Rules do not. The 3809s allow for a program operating plan by a state, a county, a mining district, a corporation, and/or an organization; whereas, these Proposed Rules do not. The 3809s provide for government bonding, and other alternative means to bond, other than private bonding; whereas, these Proposed Rules do not. These are but a few of the significant differences between the two; the 3809s and these Proposed Rules. This is delineated more fully herein. For their 3809s, BLM admitted to most of the Violations stated in these Comments This is both a Public Comment and an Information Collection Requirements Comment. Many of these same Comments, made herein, were actually litigated against BLM when they published the 3809s. The National Mining Association was the plaintiff in one such action. BLM settled with them. Dee Stapp, the then President of Public Lands for the People, Inc., was another plaintiff in another such action. For the most part, Dee Stapp copied the National Mining Association's Complaint. (Exhibit 1: Dee Stapp's Complaint; is attached hereto, herein below, and is incorporated herein, by this reference, and made fully a part hereto by said reference, and also made both a Public Comment and an Information Collection Requirements Comment, by said reference.) BLM settled with her too. Thus, in so settling, BLM admitted to many of the violations stated herein these Public Comments and Information Collection Requirements Comments. By alleging that they are paralleling these Proposed Rules with the 3809s, FS has admitted that they intend to commit the violations stated in these Public Comments and stated in these Information Collection Requirements Comments. Said admissions amount to the intent necessary for anyone opposing these Proposed Rules and the Information Collection Requirements to prevail in any would be tort claims action, or takings action, as a result of them, should they become final. This is delineated more fully herein. FS presumes that all Small Miners are Frauds; a Presumption which is against Law This is both a Public Comment and an Information Collection Requirements Comment. Inherent to FS's conclusion that, a mere handful of miners will apply for operating plans as a result of these Proposed Rules, is the presumption that all miners are holding un-patented mining claims, as part of a "sham"; that they are frauding the government. Since, in the United States, and in each and every State of the United States, one is innocent until proven guilty, this presumption cannot be upheld. This is delineated more fully herein. FS must presume that all Small Miners will apply for an Operating Plan, within 20 years This is both a Public Comment and an Information Collection Requirements Comment. These Proposed Rules require an operating plan for any level of commercial exploration and any level of extraction activities. Just as no farmer could, or would, relegate themselves to the use of only hand tools to farm, no miner could, or would, limit themselves to the use of only hand tools to explore or extract; as is now required under the proposed subsection rule, 228.4(a). Commercial mining exploration, what to speak of extraction mining, is just not possible by hand. Previously, this was not the case. Under the current set of regulations, for which these Proposed Rules are intended to replace, a miner can operate heavy equipment and mechanized equipment, and occupy, year round, to both explore and extract, without having to submit either a notice of intent, bonded notice, or an application for an operating plan. However, under these Proposed Rules, one would have to have an approved operating plan in order to explore or extract; to use heavy equipment, to occupy, year round, or to use mechanized equipment. FS must presume that every mining claimant holds an un-patented, or patented, mining claim with the intent of exploring it; performing exploration activities. FS must also presume that every un-patented, and patented, mining claim will be explored. Because of the "Excess Reserve Rule", also the "Too Much Rule", which FS uses, FS must also presume that, for every un-patented, and patented, mining claim, the claimants will explore it sometime within the next 20 years. (See Baker v. US (CA9 1980) 613 F.2d 224, cert denied Andrus v. Baker (1980) 449 US 932; US v. Harlan H. Foresyth et al. 100 IBLA 185 (1987); and, US v. McElwaine 26 IBLA 20 (1976).) The number of active un-patented mining claims, except for those in Alaska, can be provided by USDI-BLM. (http://www.blm.gov/lr2000/.) To acquire the number in Alaska, one must inquire from the Alaska State Office of the USDI-BLM. The number of patented mining claims can be obtained from the General Land Office (GLO), Federal Land Patent Records, of the USDI-BLM. (http://www.glorecords.blm.gov/.) This is delineated more fully herein. FS cannot rely upon Prior Applications for Operating Plans/Notices of Intent This is both a Public Comment and an Information Collection Requirements Comment. FS's basis for its determination of the number of operating plans and notices of intent, to be expected under the Proposed Rules, if enacted, is the prior applications for operating plans and notices of intent. Again, under the current set of regulations, for which these Proposed Rules are intended to replace, a miner can operate heavy equipment and mechanized equipment, and occupy, year round, to both explore and extract, without having to submit either a notice of intent, bonded notice, or an application for an operating plan. Thus, miners did not need to, nor did they apply for, operating plans, before. For the same reasons, they did not need to, nor did they, submit notices of intent, either. In stark contrast, under these Proposed Rules, one would have to have an approved operating plan in order to explore or extract; to use heavy equipment, to occupy, year round, or to use mechanized equipment. Thus, it is not possible, plausible, to compare or to expect the same number of applications for operating plans or notices of intent, in the past, to what will be expected in the future, under the Proposed Rules. This is delineated more fully herein. It also applies to all other Information Collection Requirements Comments made herein. Expected Operating Plans, per Year, is equal to the Number of Claims divided by 20 This is both a Public Comment and an Information Collection Requirements Comment. With the above presumptions in mind, that FS must make, it is relatively easy to calculate how many operating plans FS would have to process, each year, under the Proposed Rules. Just divide the number of un-patented, and patented, mining claims by 20. The number of active un-patented mining claims, except for those in Alaska, can be provided by USDI-BLM. (http://www.blm.gov/lr2000/.) To acquire the number in Alaska, one must inquire from the Alaska State Office of the USDI-BLM. The number of patented mining claims can be obtained from the General Land Office (GLO), Federal Land Patent Records, of the USDI-BLM. (http://www.glorecords.blm.gov/.) Since FS failed to consider the true number of operating plans to be processed, as a result of these Proposed Rules, they failed to comply with the information requirements of the Paperwork Reduction Act, as is more fully explained herein below. This is delineated more fully herein. It also applies to all other Information Collection Requirements Comments made herein. Presumption of any Less than (all Claims divided by 20) is a Presumption of Takings This is both a Public Comment and an Information Collection Requirements Comment. The only reasons that a miner would not apply for an operating plan, under the Proposed Rules, to explore their claim, is because they; (1) anticipate denial of their application; (2) know they cannot afford to process an application; and/or (3) know they cannot acquire a bond. Thus, for FS to presume anything less than (all claims divided by 20) as the expected number of operating plans, per year, to process, is a presumption of denial, or effective preclusion, of that amount. Either is a presumption of takings. FS has not declared, divulged, that they intend to take any mining claims. Thus, they have no justification, what-so-ever, for reducing the amount of expected operating plans for which to process, yearly, below (all claims divided by 20). This is delineated more fully herein. It also applies to all other Information Collection Requirements Comments made herein. Initial Violations of the Paperwork Reduction Act (the PRA) This is both a Public Comment and an Information Collection Requirements Comment. If the Proposed Rules, as alleged, are a mere implementation of court decisions then, they are still "rules", as defined by the Administrative Procedures Act. (5 USCA  551(4).) The Proposed Rules, as "rules", are tantamount to a new and different request for the collection of information from each and every mine operator; either a notice of intent and/or a bonded notice and/or a plan of operations. As was just established, just above, FS has failed to, properly, conduct the review established under section 3506(c)(1) for the Proposed Rules. FS cannot conduct the collection of information, (notice of intent and/or bonded notice and/or a plan of operations), unless it has properly conducted the review established under section 3506(c)(1). (44 USCA  3507(a)(1)(A) and 3506(c)(1).) As FS cannot conduct the collection of information, (notice of intent and/or bonded notice and/or a plan of operations), it cannot cite, nor penalize, anyone for failure to provide that information. (44 USCA  3512; 5 CFR  1320.5(c).) As such, the Proposed Rules, if enacted, would therefore be unenforceable. FS has not submitted to the Director a plausible certification required under section 3506(c)(3) for the Proposed Rules. An incredible, an implausible, certification, or one made arbitrarily and capriciously, is no certification at all. FS cannot conduct the collection of information, (notice of intent and/or bonded notice and/or a plan of operations), unless it has submitted to the Director a plausible certification required under section 3506(c)(3). (44 USCA  3507(a)(1)(C) and 3506(c)(3).) As FS cannot conduct the collection of information, (notice of intent and/or bonded notice and/or a plan of operations), it cannot cite, nor penalize, anyone for failure to provide that information. (44 USCA  3512; 5 CFR  1320.5(c)) As such, the Proposed Rules, if enacted, would therefore be unenforceable. FS has not published (in the Federal Register) the fact that it submitted to the Director the plausible certification required under section 3506(c)(3) for the Proposed Rule. FS cannot conduct the collection of information, (notice of intent and/or bonded notice and/or a plan of operations), unless it has submitted to the Director the plausible certification required under section 3506(c)(3). (44 USCA  3507(a)(1)(D) and 3506(c)(3).) As FS cannot conduct the collection of information, (notice of intent and/or bonded notice and/or a plan of operations), it cannot cite, nor penalize, anyone for failure to provide that information. (44 USCA  3512; 5 CFR  1320.5(c).) As such, the Proposed Rules, if enacted, would therefore be unenforceable. This is delineated more fully herein. It also applies to all other Information Collection Requirements Comments made herein. Definition of Occupancy does NOT Cover the Brunt of Occupancy This is both a Public Comment and an Information Collection Requirements Comment. Though, FS defines occupancy, (proposed 228.3(e).), that definition does not entail much of occupancy. Any long term or persistent use is occupancy; cumulative or otherwise. This is because the purpose of curtailing occupancy is to prevent the permanent displacement of wildlife and/or a significantly change to their routine. Whether the use is by structure is of no consequence. Whatever causes this negative impact is occupancy. By its definition, FS appears to limit that usage to the activities of a caretaker, guard or watchman; or, the storage of equipment, etc. This is an insufficient, an incomplete, definition of what usage constitutes occupancy. A permanent structure, or storage, occupies an area 24-7. Thus, it is relatively easy to discern that a permanent structure's occupancy is long term and persistent. Usage, however, is not so easily discernable. For example, a single use by a single rafter cannot be said to be long term or persistent occupancy. It might frighten away wildlife for a moment but it won't scare them into leaving the area, altogether. However, (taken cumulatively), a number of rafters, rafting every day, would. Thus, rafting is a long term and persistent occupancy because it has that effect, when taken cumulatively, which is the case. FS's definition of occupancy fails to consider, or regulate, the cumulative impact of usage. This is the brunt of occupancy, by far; cumulative usage. By failing to regulate it, in these Proposed Rules, and by defining it properly and completely, FS cannot achieve the stated objection; to curtail significant occupancy and the significant disturbance and impact to the environment thereof. This is delineated more fully herein. Definition of Mechanized Earth-moving Equipment is Vague and Standardless This is both a Public Comment and an Information Collection Requirements Comment. FS does not define "mechanized earthmoving equipment"; yet, they specify the use thereof, triggers whether a notice of intent, or bonded notice, is required; proposed 228.4. Failure to file a notice of intent, or bonded notice, when one is required, is a criminal offense, under the Proposed Rules. To insure that one is not cited for failure to file a notice of intent, or bonded notice, without a definition for the term "mechanized earth moving equipment", one must presume that the intent to use any type of mechanized earth moving equipment necessitates the filing of a notice of intent or bonded notice. In other words, only the use of hand tools is authorized. The use of any other tools, other than hand tools, necessitates the filing of a notice of intent or bonded notice. This is the effect of the failure to define the term "mechanized earth moving equipment". This effect is inconsistent with BLM's determination of the type of mechanized earth moving equipment which does not trigger a notice of intent. (See BLM's Instruction Memorandum No. 2002-047 (December 12, 2001).) Please take judicial notice that BLM has published other such Instruction Memorandums which, effectively, define the term "mechanized earthmoving equipment"; and, before they published the Final 3809s. BLM continues to define the term "mechanized earthmoving equipment" by the use of such Instruction Memorandums. Though, this method is an unlawful procedure for promulgating such definitions, it is, by far, better than what FS proposes here, in these Proposed Rules; that is, not to provide any definition at all. Failure to define the term "mechanized earth moving equipment" renders these Proposed Rules vague and standardless. Moreover, as will be delineated more fully herein below, it renders them preclusive. This is delineated more fully herein. Effectively, FS presumes Mining is a, Per Se, Significant Impact necessitating an EIS This is both a Public Comment and an Information Collection Requirements Comment. FS proclaims that occupancy or the use of heavy or mechanized equipment per se, (presumptively), causes a significant disturbance to surface resources. Additionally, FS proclaims that a significant disturbance to surface resources, in the "designated habitat for a threatened or an endangered species", is per se, (presumptively), a significant impact to the environment. "It is extremely unlikely that the maintenance, or even the construction, of such structures standing alone would require preparation of either an environmental impact statement or an environmental assessment unless the National Forest System lands at issue possess some noteworthy status such as being part of a proclaimed wilderness or the designated habitat for a threatened or an endangered species." (73 FR 15694 at 15696.) Almost without exception, every portion of every minable area of every National Forest is designated habitat for a threatened or an endangered species. (numerous Fed Reg Notices of proposed and designated habitat for threatened or endangered species, too numerous to list here.) As such, FS is proclaiming that occupancy, or for that matter any commercial mining activities, whatsoever, necessitates, without any or further investigation, the following: ù application for approval of a plan of operations ù the preparation of an environmental impact statement ("EIS") for that application ù approval of that application, before any commercial mining activities may occur FS cannot and will not pay for the cost of preparing an EIS for each miner. Thus, almost without exception, any miner who applies for an operating plan will also have to prepare, and pay for, an EIS. This is delineated more fully herein. Additional Violations of the Paperwork Reduction Act (the PRA) This is both a Public Comment and an Information Collection Requirements Comment. If the Proposed Rules, as alleged, are a mere implementation of court decisions then, they are still "rules", as defined by the Administrative Procedures Act. (5 USCA  551(4).) The Proposed Rules, as "rules", are tantamount to a new and different request for the collection of information from each and every mine operator; an EIS. As was just established, just above, FS has failed to, properly, conduct the review established under section 3506(c)(1) for the Proposed Rules; they failed to disclose that they would have to process EISs, for each operating plan and/or notice of intent, and the number of those EISs. FS cannot conduct the collection of information, (notice of intent and/or plan of operations), unless it has properly conducted the review established under section 3506(c)(1). (44 USCA  3507(a)(1)(A) and 3506(c)(1)) As FS cannot conduct the collection of information, (notice of intent and/or plan of operations), it cannot cite, nor penalize, anyone for failure to provide that information. (44 USCA  3512; 5 CFR  1320.5(c).) As such, the Proposed Rules, if enacted, would therefore be unenforceable. FS has not submitted to the Director a plausible certification required under section 3506(c)(3) for the Proposed Rules. An incredible, an implausible, certification, or one made arbitrarily and capriciously, is no certification at all. FS cannot conduct the collection of information, (EISs), unless it has submitted to the Director a plausible certification required under section 3506(c)(3). (44 USCA  3507(a)(1)(C) and 3506(c)(3).) As FS cannot conduct the collection of information, (EISs), it cannot cite, nor penalize, anyone for failure to provide that information. (44 USCA  3512; 5 CFR  1320.5(c)) As such, the Proposed Rules, if enacted, would therefore be unenforceable. FS has not published (in the Federal Register) the fact that it submitted to the Director the plausible certification required under section 3506(c)(3) for the Proposed Rule. FS cannot conduct the collection of information, (EISs), unless it has submitted to the Director the plausible certification required under section 3506(c)(3). (44 USCA  3507(a)(1)(D) and 3506(c)(3).) As FS cannot conduct the collection of information, (EISs), it cannot cite, nor penalize, anyone for failure to provide that information. (44 USCA  3512; 5 CFR  1320.5(c).) As such, the Proposed Rules, if enacted, would therefore be unenforceable. This is delineated more fully herein. It also applies to all other Information Collection Requirements Comments made herein. Proposed management of Mining, here, is Inconsistent with USDA management Policy This is both a Public Comment and an Information Collection Requirements Comment. FS proposes to regulate mining on FS managed lands by requiring an EIS and an operating plan for any level of commercial mining activities. FS is a subordinate division of the United States Department of Agriculture ("USDA") and, as such, takes its jurisdiction from them. Its regulations cannot be inconsistent or in conflict with those of its authorizing Department. The USDA manages farming. The USDA does not require every farmer to prepare an EIS and an operating plan for any and all commercial farming activities. The USDA does not consider farming, done with hand tools, to be commercially viable. The USDA manages (leases) private hunting and fishing reservations. The USDA does not require every lessee of said private hunting and fishing reservations to prepare an EIS and an operating plan for any and all of their activities. The same is true of all other commercial activities for which the USDA manages, other than mining. For example, for its Rural Housing Program, the USDA does not require the preparation of an EIS and an operating plan for any and all construction activities. For another example, the USDA-FS does not require the preparation of an EIS and an operating plan for any and all of its construction activities. Clearly, small mining is being singled out, here; and, for preclusion. USDA-FS's Proposed Rules, here, are entirely inconsistent with USDA's and FS's management of any and all other commercial activities which they manage. Thus, FS, here, by its Proposed Rules, is violating our constitutional right to equal protection. This is delineated more fully herein. Definition for Occupancy cannot only apply to Mining, which it does, here This is both a Public Comment and an Information Collection Requirements Comment. FS proposes to regulate occupancy for mining, only. (proposed CFR  228.3(e).) They do not regulate occupancy for any other use, except mining. Species do not recognize one use from another. Clearly, small mining is being singled out, here; and, for preclusion. If occupancy is not regulated for all uses, it cannot be regulated for mining. FS's Proposed Rules, here, are entirely inconsistent with USDA and FS management of occupancy. Thus, FS, here, by its Proposed Rules, is violating our constitutional right to equal protection. This is delineated more fully herein. Proposed Rule Affects a Takings of our Un-Patented Mining Claims and Interests This is both a Public Comment and an Information Collection Requirements Comment. The Proposed Rules, effectively, preclude the use of motorized mining equipment for small scale mining operations, (those activities for which an operating plan is not required under 36 CFR part 228). (See Proposed 36 CFR  261.2. Definition of Motorized equipment and Proposed 36 CFR  228.4(a)(ii).) The Proposed Rules, effectively, preclude small scale mining operations, (those mining activities for which an operating plan is not required under 36 CFR part 228), by defining the words "operating plan" in the Proposed 36 CFR  261.2, and by including the words "operating plan" in the Proposed 36 CFR  261.10(a), 261.10(b) and 261.10(p) and other places. Moreover, these changes, effectively, do not allow for a non-compliance to be rectified before criminal action and sanctions are levied; and thereby, precludes mining without a plan of operations. Moreover, these changes, effectively, restrict (limit) small scale mining (mining activities which do not require a plan of operation under 36 CFR part 228) to two weeks out of the year. It is common knowledge, and case law, that no small miner can obtain a bond, or put up the cash, for their mining activities; and, as such, they cannot obtain an operating plan. If one is no longer able to mine utilizing mechanized equipment, without a plan of operations, and they cannot obtain a plan of operations because they cannot obtain a bond or put up cash, that person will no longer be able to mine, with mechanized equipment, even during a validity examination. No one has passed a validity examination utilizing equipment that is not mechanized. (BLM Records of Validity Examinations for Dredging Operations, to numerous to list here.) Thus, all un-patented mining claims, where mining is limited to non-mechanized equipment, including ours, will be subject to being declared invalid, at any time. If subject to being declared invalid, as a consequence of regulation, they are therefore taken by regulation. If one is subject to being cited, criminally, for a violation of the Proposed Rules, without being allowed to comply to a notice of non-compliance, they will no longer be able to mine, without a plan of operations, and they cannot obtain a plan of operations because they cannot obtain a bond or put up cash, that person will no longer be able to mine, even during a validity examination. No one has passed a validity examination that has been required to obtain an operating plan, during contest. (BLM Records of Validity Examinations for Dredging Operations, too numerous to list here.) Thus, all un-patented mining claims, where mining is limited to holders of operating plans, including ours, will be subject to being declared invalid, at any time. If subject to being declared invalid, as a consequence of regulation, they are therefore taken by regulation. If one is no longer able to mine for more than two weeks, without a plan of operations, and they cannot obtain a plan of operations because they cannot obtain a bond, that person will no longer be able to mine, beyond two weeks, even during a validity examination. No one has passed a validity examination where the entire cost of equipment is deducted from the amount potentially earned in a year, or even two years, when limited to a two week mining period. (BLM Records of Validity Examinations for Dredging Operations, too numerous to list here.) Thus, all un-patented mining claims, where mining is limited to two weeks or less, including ours, will be subject to being declared invalid, at any time. If subject to being declared invalid, as a consequence of regulation, they are therefore taken by regulation. Essentially, the affect of FS's, latest Proposed Rules are to invalidate all un-patented mining claims in the National Forests. Once all un-patented mining claims, in the National Forests, are invalidated, no one will be allowed to mine except where it is permitted to do so. The FS will only allow one to mine in a recreational area designated for that purpose. Not only will they limit these areas to but a few places but they will limit the time for any person to do so, continually, to one week. Thus, small mining by small miners will, effectively, be precluded. This is delineated more fully herein. Violates the Administrative Procedures Act (the APA) This is both a Public Comment and an Information Collection Requirements Comment. FS failures to comply with law, as are delineated herein above and below, constitute agency action. (5 USCA  551(13) and 5 USCA  701(b)(2).) The decision to implement the Proposed Rules is also an agency action. (5 USCA  551(13) and 5 USCA  701(b)(2).) Agency action, findings, and conclusions found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, shall be held unlawful and set aside. (5 USCA  706(2)(A).) Due to FS's failures and violations, as are delineated herein above and below, the Proposed Rules, are unlawfully promulgated and/or are arbitrary, capricious, and otherwise unlawful within the meaning of the APA, 5 USCA  706. This is delineated more fully herein. Violates the Congressional Review Act (the CRA) This is both a Public Comment and an Information Collection Requirements Comment. For these comments the term "major rule" means any rule that the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget finds has resulted in or is likely to result in -- (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. (5 USCA  804(2).) And; the term "rule" has the meaning given such term in section 551, except that such term does not include -- (A) any rule of particular applicability, including a rule that approves or prescribes for the future rates, wages, prices, services, or allowances therefor, corporate or financial structures, reorganizations, mergers, or acquisitions thereof, or accounting practices or disclosures bearing on any of the foregoing; (B) any rule relating to agency management or personnel; or (C) any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties. (5 USCA  804(3).) And; the term "rule", (pursuant to section 551), means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing. (5 USCA  551(4), (emphasis added).) Before the Proposed Rules can take effect, FS was to have, but failed to, submit, to each House of Congress and to the Comptroller General, the specified reports. (5 USCA 801(a)(1)(A and B).) Amongst other requirements, said reports were to include a plausible concise general statement as to whether they (the Proposed Rules) are major rules. (5 USCA 801(a)(1)(A)(ii).) If they (the Proposed Rules) are major rules, they cannot take effect until, at least, 60 days after receipt of said reports. (5 USCA 801(a)(3)(A).) If FS did submit such a concise general statement, it is implausible; and, for all those reasons stated herein above and below. For its failure to submit a plausible concise general statement as to whether they (the Proposed Rules) are major rules, the presumption is against FS; and, as such, the Proposed Rules must therefore be presumed to be major rules. Before said reports are submitted to each House of Congress and to the Comptroller General, they were to be submitted to the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget for a determination as to whether they (the Proposed Rules) are major rules. (5 USCA 802(2).) For its failure to acquire the required OMB determination that the Proposed Rules are major rules, which they are, the presumption is against FS; and, as such, the Proposed Rules must therefore be presumed to be major rules. FS failed to submit the said plausible required reports; (required pursuant to the CRA). FS failed to acquire a determination that the Proposed Rules are major rules from the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, as they should have because they are major rules. As such, FS violated the CRA; and, the Proposed Rules cannot therefore take effect; nor, become operational. This is delineated more fully herein. Proposed Rules are Major Rules This is both a Public Comment and an Information Collection Requirements Comment. As will be shown, the Proposed Rules will cause an annual effect on the economy of $100,000,000 or more. Hence, they are major rules. As will be shown, the Proposed Rules necessitate, will require, a major increase in costs or prices for consumers, individual industries, Federal, State, and local government agencies, and geographic regions. Hence, they are major rules. As will be shown, the Proposed Rules will cause significant adverse effects on competition, employment, investment, productivity, innovation, and on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Hence, they are major rules. This is delineated more fully herein. Violates the Forest & Rangeland Renewable Resources Planning Act This is a Public Comment. 5 USCA  553(d) is inapplicable, here, because it applies to substantive rules which, FS claims the Proposed Rules are not. And, if the Proposed Rules are substantive rules then, FS failed to process them as such. By its own terms, the exceptions, cited by FS, which allow the requirements of 5 USCA  553, of notice and comment, to be avoided, do not apply. Said exceptions only apply where notice and hearing are not required by statute. (5 USCA  553(b).) Here, adequate notice and an opportunity to comment, (when FS is formulating standards, criteria, or guidelines to protect surface resources), are required by statute. (16 USCA  1612(a).) FS's Proposed Rules are standards, criteria, and/or guidelines meant to protect surface resources. As such, the exceptions to the notice and comment requirements of 5 USCA  553, cited by FS, therefore do not apply. And, as the exceptions to the notice and comment requirements of 5 USCA  553, cited by FS, do not apply, FS must, therefore, give adequate notice and respond to public comments before it can implement the Proposed Rules; which, they have, admittedly, not done. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Violates EPA Regulations on Proposed Rule Making This is a Public Comment. The regulations at 40 CFR part 25 apply to the activities of all agencies receiving US Environmental Protection Agency (EPA) financial assistance. (40 CFR  25.2(g).) I searched the EPA web page and found that FS receives EPA financial assistance, (either directly or indirectly), on 188 different projects. Hence, 40 CFR part 25, applies to FS activities. Before publishing the Proposed Rules, as final, FS was required to engage in public consultation but, failed to do so. Public consultation must be preceded by timely distribution of information and must occur sufficiently in advance of decision-making to allow the agency to assimilate public views into agency action. Merely conferring with the public after an agency decision does not meet this requirement.(40 CFR  25.4(d).) Before publishing the Proposed Rules, as final, FS was required to prepare a Responsiveness Summary for the Proposed Rules but, failed to do so. Responsiveness Summaries are also required for rulemaking activities under 40 CFR  25.10. (40 CFR  25.8) Before publishing the Proposed Rules, as final, FS was required to invite and consider written comments from any interested or affected persons and organizations but, failed to do so. (40 CFR  25.10(a).) This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. FS Lacks Jurisdiction to Manage Mining in Waters of the States This is a Public Comment. Even were the Proposed Rules valid, which they are not, 36 CFR part 228 and 36 CFR part 261 cannot be applied to mining by the use of a suction dredge; and, for the following reasons: (1) a suction dredge is neither a backhoe or a bulldozer; (2) a suction dredge does not cut down trees; (3) a suction dredge is not a mechanized earthmoving piece of equipment; (4) a suction dredge is not a heavy piece of equipment such as a bulldozer or a backhoe; (5) suction dredge mining operations do not disturb surface resources because they, instead, are activities performed in the (subsurface) or, upon submerged lands; i.e. underwater; (6) subsurface disturbance is expressly exempted by 36 CFR  228.4; (7) suction dredging has been exempted through agreements (MOUs) between USDA and/or FS and with each of the Western States; and, (8) each of the Western States has occupied the area of regulating suction dredge mining activities (pursuant to the Submerged Lands Act (43 USC  1311 and 1314; Murphy v. Dept. of Natural Resources (S.D. Fla., 1993) 837 F.Supp. 1217), the National Forest Organic Act (16 USCA  481) and the Clean Water Act (33 USCA  1344), and, thereby, has precluded Forest Service from enforcing a duplicate set of regulations for said suction dredge mining activities. This is delineated more fully herein. FS Lost the Opportunity to Challenge the Court's Interpretation of these Proposed Rules This is a Public Comment. FS claims that they are merely implementing court decisions. However, this is not the case. FS presented and argued said implementation before Judge Karlton. (US v. Lex (2003) 300 F.Supp.2d 951, at 961) Judge Karlton's interpretations of 36 CFR part 228, 36 CFR part 250, and 36 CFR part 261, cannot be overruled by FS in their implementation here. (Frederick County Fruit Growers Ass'n Inc. v. Dole (DDC, 1991) 758 F.Supp. 17, 24) FS, by the Proposed Rules, is attempting to attain another and different court interpretation. (US v. Lex (2003) 300 F.Supp.2d 951, at 961) FS appealed the adverse ruling, (Judge Karlton's interpretation), in the Lex case. However, when they realized that the Ninth Circuit Court of Appeals was going to affirm, they withdrew that appeal. Had FS proceeded, on appeal, the appellate court would have reviewed Judge Karlton's interpretation de novo; and, the appellate court would have been obligated to uphold Judge Karlton's interpretations of said regulations unless they found them to be arbitrary, capricious, an abuse of discretion, or not in accordance with law. (Herndon v. Principi (CA Fed., 2002) 311 F.3d 1121, 1124; and, U.S. v. Wisconsin Power and Liglet Company (7th Cir. (Wis.) 1994) 38 F.3d 329) Here, FS, by publishing the Proposed Rules, expects deference of their interpretation. But, such deference could only have been enjoyed prior to court (Judge Karlton's) interpretation. That is no longer the case. FS cannot, now, even request that their interpretation, (the Proposed Rules), be reviewed under the arbitrary, capricious, an abuse of discretion, or not in accordance with law, standard of review. When they failed to proceed, on appeal, FS lost the opportunity to challenge Judge Karlton's interpretation. (Schmitt v. American Family Mutual Insurance Company (SD Ind., 1999) 187 FRD 568, 574; and, Abatti v. C.I.R. (CA9, 1988) 859 F.2d 115, 119) Were it otherwise, there would be no finality. As FS lost the opportunity to challenge Judge Karlton's interpretation, and the Proposed Rules are a de facto challenge to Judge Karlton's interpretation, the Proposed Rules are therefore invalid. This is delineated more fully herein. Proposed Rules are Vague and Standardless for Other Reasons This is a Public Comment. I, EAJ, and EAJ's members, claim that the Proposed Rules are vague. This is easy to notice for the Proposed Rules are conflicting, on many points, and makes references, to themselves, that are hard, if not impossible, to follow. These conflicts will be described more fully herein below. To make matters worse, USDA, and USDA-FS, have extremely conflicting standards for making determinations of significant disturbance. For example: one use, mining, FS has determined that movement of a spoonful of dirt, with even the smallest mechanized piece of equipment, is significant, regardless of whether Best Management Practices are employed; and, for another use, (over the same piece of land), timber harvesting, FS has determined that movement of roughly 25 million cubic yards of dirt, with more than 20 D-9s, simultaneously, is insignificant. (See the Upper Slate Defensible Fuel Profile Zone and Pearson v. Powell challenging it, the Upper Slate DFPZ) Hence, the Proposed Rules are "so vague and standardless that it leaves the public uncertain as to what is prohibited." (US v. Lex (E.D.Calif., 2003) 300 F.Supp.2d 951, 963; citing, City of Chicago v. Morales, 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (quoting Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).) Moreover, the enforcement of the Proposed Rules would offend due process. In any event, the rule of lenity would require that the courts infer the rationale most favorable to defendant(s), here myself, EAJ, and EAJ's members, in construing the Proposed Rules. (See United States v. Martinez, 946 F.2d 100, 102 (9th Cir.1991).) In consideration of the rationale most favorable to myself, EAJ, and EAJ's members, in construing the Proposed Rules, the courts are expected to look to the Congressional Hearings before the Committee on Interior and Insular Affairs, House of Representatives, on the 1974 proposed Forest Service Mining Regulations (then Part 252, now Part 228 of Title 36 to the CFRs) held in Washington D.C. on March 7th and 8th of 1974. At said Congressional Hearings, held in Washington D.C. on March 7th and 8th of 1974, it so happens that they established the same interpretation that Judge Karlton recently buttressed. "The magistrate judge, however, did not consider whether appellants were exempted from the initial requirement to file a notice of intent. As I now explain, it appears they were." (US v. Lex (2003) 300 F.Supp.2d 951, at 961) And; "Thus, under the regulations, until appellants determined that their operations would involve the use of earthmoving equipment or tree-cutting, they were under no obligation to file a notice of intent. [FN9] Under section 228.4(a), without a notice of intent, a Ranger would not have the opportunity to find that a significant disturbance of surface resources would likely result, such that a plan of operation could be required. [FN10] Accordingly, the appellants would not be in violation of the regulations." (US v. Lex (2003) 300 F.Supp.2d 951, at 962) This is the rationale most favorable to myself, EAJ, and EAJ's members, in construing the Proposed Rules. The rationale most favorable to myself, EAJ, and EAJ's members, in construing the Proposed Rules, would include the interpretation, which Judge Karlton gave, of 36 CFR part 261, as well. It is true that; apart from prohibiting the use of land for residential purposes, the regulations separately prohibit camping for longer than the limits provided by a regional camping order.(See 36 CFR  261.58(a); and, US v. Lex (E.D.Calif., 2003) 300 F.Supp.2d 951, 958) However, 36 CFR  261.10(b) does not prohibit occupancy that is subject to a special use authorization or that is "otherwise authorized." Here, because the activity covered by the Forest Service's mining regulations is excluded from the special use regulations, see 36 CFR  251.50(a), a would be miner cannot obtain a special use authorization for their activity which is subject to the mining regulations. Nonetheless, that person could comply with section 261.10(b) if they were otherwise authorized to occupy the land. (US v. Lex (E.D.Calif., 2003) 300 F.Supp.2d 951, 959-60) The rationale most favorable to myself, EAJ, and EAJ's members, in construing the Proposed Rules, would include the interpretation, which Judge Karlton gave of 36 CFR  228.4, as well. Until the miner determines that the operations would involve the use of earthmoving equipment or tree-cutting, that miner is under no obligation to file a notice of intent. Under section 228.4(a), without a notice of intent, a Ranger would not have the opportunity to find that a significant disturbance of surface resources would likely result, such that a plan of operation could be required. Accordingly, said miner would not be in violation of the regulations. He/she would be otherwise authorized to occupy the land; and, under 36 CFR 228.4. (US v. Lex (E.D.Calif., 2003) 300 F.Supp.2d 951, 962) This is delineated more fully herein. Proposed Rules are Subtantive Rules This is a Public Comment. Please recognize (take judicial notice) that, effectually, the Proposed Rules do not merely implement but, rather, they substantially change 36 CFR Parts 223, 228, 250, 261, 292, and 293. It is a due process violation for FS to fail to specify that the Proposed Rules, effectively, cancels out, voids, the regulations at 36 CFR Part 250 and 36 CFR Part 228. The Proposed Rules eliminate the longstanding exemptions which had previously, (prior to the Proposed Rules), been enjoyed by small scale miners and small scale mining operations. These prior exemptions were, recently, explained by Judge Karlton. "The magistrate judge, however, did not consider whether appellants were exempted from the initial requirement to file a notice of intent. As I now explain, it appears they were. (US v. Lex (2003) 300 F.Supp.2d 951, at 961) And; "Thus, under the regulations, until appellants determined that their operations would involve the use of earthmoving equipment or tree-cutting, they were under no obligation to file a notice of intent. [FN9] Under section 228.4(a), without a notice of intent, a Ranger would not have the opportunity to find that a significant disturbance of surface resources would likely result, such that a plan of operation could be required. [FN10] Accordingly, the appellants would not be in violation of the regulations." (US v. Lex (2003) 300 F.Supp.2d 951, at 962) Judge Karlton was not the first to explain said exemptions. Congress, initially, insured that Part 228 of Title 36 to the CFRs include said exemptions; primarily, because requiring a bond or a plan of operations were determined to be preclusive. Various speakers at the Congressional Hearings before the Committee on Interior and Insular Affairs, House of Representatives, on the 1974 proposed Forest Service Mining Regulations (then Part 252, now Part 228 of Title 36 to the CFRs) held in Washington D.C. on March 7th and 8th of 1974, were the first people to do so. This is delineated more fully herein. 36 CFR, Part 261, cannot be Applied to Mining This is a Public Comment. 36 CFR part 228 has no enforcement provisions. FS recognized this as a fatal flaw; one which has still not been rectified within the 36 CFR part 228. 36 CFR part 261 has enforcement provisions. Rather than revising 36 CFR part 228, to include enforcement provisions, FS, instead, attempts, here, to utilize 36 CFR part 261 for this purpose. (Also see proposed 228.8(c)(2).) The attempt, as will be shown herein below, is a dismal failure. FS was recently admonished by Judge Karlton for applying 36 CFR part 261 to occupancy for mining purposes. "As the parties agree, the camping order was not relevant to a determination of whether or not the appellants were on the land for "residential purposes." Certainly if one had been camping for less than fourteen days, the camping order might be relevant to show that the occupation of the land was permissible camping and not prohibited residency. It does not necessarily follow, however, that the inverse would be true. Indeed, if by camping beyond the time allowed in a regional order, one was also understood to be using the land for residential purposes, the regulations separately proscribing each activity would be duplicative. Such a conclusion, however, would violate the rule of construction that "legislative enactments should not be construed to render their provisions mere surplusage." Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 472, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997). [FN5] Accordingly, it would be a legal error to rely on the regional camping order to determine that the residential purposes element was satisfied. As far as I can tell, however, that is what the magistrate judge did. [FN6] In sum, I must agree with the appellants that the magistrate judge erred in looking to the regional camping order to establish residential purpose. (US v. Lex (2003) 300 F.Supp.2d 951, 959) And; "36 C.F.R.  261.10(b), under which appellants were convicted, does not prohibit occupancy that is subject to a special use authorization or that is "otherwise authorized." Here, because activity covered by the Forest Service's mining regulations is excluded from the special use regulations, see 36 C.F.R.  251.50(a), [FN7] the appellants could not obtain a special use authorization for their activity which was subject to the mining regulations. Nonetheless, they could comply with section 261.10(b) if they were otherwise authorized to occupy the land. FN7. This section of the "Special Uses," subpart of the regulations is entitled "Scope" and reads: All uses of National Forest System lands, improvements, and resources, except those provided for in the regulations governing the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222), are designated "special uses." Before engaging in a special use, persons or entities must submit an application to an authorized officer and must obtain a special use authorization from the authorized officer unless that requirement is waived by paragraph (c) of this section. The magistrate judge concluded that even if appellants had a mining claim, they were not authorized to remain on Forest Service land absent a plan of operations. In the alternative, the magistrate judge found that even if ownership of a mining claim "otherwise authorized" appellants to occupy the land, appellants had not created a mining claim as of the time that they were cited for a violation of  261.10(b). As I explain, both conclusions were erroneous." (US v. Lex (2003) 300 F.Supp.2d 951, 959-960) This is not the first time FS has been admonished for applying 36 CFR part 261 to mining activities. (See US v. Craig) The IBLA has ruled on this issue, as well. (Appeal of Crawford, IBLA 83-851) Mining activities are governed under "part 228" of the 36 CFRs. "All uses of National Forest System lands, improvements, and resources, except those provided for in the regulations governing the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222), are designated special uses.' Before engaging in a special use, persons or entities must submit an application to an authorized officer and must obtain a special use authorization from the authorized officer unless that requirement is waived by paragraph (c) of this section." (36 CFR  251.50(a); US v. Craig, Memorandum Opinion, p. 8) Special uses are governed under parts 251 and 261 of the 36 CFRs. As mining activities are not special uses they are not therefore governed by parts 251 and 261. By its own provision, 36 CFR part 261, is inapplicable to activities authorized by the Mining Law of 1872, as amended, and as implemented through 36 CFR part 228. "Nothing in this part shall preclude activities as authorized by the ... U.S. Mining Laws Act of 1872 as amended." (36 CFR  261.1(b).) Hence, a mining activity, such as occupancy of a mining claim for mining purposes, beyond 30 days, is not subject to regulation under 36 CFR part 261, or orders issued by that part, such as Forest Order No. 3-98, if that activity, as authorized under 36 CFR part 228, would be precluded thereby, which it is. This is delineated more fully herein. There is no Provision to Enforce the Proposed Rules This is a Public Comment. NRC made various statements regarding the inconsistency of enforcement authority and tools; "The agencies have no authority to impose administrative penalties or other sanctions for failures to comply promptly with a notice of noncompliance under current regulations." (NRC Report, p. 77,  1) And; "Forest Service staff members advised the Committee that they commonly resort to regulations at 36 CFR part 261 to enforce the terms of operating plans, rather than seek civil injunctive relief." (NRC Report, p. 77,  2) As was established above, by its own terms, 36 CFR part 261 cannot be used to enforce 36 CFR part 228; and, there are no enforcement regulations under 36 CFR part 228. Hence, the Proposed Rules are therefore still unenforceable. This is delineated more fully herein. Requiring a Bond is Preclusive This is a Public Comment. FS implies, by these Proposed Rules, that they will require a bond for every mining operation, regardless of size, activity, or impact level. The issue of requiring a bond is not new. It was first raised when 36 CFR part 228 was first promulgated. Various speakers at the Congressional Hearings before the Committee on Interior and Insular Affairs, House of Representatives, on the 1974 proposed Forest Service Mining Regulations (then Part 252, now Part 228 of Title 36 to the CFRs) held in Washington D.C. on March 7th and 8th of 1974, warned that bonding would be preclusive. Page 6 paragraph 3 "Specifically I take exception to the $2000.00 minimum bond for mining operations. Noting that the $2000.00 figure is a minimum and that the actual amount of the bond required would depend on the local whims of the local ranger, I would comment that in most instances your major mining operations could afford such a bond, however, the small operator, and this nations industry has always depended on the individual to do much of its prospecting could not. Even the minimum bond would be oppressive. Secondly, I would emphasis that the mining laws of 1872 specifically do not provide for fees for mineral exploration and development and the posting of such a bond in fact would create a fee structure which is not provided for in the law." Congressman Harold T. Johnson Page 9, paragraph 3 Congressman Don Young: "...I have heard Mr. McGuire's (Forest Service Chief) statement, it says that they could easily obtain this bond with very little problem, this $2,000. You really do not believe they can obtain the bond, and I do not either, of $2,000 from an easy source. Now if they (Forest Service) would guarantee to sell bonds to the prospector, I might agree with it. But I have dealt with bonding companies before in the construction business and I know how difficult they are. And I would like to compliment you for bringing that up, because for them to say its easy to obtain a bond for thousands of prospectors, it just is not true." Mr. Barnes (for Congressman Johnson): "I think in many cases it would be impossible." Page 12, last 3 paragraphs Congressman Clausen: "The effect of the regulations can clearly be seen in the requirement for a $2,000 minimum bond. To place this burden on the small miner is unconscionable at best. It amounts to confiscating his rights by imposing a high fee - to me, this is not in keeping with traditional American sense of justice and fair play." "Other provisions in the regulations are similar in scope and purpose and have come about, in my judgment, because the Forest Service has attempted to make serious and substantial changes in our national mining policy by bureaucratic fiat rather than through normal legislative channels." "It is the legislative process where these ideas can be thrashed out in a public forum with public decisions. The regulatory process is totally unsatisfactory in this regard." Page 17, paragraph 2 Mr. Brizee (OGC attorney): "I would agree again that there is no express authority to require a bond. Whether or not we can require the bond depends on whether or not it is reasonable, just as other regulations depend on whether or not they are reasonable." "If there is no authority for the Secretary to make any reasonable regulations concerning entry, then he may not make the one of the bond." "Now some of them may be reasonable. The bond one may not be reasonable." Bottom of page 17 Congressman Melcher: "Do not the Organic Acts specifically require that nothing therein shall abrogate or supersede the 1872 Mining Law?" Mr. Brizee: "Yes sir; it does." Page 39, at end of page Mr. Dempsey (mining industry chairman): "... My experience with bonding with regard to reclamation laws and with regard to contracting is that the small operator will find it impossible to secure a bond from a bonding company unless he is willing to put in a fee as a premium the amount of the bond." "The only way that I could see that is one miner would put up a bond is to put a $2,000. Cash bond with the Forest Service. I think that is a very difficult burden." Page 83 Mr. Houck (National Wildlife Federation): "I think you hit on the very balance of these regulations. They have to be reasonable for the Forest Service. They have to be reasonable for the miners. The ultimate decisions are going to be drawn on what is most reasonable for both." This still remains true today; that, requiring a bond from small miners for small scale mining operations is preclusive; tantamount to a regulatory taking. (Findings and Recommendations in Pearson v. Bradley Powell et. al. (2003) Case No.: CIV S-01-2091-WBS-PAN-PS) [Please take judicial notice of this case and the findings of fact therein. (FRE Rule 201; U.S. v. Stephens (ED Cal., 2001) 185 F.Supp.2d 1116).] It is not the first time that the courts have found that requiring a bond for small scale mining activities to be preclusive. The Eight Circuit Court of Appeals overturned regulations that inhibited mining on grounds that they were prohibitive rather than regulatory. (South Dakota Mining Association v. Lawrence County (CA8, 1998) 155 F.3d 1005.) In Northwest Mining Assoc. v. Babbitt, (1998), wherein challenge for failure to comply to the Regulatory Flexibility Act was made, the court found that requiring the posting of a minimum $5,000 bond and the additional procedural expenses incurred by miners when obtaining the bonds, "appear to have a large impact on the small miner." (Northwest Mining Assoc. v. Babbitt (1998) 5 F.Supp. 2d 9, 11, 12, and 16.) Here, FS is requiring a bond from all small miners and for all small scale mining operations, whereas they never did before. Such a change in bonding requirements, in the manner done, is unlawful. This is precisely the kind of change that was challenged in U.S. v. Shumway, (1999), wherein the court found, in a challenge to a bond increase for the same plan of operations from $2,000 to $18,000, that; "no sureties on the Department's approved list were writing such bonds, and they did not have $18,000 cash they could spare from the milling operations." (U.S. v. Shumway (CA9 (Ariz.) 1999) 199 F.3d 1093, 1096.) This is delineated more fully herein. SBA finds Major Impact to Small Entities This is a Public Comment. In the prior, now defunct, drafts of a similar rule, (43 CFR subpart 3809), where the affect, before litigation which BLM lost, was the same as here in these Proposed Rules, the Small Business Administration (SBA) found that it would have a major impact upon small entities. As the Proposed Rules will cause the same, if not a greater impact, they will cause a major impact to small entities. When BLM first published said similar set of regulations, (43 CFR subpart 3809), now defunct, they, unlike FS here, prepared an Initial Regulatory Flexibility Analysis, ("IRFA"). There BLM found that exploration costs could be increased by as much as 38%. (IRFA at 100) BLM also estimated that the costs of production could increase as much as 6.7% to 8.9% for mining operations. (Id.) In a conclusion that the SBA called "beyond comprehension," BLM somehow concluded, in its IRFA, that such significant cost increases did not constitute a significant economic impact on a substantial number of small entities. (Comment Letter from J. W. Glover and J. A. Smith to BLM, May 10, 1999, at 7) In their May 10, 1999 comments on BLM's IRFA, the SBA explained that a study by its economist David Schnare, Ph.D., found that Internal Revenue Service data "demonstrates that the regulated [hardrock mining] industries operate at the edge of profitability and that the rule would oust small businesses from the industry." (Id. at 6 & Attachment 1) This SBA finding is of particular significance given the BLM's preamble to the proposed rule that "virtually all businesses currently engaged in mining on public lands" are small businesses, (64 Fed. Reg. at 6449), and, in the preamble to the final rule that "the universe of potentially affected [small] entities would essentially be all existing notices and plans of operations and all new notices and plans." (65 Fed. Reg. at 70,105.) The same is true, and applies, to these Proposed Rules; they are a major impact upon small entities and, each and every unpatented and patented mining claim evidences a separate small entity. This is delineated more fully herein. Violates the Regulatory Flexibility Act (the RFA) This is a Public Comment. In 1991, BLM promulgated similar draft regulations, now defunct due to litigation they lost, to the Proposed Rules, and they were challenged for RFA violations. (History of 43 CFR subpart 3809.) On May 13, 1998 the United States District Court, District of Columbia; "ORDERED that the final rule at issue here is remanded to the Defendant for procedures consistent with the attached Memorandum." (Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 16 (DDC, 1998)) The final rule being remanded was originally promulgated on July 11, 1991. "On July 11, 1991, the BLM issued a notice of proposed rulemaking to amend its bonding requirement rules. The proposed rule would require bonds for all mining operations larger than casual level use. 56 Fed.Reg. 31,602 (1991)."(Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 11 (DDC, 1998)) And it became final; "On February 28, 1997, almost six years after the original proposal, the BLM issued the final rule. 62 Fed. Reg. 9093 (1997)." (Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 12 (DDC, 1998)) In that final rule, just as FS is claiming here; "The BLM stated that the rule, as enacted, would not have a significant impact on a substantial number of small entities. Id. at 9099." (Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 12 (DDC, 1998)) NWMA sought summary judgment against the Secretary; "... under the Regulatory Flexibility Act ("RFA"), 5 U.S.C.  601, et seq. (1994) (as amended by Pub.L. 104-121, Title II, 110 Stat. 864-67 (1996)) on the grounds that, when certifying that the final rule would not have a significant economic impact on a substantial number of small entities, the BLM did not use the Small Business Administration's definition of "small miner" and did not follow the appropriate procedure for adopting an alternate definition as required by the RFA." (Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 12 (DDC, 1998).) The District Court instructed" "When an agency issues a rulemaking proposal, the RFA requires the agency to prepare and make available for public comment an initial regulatory flexibility analysis' which will describe the impact of the proposed rule on small entities.' 5 U.S.C.  603(a). When issuing a final rule, the administrative agency must also prepare and issue a final regulatory flexibility analysis. 5 U.S.C.  604(a)." (Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 14 (DDC, 1998).) In reality, though, 5 USCA  603(a) requires more; "Whenever an agency is required by section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States, the agency shall prepare and make available for public comment an initial regulatory flexibility analysis. Such analysis shall describe the impact of the proposed rule on small entities. The initial regulatory flexibility analysis or a summary shall be published in the Federal Register at the time of the publication of general notice of proposed rulemaking for the rule. The agency shall transmit a copy of the initial regulatory flexibility analysis to the Chief Counsel for Advocacy of the Small Business Administration. In the case of an interpretative rule involving the internal revenue laws of the United States, this chapter applies to interpretative rules published in the Federal Register for codification in the Code of Federal Regulations, but only to the extent that such interpretative rules impose on small entities a collection of information requirement." (5 USCA  603(a).) Most importantly, for these comments, the pertinent portion of this rule is; "The initial regulatory flexibility analysis or a summary shall be published in the Federal Register at the time of the publication of general notice of proposed rulemaking for the rule." (5 USC  603(a).) FS, here, failed to publish the required summary of an initial regulatory flexibility analysis. When they do summarize their initial regulatory flexibility analysis, FS cannot utilize their own definition of a small miner. "An examination of the Small Business Act reveals that the SBA may specify detailed definitions or standards by which a business concern may be determined to be a small business concern for the purposes of [the Act] or any other Act.' 15 U.S.C.  632(a)(2)(A). The SBA publishes these small business definitions in 13 C.F.R.  121.201. Division B of section 121.201 provides, in pertinent part, that mining concerns must have 500 or fewer employees to be considered small.' Id. Therefore, the standard for small miner' which the BLM must use when performing an Initial or Final Regulatory Flexibility Analysis or when certifying no significant impact' is a 500 or fewer employee standard. By using a definition other than the SBA's, the BLM violated the procedure of law mandated by the statute." (Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 15 (DDC, 1998).) There are more than 200,000 currently recorded, and active, un-patented mining claims throughout lands managed by FS. There are, at least, one million patented mining claims. Each of these mining claims is owned by, at least, one small miner. Hence, there are, at least, 1,200,000 small miners who will be affected by the Proposed Rules. This fact, that all small miners would be adversely affected by the Proposed Rules was confirmed by the District Court. "Moreover, the new rule's requirements concerning the amount of regulation on the smaller notice level mining operations, the dollar amounts the BLM can require for all bonds, and the additional procedural expenses incurred by miners when obtaining the bonds, appear to have a large impact on the small miner. Effects on small businesses and industry-wide changes in regulatory expenses, however, are precisely what the procedural safeguards of the RFA and the APA are set in place to address."(Northwest Mining Association v. Babbitt, 5 F.Supp.2d 9, 15 (DDC, 1998).) FS proposes to avoid its reporting requirements under 5 USCA  604(a), as well. "When an agency promulgates a final rule under section 553 of this title, after being required by that section or any other law to publish a general notice of proposed rulemaking, or promulgates a final interpretative rule involving the internal revenue laws of the United States as described in section 603(a), the agency shall prepare a final regulatory flexibility analysis. Each final regulatory flexibility analysis shall contain--" (5 USC  604(a)) And; "The agency shall make copies of the final regulatory flexibility analysis available to members of the public and shall publish in the Federal Register such analysis or a summary thereof." (5 USC  604(b).) In other words, FS is required to publish, at least, the Summary of their Final Regulatory Flexibility Analysis when they publish their Final Rule. FS, instead, has indicated that they have no intention of publishing either a Summary of their Final Regulatory Flexibility Analysis or, a Final Regulatory Flexibility Analysis; and, even were FS to publish either of these documents, they have indicated their intention to do it long after the Final Rule has been published. Neither proposal would be in compliance with the Regulatory Flexibility Act. Hence, FS proposes to violate the Regulatory Flexibility Act. The RFA, (5 U.S.C.  601-611), requires administrative agencies to consider the effect of their actions on small entities, including small businesses, small non-profit enterprises, and small governments. The purpose of the RFA is to enhance agency sensitivity to the economic impact of rulemaking on small entities and to ensure that alternative proposals receive serious consideration by agencies. I, EAJ, and EAJ's members, own and operate small businesses, as defined in the RFA, 5 U.S.C.  601(3). BLM's conclusion that virtually all members of the hardrock mining industry are small businesses confirms this fact. (See 65 Fed. Reg. at 70,105) The RFA was amended by the Small Business Regulatory Enforcement Fairness Act ("SBREFA") in 1996. SBREFA makes judicial review of compliance with the RFA available, 5 U.S.C.  611, largely because of complaints that "agencies have given lip service at best to the RFA." (See 142 Cong. Rec. S3242, S3245 (daily ed. Mar. 29, 1996).) The RFA provides that, whenever an agency expects to propose or to promulgate any rule which is likely to have a significant economic impact on a substantial number of small entities, it shall publish a Regulatory Flexibility Agenda. (5 U.S.C.  602(a).) The RFA also provides that, whenever an agency is required by the APA to publish a general notice of proposed rulemaking for a proposed rule, it must prepare and make available for public comment an Initial Regulatory Flexibility Analysis ("IRFA"). (5 U.S.C.  603(a).) The agency must then also conduct a Final Regulatory Flexibility Analysis ("FRFA") when it promulgates the final rule. (5 U.S.C.  604) The RFA further requires an analysis of "any . . . significant alternatives" that would accomplish the agency's objective, 5 U.S.C.  603 (emphasis added), and an explanation of "why each one of the other significant alternatives to the rule" was rejected in favor of the final rule. (5 U.S.C.  604 (emphasis added).) Importantly, the agency must consider "alternatives that minimize any significant economic impact of the rule on small entities." (5 U.S.C.  603 (emphasis added).) FS never prepared the required Regulatory Flexibility Agenda or the IRFA for the Proposed Rules. As such, FS failed to consider several significant alternatives that would likely lessen the economic impact on small businesses while achieving the stated objectives. In particular, FS did not consider the significant alternative proposals recommended in the NRC Report, which would have met FS's goals and my, and EAJ's, and EAJ's members, stated objectives. Procedurally, FS violated the notice and comment requirements of the RFA and APA by failing to publish a Regulatory Flexibility Agenda, or an adequate IRFA for public comment prior to promulgation of the Proposed Rule. (See 5 U.S.C.  553 & 609(a)) As a result of FS's said failure to comply with the RFA, the Proposed Rules are arbitrary, capricious, and unlawful within the meaning of the APA, 5 USC 706. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Time Prohibitive This is a Public Comment. What is most disturbing about the Proposed Rules is that there are no limitations on the time FS has to process either a notice of intent or a plan of operations. (Northern Alaska Environmental Center v. Hodel, 803 F.2d 466 (CA9, 1986).) Congress believed that it was reasonable to reduce delay in processing operating plans. (P.L. 105-277, Sec. Of the Interior, Title I, sec. 120, signed by the Pres. on Oct. 21, 1998) This is delineated more fully herein. Violates the Endangered Species Act (the ESA) This is a Public Comment. FS failed to engage in formal consultation with USDI - Fish and Wildlife Service before publishing the Proposed Rules; as is required by the ESA and its implementing regulations. (16 USCA  1536.) Thus, they violated the ESA and its implementing regulations. The purported purpose of the Proposed Rules is to prevent undue degradation, presumably to threatened and endangered species. Fish and Wildlife Service should have been consulted, formally, as to whether any other alternatives would achieve the specified purpose of the Proposed Rules but, were not. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Violates Executive Order No. 12630 This is a Public Comment. FS was required to make the Executive Order No. 12630 disclosures concerning the potential impact of the Proposed Rules upon property rights but, failed to do so. I, EAJ, and EAJ's members, own mining claims; real property, in the National Forests. As was established above, the Proposed Rules would affect a regulatory taking of all of our said properties. Thus, FS violated EO 12630. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv)) This is delineated more fully herein. Violates Executive Order No. 12866 This is both a Public Comment and an Information Collection Comment. FS was required to make the Executive Order No. 12866 disclosures concerning whether the Proposed Rules represents a government action that would significantly effect the Federal Budget but, failed to do so. The Proposed Rules, now, whereas they did not previously, requires each and every small scale miner, for each small scale commercial mining operation, no matter how small, to submit either a notice of intent or a plan of operations for approval. Over 1,200,000 mining operations were previously exempted (prior to the Proposed Rules) from such information collection and permit approval. Were these mining operators, for said 1,200,000 mining operations, to seek approval of their existing mining operations, as it must be presumed that they will or would like to, a significant amount of Federal funding will be required to collect information, to review that information, and to enforce the Proposed Rules. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Violates Executive Order No. 13132 This is a Public Comment. FS, never before, (as they now do), required small scale miners or small scale mining operations, with mining claims within waters of the Western States, to submit for either a notice of intent or a plan of operations. Regulation of the waters of the Western States were left largely to the Western States and, FS merely participated in the promulgation and enforcement of said state regulations. This was so because FS is barred, by statute, as was discussed herein above, from regulating mining in waters. Hence, the Proposed Rules represent an attempt to offend the principals of Federalism as well as to, impermissibly, reduce the apportionment of jurisdiction over waters that has, for more than 200 years, remained exclusively to the states. Because of the Federalism questions and implications (apportionment) that the Proposed Rules represent, FS was required to make the Executive Order No. 13132 disclosures concerning whether the Proposed Rules represent a government action that would offend the principles of Federalism; i.e. impermissibly impose upon or duplicate state and local regulatory powers; but, FS failed to do so. FS was also required to, before implementing the Proposed Rules, to consult with affected state and local officials but, they failed to do so. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Violates the Spirit of the 1998 Interior Appropriations Act This is a Public Comment. Congress has already, implicitly, found that the Proposed Rules have Federalism issues. When BLM proposed a similar set of regulations, (43 CFR subpart 3809), now defunct because they lost in litigation, Congress responded with support for the Western Governors by enacting a provision in the Fiscal Year 1998 Interior Appropriations Act requiring the Secretary to consult with the Western Governors before formally proposing any changes to said regulations. Specifically, section 339 of the 1998 Appropriations Act prohibited the Secretary from any further work "to develop a rulemaking proposal to amend or replace . . ." the existing 3809 rules or to "prepare a draft . . . [EIS] on such proposal . . .," until the Secretary: certifie[d] to the Committees on Energy and Natural Resources and Appropriations of the United States Senate and the Committees on Resources and Appropriations of the United States House of Representatives that the Department of the Interior has consulted with the governor, or his/her representative, from each state that contains public lands open to location under the General Mining Laws. (Pub. L. No. 105-83,  339, 111 Stat. 1543, 1603 (Nov. 14, 1997)) Though, it has not been mandated by Congress, FS knows full well that Congress wanted them to consult with the Western Governors before publishing the Proposed Rules, which they failed to do. This is delineated more fully herein. Violates the Unfunded Mandate Reform Act (the UMRA) This is both a Public Comment and an Information Collection Comment. As was and will be shown, the Proposed Rules will have an impact upon the private sector of more than 100 million dollars in a year. Accordingly, FS was required to, before promulgating the Proposed Rules, to access and to prepare a detailed written statement of said impact, etc., of the Proposed Rules but, they failed to do so. (2 USCA  1531 and 1532.) FS was also required to, before promulgating the Proposed Rules, to consult with affected state, local, and tribal elected officials which, they also failed to do. (2 USCA  1534.) FS was also required to, before promulgating the Proposed Rules, to identify and consider a reasonable number of regulatory alternatives and from those alternatives select the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule, which they also failed to do. (2 USCA  1535.) FS proffered that a notice of intent will, in almost all circumstances, be insufficient, by itself; and, that, a plan of operations will therefore be required for almost every mining operation, no matter how small or insignificant. (Jack Blackwell letter to Supervisors of Region 5.) Hence, FS can be expected to have to process more than 1,200,000 new plans of operations. To require a plan of operations, FS would have to make a determination of likely significant impact. An environmental assessment ("EA") is required for every determination of likely significant impact. FS, by regulation, is to prepare every such EA. (36 CFR  228.4(f).) Preparation of 1,200,000 EAs would be an expensive and time consuming endeavor, to say the least. For every EA that identifies one or more significant impacts to the environment, an environmental impact statement ("EIS") will have to be prepared. Since, for every patented and unpatented mining claim, there are one or more significant impacts to the environment which will be caused by any level of commercial operation, exploratory or extraction, an EIS will have to be prepared for every operating plan. FS, by regulation, is to prepare every such EIS. (36 CFR  228.4(f).) Preparation of 1,200,000 EISs would be an expensive and time consuming endeavor, to say the least. Were FS to prepare the required said detailed written statement, it would have to include a cost benefit analysis.(2 USCA  1532(a)(2).) In its cost benefit analysis FS would, necessarily, have to show the increased cost of preparing numerous (more than 1,200,000) additional operating plans, EA s and EIS's. (36 CFR  228.4(f).) Moreover, FS would have to disclose whether, and to what extent, they are able to carry out, finance, the preparation of said 1,200,000+ operating plans, 1,200,000+ EA s, and 1,200,000 EISs. (2 USCA  1532(a)(2)(B).) Failure to provide for the preparation of said 1,200,000+ operating plans, 1,200,000+ EA s, and 1,200,000+ EIS's is, in itself, a regulatory taking. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) It was found that a similar set of regulations, (43 CFR subpart 3809), now defunct do to the fact that they lost in litigation, would have a substantial impact on the mining industry, which BLM, like FS here, refused to disclose. These same findings apply equally to the Proposed Rules, here. FS, like BLM, is refusing to disclose the extend of the impact upon the small scale mining industry that the Proposed Rules will cause. Notably, a joint study submitted to BLM by economists from the University of Nevada and the University of Chicago estimated that the increase in exploration costs predicted by BLM would result in greatly decreased future mining production (e.g., gold and silver production and employment would decrease by 20%). (John L. Dobra & Michael K. Evans, Economic Analysis of Proposed DOI Rulemaking Subpart 3809 Surface Management, May 1999, at 3) The same joint study concluded that the proposed new 3809 regulations, as amended, would cause a loss in employment in the mining industry of approximately 11,150 jobs, and federal revenues from hardrock mines would decrease by $335 million. (Id.) Even before the proposed new 3809 regulations, were published, dramatic declines in domestic hardrock exploration and development were already well underway, largely as a result of an increasingly onerous regulatory regime in the United States, (Id. at 13-14, 39-47), a trend that the proposed new 3809 regulations, would exacerbate. BLM's FEIS and related economic analyses confirmed industry's fears on the severe adverse economic impact of the, now defunct, 3809 regulations, as amended: The value of mine production originating from public lands under the [new 3809 regulations, as amended,] is estimated to decrease by 10% to 30%, or by $169 million to $484 million across the study area. This level of decreased production would cause the following decreases across the study area: 1. 2,100 to 6,050 jobs. 2. $305 million to $877 million in total industry output. $138 million to $396 million in total personal income (of which $76 million to $218 million is employee compensation). $157 million to $453 million in value-added. Some potential future operations would now be considered subeconomic and therefore would not be developed. Future operations might have shorter mine lives. Or current operations that might expand under these regulations might close sooner than they otherwise would, holding constant other factors such as technology, commodity prices, and political and economic conditions for mining in other countries. A lower level of exploration due to more restrictions would also tend to decrease opportunities for future development, so some deposits would not even be found. (FEIS at 288, vol. 1) The impact of the, now defunct, 3809 regulations, as amended, would have be greatest on rural communities because "[m]ining is . . . important to many rural communities and counties in ways that are not captured by looking strictly at its contribution to the state or regional economy." (FEIS at 281, vol. 1) Mining in rural western counties "contributes a disproportionate share of local employment and income in relation to the industry's contribution statewide." (Id.) For example, in Elko and Eureka counties in Nevada, "metal mining contributed $324 million personal income to the area, about 29% of the area's total personal income" in 1998. (Id.) The FEIS recognized the severe negative impact to Nevada: "In Nevada, impacts to rural communities might be greater than in other states due to the greater estimated decrease in activity (1,050 to 3,200 jobs and $181 to 543 million in industry output)." (Id. at 289, vol. 1) The FEIS further confirmed the dramatic impact of mine closures in small communities: In small isolated communities with a high degree of specialization in mining, the impact of a mine shutting down would be significant. The loss of well-paid jobs would result in outmigration, which would lower real estate values, the volume of local business activity, school enrollments, organizational membership, and community leadership. The tax burden might be increased or the level of services reduced for those who remain in the community. (Id. at 264, vol. 1) And, as the Final Regulatory Flexibility Analysis ("FRFA") made clear, the adverse impact to the hardrock minerals industry will fall squarely on the shoulders of the small businesses that dominate it. (See FRFA at 21) Violates the National Environmental Policy Act (the NEPA) This is a Public Comment. NEPA, (42 U.S.C.  4321-4347), directs federal agencies to prepare a "detailed statement" [an EIS] evaluating the "environmental impact of the proposed [agency] action" and "alternatives to the proposed action" before the agency takes an action "significantly affecting the quality of the human environment." (42 USCA  4332(2)(C).) I, and EAJ, and EAJ's members, have an informational interest in obtaining accurate information about the environmental and economic impacts of mining and the effects of current and proposed regulations addressing those impacts. The NEPA regulations, issued by the Council of Environmental Quality to govern the implementation of NEPA by all agencies, direct that " [h]uman environment' shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. . . . When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment." (40 CFR  1508.14) In NEPA, Congress also directed federal agencies to "use all practicable means" to accomplish several goals, including to "achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities." (42 USCA  4331(b)(5).) In addition, the Congressional declaration of national environmental policy included the goal "to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." (42 USCA  4331(a).) In the Proposed Rules, FS failed to analyze, or objectively and rigorously evaluate, all reasonable alternatives to the rulemaking as required by NEPA, including but not limited to the "no action" alternative and the paramount alternatives recommended by the NRC Report. In the Proposed Rules, FS also failed to consider and adequately assess the direct, indirect, and cumulative impacts of all reasonable alternatives and the same cumulative adverse socio-economic impacts from the combined effect of the Proposed Rules, in conjunction with other federal regulatory actions finalized and proposed in recent years, which work to increase the cumulative cost of the Proposed Rules, while also diminishing their marginal environmental benefit. The Proposed Rules fail to use reliable methodology in violation of NEPA and its implementing regulations. FS also failed to allow scoping of the Proposed Rules before they published it; or, they ignored what scoping was provide to them. This failure is in direct contravention of the regulations of the Council on Environmental Quality which codify the need to "ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." (40 CFR  1500.1(b), (emphasis added)) Due to FS's failure to comply with NEPA, the Proposed Rules, are unlawfully promulgated and are arbitrary, capricious, and otherwise unlawful within the meaning of the APA, 5 U.S.C.  706. This is delineated more fully herein. Proposed Rules are Inconsistent with the NRC Report This is a Public Comment. FS's Proposed Rules, like BLM's similar set of regulations, now defunct because they lost in litigation, are inconsistent with the NRC Report. Please take judicial notice of the fact that said NRC Report also made recommendations to FS. Following BLM's limited consideration of the NRC Report's recommendations, Congress once again took legislative action to bar unwarranted revisions to the existing 3809 rules and compel adherence to the NRC Report's conclusions. Thus, section 357 of the 2000 Consolidated Appropriations Act provided: None of the funds in this Act or any other Act shall be used by the Secretary of the Interior to promulgate final rules to revise 43 C.F.R. Subpart 3809, except that the Secretary, following the public comment period required by section 3002 of Public Law 106-31, may issue final rules to amend 43 C.F.R. Subpart 3809 which are not inconsistent with the recommendations contained in the National Research Council report entitled "Hardrock Mining on Federal Lands" so long as these regulations are also not inconsistent with existing statutory authorities. Nothing in this section shall be construed to expand the existing statutory authority of the Secretary. (Pub. L. No. 106-113,  357, 113 Stat. 1501 (Nov. 29, 1999) (emphasis added)) In the Fiscal Year 2001 Interior Department Appropriations Act, Congress expressly rejected Solicitor Leshy's interpretation of section 357 and reauthorized the same language from Pub. L. 106-113. (See Pub. L. No. 106-291,  156) The Conference Report makes Congress' intent with regard to NRC Report and the new 3809 regulations, as amended, unambiguous: Section 156 allows the Bureau of Land Management to promulgate new hardrock mining regulations that are not inconsistent with the National Research Council Report entitled "Hardrock Mining on Federal Lands." This provision reinstates a requirement that was included in Public Law 106-113. In that Act, Congress authorized changes to the hardrock mining regulations that are "not inconsistent with" the Report. . . . The statutory requirement was based on a consensus reached among Committee Members and the Administration. On December 8, 1999, the Interior Solicitor wrote an opinion concluding that this requirement applies only to a few lines of the Report, and that it imposes no significant restrictions on the Bureau's rulemaking authority. The Committee does not agree with the solicitor's opinion, and does not intend the language in this section to constitute any ratification of or agreement with that opinion. (H.R. Rep. No. 106-914 at 154 (Sept. 29, 2000) (emphasis added)) This is delineated more fully herein. Hearings are Required Prior to Revocation of State Permits This is a Public Comment. The Proposed Rules will, effectively, revoke my, and EAJ's members, California Permits and other State Permits and, without good cause. According to due process, constitutional mandate, before terminating a permit, a hearing is required. (Moulton v. State, 412 N.W.2d 487, 494 (S.D., 1987).) Accordingly, I, and EAJ's members, request that FS provide us a hearing before revoking our California Permits and our other State Permits. This is delineated more fully herein. Proposed Rules are a Major Federal Action Necessitating an EIS This is both a Public Comment and an Information Collection Comment. The Proposed Rules are not only a set of rules but they are also a new policy to eliminate the exemptions previously enjoyed by small scale miners from having to submit either a notice of intent or a plan of operations. (5 USCA  551) Such an action is a major Federal action. (40 CFR  1508.18, 1502.3, and 1502.4) Adoption of official policy, such as this one, also constitutes a major Federal action.(40 CFR  1508.18) A major Federal action requires the preparation of an EIS. (40 CFR  1502.3, and 1502.4) FS failed to prepare an EIS for the Proposed Rules. As such, FS violated NEPA and its implementing regulations. This is delineated more fully herein. Alternatives are Insufficient This is a Public Comment. FS failed to pose alternatives to the Proposed Rules. At the very least, FS should have considered the do nothing alternative. (40 CFR  1508.9.) They should also have considered the other alternatives provide by miners, including us, which they did not. As FS failed to pose or consider any alternatives to the Proposed Rules, what to speak of any reasonable alternatives, they violated NEPA and its implementing regulations. This is delineated more fully herein. Failed to Prepare an EA and an EIS This is a Public Comment. FS failed to prepare an environmental assessment ("EA") for these Proposed Rules. Had it done so, prepared an EA, it would have determined, premised thereupon, to prepare an environmental impact statement ("EIS") for these Proposed Rules. The purpose of an EA is to decide whether an EIS must be prepared. (40 CFR  1501.4(a), (b), and (c); Natural Resources Defense Council v. Devall (E.D. Cal., 1991) 777 F.Supp. 1533, 1538-39; Jones v. Gordon (CA9, 1986) 792 F.2d 821, 827) If the agency, in the EA, identifies one or more potentially significant impacts to the environment, which the project may cause, it must prepare an EIS. (42 USC  4332; 40 CFR  1501.4(e) and 1508.13; Natural Resources Defense Council v. Devall (E.D. Cal., 1991) 777 F.Supp. 1533, 1538-39; Sierra Club v. U.S. FS (CA9, 1988) 843 F.2d 1190, 1193.) As was established above, the Proposed Rules will likely cause a number of significant impacts to National Forest resources as well as to the economies (industries and people) that depend upon them. The Proposed Rules are not exempt from the preparation of NEPA documentation because the Proposed Rules present a number of extraordinary circumstances. (FSH 1905.15, 30.3(1 & 2).) As such, FS is required to prepare an EIS for the Proposed Rules. FS failed to prepare an EA and an EIS for the Proposed Rules. As such, FS violated NEPA and its implementing regulations. This is delineated more fully herein. Proposed Rules Violate our Right to Just Compensation This is a Public Comment. I, and EAJ's members, own interest in properties (un-patented mining claims) and interests in other properties (patented mining claims) in the National Forests. Prior to these Proposed Rules, we could mine our un-patented, and patented, mining claims all year round; and, without obtaining a plan of operations. Now, we can no longer do so. Thus, our un-patented, and patented, mining claims, in the National Forests, have been taken as a consequence of these latest Proposed Rules. Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. (US Const., Amend 5 and Amend 14; Cal Const, Art. I,  19.) As such, we are due just compensation by law for said takings. To date, we have not been paid just compensation for said takings of our un-patented, and patented, mining claims. This is delineated more fully herein. Proposed Rules Violate our Right to Due Process of Law This is a Public Comment. As was explained above, FS, by the Proposed Rules, is taking our un-patented, and patented, mining claims. FS is expressly not authorized to use the power of eminent domain to take un-patented mining claims or real property, for that matter. The counties, the cities, or the State can do that; and, if they do so, they would have to comply with State Eminent Domain Law, in so doing. (See Cal Code of Civil Proc  1245.210 et seq., for example.) So can the United States. This they have not done. A person may not be deprived of life, liberty, or property without due process of law. (Cal Const, Art. I,  7; US Const, Amend 5 and Amend 14.) As neither, the State, the counties, nor the cities, nor the United States, has complied with the Eminent Domain Law, before taking our un-patented, and patented, mining claims and interests therein, they have therefore violated our right(s) to due process of law. This is delineated more fully herein. Proposed Rules Withdraw more than 5000 acres of Federal Lands from their Prior Use This is a Public Comment. For the most part, miners mine on un-patented, and patented, mining claims on Federal Lands, on Federal Waters, on Federal Submerged Lands; or, on lands, submerged lands, or waters, administered by the Federal government. Un-patented, and patented, mining claims are a creature of Federal law; the Mining Act of 1872, as amended. They are also governed specifically by Mining Districts established by Congress. The Federal government therefore has either complete or concurrent jurisdiction, here; and, as such, the Federal Land Planning and Management Act of 1976 (FLPMA), as amended, applies. As was explained above, the Proposed Rules effectively takes all un-patented, and patented, mining claims. Cumulatively, these said taken mining claims consist of hundreds of thousands of acres. Thus, these latest Proposed Rules effectively removes from mineral entry more than 5,000 acres from its prior use. A regulation (a de facto closure) which removes more than 5,000 acres from its prior use, or from mineral entry, is a withdrawal within the meaning of the Federal Land Planning and Management Act of 1976, (FLPMA). (Mountain States Legal Foundation v. Andrus, (D.C. (Wyo.) 1980) 499 F.Supp. 383; 36 CFR 13.22(c)(4); 50 CFR  36.42(c)(4).) It "operates to remove lands from public use" and, as such, constitutes a "withdrawal" subject to FLPMA. (Mountain States Legal Foundation v. Andrus, (D.C. (Wyo.) 1980) 499 F.Supp. 383; FLPMA 204(c); 43 USCA 1714(c); FLPMA 103(j); 43 USCA 1702(j).) Congress has expressly retained the power to make such withdrawals that remove more than 5000 acres from its prior use; or, which withdraw Federal Lands, or Federally administered Lands, from mineral entry. (Mountain States Legal Foundation v. Andrus, (D.C. (Wyo.) 1980) 499 F.Supp. 383; FLPMA 204(c); 43 USCA 1714(c); FLPMA 103(j); 43 USCA 1702(j).) Congress has not approved these latest Proposed Rules. As these latest Proposed Rules have not been approved by Congress and, they operate as a withdrawal from mineral entry, subject to FLPMA, and of more than 5000 acres from its prior use, they are therefore void, ab initio. This is delineated more fully herein. Proposed Rules Preempt Federal Law and Federal Jurisdiction This is a Public Comment. Again, the Proposed Rules interfere with the exclusive Congressional authority and jurisdiction over withdrawals of Federal land, withdrawals from mineral entry, and over withdrawals of Federal land exceeding 5000 acres. It also circumvents FLPMA. Thus, it preempts Federal law, FLPMA, and Federal jurisdiction. FS was required to disclose this fact, that its latest Proposed Rules preempts Federal law and Federal jurisdiction. For FS's failure to make that disclosure, alone, the Proposed Rules are therefore void. As, the Proposed Rules preempts Federal law and Federal jurisdiction, they are unconstitutional and therefore void. The Proposed Rules also preempt the Federal Mining Law of 1872, as amended. This is because they prohibit mining where the Mining Law of 1872, as amended, allows it, under reasonable regulation. Remember, the Proposed Rules prohibit profitable commercial mining. If profitable, commercial, mining is prohibited, then mining is prohibited on those mining claims. (See South Dakota Mining Assoc. v. Lawrence County (8th Cir. 1998) 155 F.3d 1005.) If mining is prohibited then Federal law, the Mining Law of 1872, as amended, is preempted. (South Dakota Mining Assoc. v. Lawrence County (8th Cir. 1998) 155 F.3d 1005.) As, the Proposed Rules prohibit mining of un-patented, and patented mining claims, they preempt the Federal Mining Law of 1872, as amended; and, as such, are unconstitutional and therefore void. This is delineated more fully herein. FS is committing Fraud, is being Deceitful, and is Entrapping the Miners, here This is a Public Comment. By these Proposed Rules, FS is claiming that a mining claimant can recreate, by mineral collecting the mineral (or a precious metal, or a gem) claimed, on their mining claim. Additionally, FS is claiming that one who recreationally collects minerals, on a mining claim, can sell that mineral. It is unlawful to hold a mining claim for other than commercial mining purposes. It is unlawful to sell any mineral recreationally collected on lands administered by the FS. Essentially, FS is making said representations, in these Proposed Rules, that they know or should know are untrue. Thus, they are committing fraud upon the small scale miners, as a class. Most miners, who read these Proposed Rules, would not know that they are being frauded, as such. They cannot be expected to. This is because, they neither possess the legal acumen nor, can afford to retain legal counsel, to discern the difference. They are, effectively, being deceived. Since, FS is committing said fraud, intentionally, (with the intent of precluding mining, unlawfully); and, in the process, is deceiving the majority of the miners, who will be affected thereby, they are being deceitful, as well. The miners, who will be deceived, by these Proposed Rules, as a result of said FS intent to deceive them, can be expected to mine their claims, in an imprudent manner; by hand. Thus, we expect that many of them will be recreating and holding mining claims for recreation purposes; unaware that, by so doing, they will be committing crimes. Thus, FS by these Proposed Rules is entrapping the miners into committing these criminal acts. This is delineated more fully herein. A Special Use Authorization Cannot Be Required for a Mining Use or Occupancy This is a Public Comment. The elements of a 36 CFR 261.10 offense may be identified by dividing the words of the regulation into logical groups. These elements therefore are the following: (1) use or occupancy of National Forest System land; (2) without special-use authorization; (3) when such authorization is required. A violation notice, if issued, would fail to state an offense because a special-use authorization cannot be required for a mining activity. As explained in a recent case in the Eastern District of California, because an activity covered by the Forest Service's mining regulations is excluded from the special use regulations, (see 36 CFR 251.50(a), [footnote quoting this regulation omitted]), one cannot obtain a special use authorization for an activity which is subject to the mining regulations. (United States v. Lex, 300 F. Supp. 2d 951, 959-60 (E.D. Cal. 2003). 36 C.F.R. 251.50(a) states in part that [a]ll uses of National Forest System lands, improvements and resources, except those provided for in the regulations governing the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222), are designated special uses. Before engaging in a special use, persons or entities must submit an application to an authorized officer and must obtain a special use authorization from the authorized officer unless that requirement is waived. In the Lex case two miners were cited for a violation of 36 C.F.R. 261.10(b) because they were camping for an extended period on their mining claim on a tributary (Cecil Creek) of the South Fork of the Salmon River. That particular regulation prohibits [t]aking possession of, occupying, or otherwise using National Forest System land for residential purposes without a special-use authorization, or as otherwise authorized by Federal law or regulation. Senior Judge Karlton decided on appeal that the miners in Lex could not obtain a special-use authorization for their activity which was subject to the mining regulations but nevertheless were otherwise authorized to occupy the land by virtue of the mining laws of the United States. Because mining activities are excluded from the special-use regulations, they do not require and in fact cannot be granted a special-use authorization under the controlling authority of the Lex case. This is delineated more fully herein. FS Fails to Show a Special Use Authorization is Required for a Mining Use or Occupancy This is a Public Comment. A special-use authorization cannot be required for a mining activity because the special use authorization regulation, 36 CFR 251.50, excludes activity covered by the Forest Service's mining regulations. This is the interpretation of the United States District Court for the Eastern District of California. (United States v. Lex, 300 F. Supp. 2d 951, 959-60 (E.D. Cal. 2003)(because activity covered by the Forest Service's mining regulations is excluded from the special use regulations, see 36 C.F.R. 251.50(a), [footnote quoting this regulation omitted], the appellants could not obtain a special use authorization for their activity which was subject to the mining regulations). FS avoids addressing this argument. They never even mention the special use authorization regulation, 36 CFR 251.50, let alone the language in part (a) of that regulation that states that uses provided for in the regulations governing minerals are not special uses for which a special use authorization is needed. FS tried to distinguish the Lex case on specious grounds. The Lex defendants (also appellants) were conducting mining activities but the FS implied they are regulating for [t]aking possession of, occupying, or otherwise using National Forest System land for residential purposes without a special-use authorization, or as otherwise authorized by Federal law or regulation. (36 CFR 261.10(b).) Senior Judge Karlton decided on appeal that the miners in Lex could not obtain a special-use authorization for their activity which was subject to the mining regulations but nevertheless were otherwise authorized to occupy the land by virtue of the mining laws of the United States. The act of camping on the land for the purpose of mining therefore was an activity subject to the mining regulations and the Lex defendants could not obtain a special use authorization for this activity because it is excluded from the special use regulations. An activity covered by the FS's mining regulations is not a special use and therefore cannot be cited under 36 CFR 261.10(k), which prohibits [u]se or occupancy of National Forest This is delineated more fully herein. The Proposed Rules do not Change 36 CFR  251.50 This is a Public Comment. Basically, the Proposed Rules do not change 36 CFR 251.50, insofar as it excludes, from the category of special uses, those uses authorized by the regulations governing minerals (part 228). Remember, said exclusion was upheld by the rationale of the Lex decision, in connection with the exclusion of mining activities, from the special use authorization regulations. This is delineated more fully herein. US-EPA does not have Jurisdiction over Suction Dredge Mining Operations This is both a Public Comment and an Information Collection Comment. For their Proposed Rules, FS claims that they must have the United States-Environmental Protection Agency ("US-EPA") review operating plans for suction dredge mining operations. Dredging spoil from a suction dredge (under the CWA), is administered by the Secretary of the Army and not the EPA. Under  404 of the Amendments, at 33 U.S.C.S.  1344, the sole and exclusive responsibility for the administration of dredging operation was vested in the Secretary of the Army and not with the Environmental Protection Agency or any state. (Minnesota v. Hoffman, 543 F.2d 1198 (CA8 1976), cert. denied sub nom. Minnesota v. Alexander, 430 U.S. 977 (1977)) This is because it is not regulated under the NPDES. Unlike all other pollutants, dredged spoil is not regulated under the NPDES,  402, 33 U.S.C.  1342 (Supp. IV), since  402 (a)(1) establishing the NPDES begins, as we have seen, n30 with the words, "except as provided in sections 318 and 404." n31 .... n31 That dredged spoil is not regulated under the NPDES is true whether the NPDES permit program is administered by EPA pursuant to  402(a), or by a state, pursuant to  402(b). As can be seen from the structure of  402 (E.g.,  402(a)(3), stating that the NPDES program is subject to "the same terms, conditions, and requirements" whether administered by the states or EPA, as well as  402(c), stating that any state permit program under this section shall be in accord with  402), the NPDES is a particularized unitary program. Thus state-administered NPDES permit programs, as well as EPA-administered NPDES programs are limited by the exceptions delineated in  402(a)(1). (Minnesota v. Hoffman, 543 F.2d 1198 (CA8 1976), cert. denied sub nom. Minnesota v. Alexander, 430 U.S. 977 (1977)) The applicable language of  402 (a)(1), ("except as provided in sections 318 and 404."), relied upon in Minnesota v. Hoffman, has not changed. Nor, have any subsequent court rulings, ruled upon or reversed that holding. Nor, do any regulations differ from that holding. (for example, see 40 CFR  122.1, 122.3 and 122.21.) Even though several courts have, through dicta only, explained that subsequent amendments to the CWA means that dredging activities are subject to state water quality laws, they are inapplicable to this issue. (North Dakota v. U.S. Army Corps of Engineers, 270 F.Supp.2d 1115 (2003); and, Environmental Defense Fund, Inc. v. Costle, 636 F.2d 1229 (1980).) Since that is not the issue here, whether a State can regulate suction dredging activities through and by its own water quality laws, that dicta is irrelevant. By law, the U.S. EPA does not have the jurisdiction to issue a general permit, or any permit, for suction dredge mining operations. This is delineated more fully herein. Suction Dredge Mining Operators would Unnecessarily also have to Comply with  404 This is both a Public Comment and an Information Collection Comment. Suction dredge mining operations must be in compliance with the permit issuance procedures of 33 USCS  1344. (33 USCS  1311(a) and 1344.) It appears that dumping dredged spoil into navigable waters without compliance with the permit issuance procedures of  1344 is an "unlawful act" under  1311(a) and thus a violation of an "effluent standard or limitation" as that term is defined in the FWPCA. (Save Our Sound Fisheries Assoc. v. Calloway, 387 F.Supp. 292 (1974).) Even were the States to regulate suction dredge mining operations exclusively under their own authority, (such as ORS 468B.050 or the Cal. 14 CCR 228), those same operators would still be required to comply with the permit issuance procedures of  1344. Such redundancy should, and can, be avoided. This is delineated more fully herein. General Permit/Regulations have no Nexus, are Uninformative, and Prevent Participation This is both a Public Comment and an Information Collection Comment. FS failed to point out this redundancy. This is not an immaterial defect. FS is processing the Proposed Rules, allegedly to reduce redundancy and paperwork. As they will not have the desired effect, the Proposed Rules cannot therefore be related to their purpose. In other words, they have no nexus. As FS failed to point this out; that, suction dredge mining operators under the Proposed Rules would have to acquire two permits to operate the same operation, one from the State and another from the U.S. Army Corps of Engineers, it fails as an informative document, as well. This failure to inform is fatal for it prevents the public from being fully informed and, as a consequence thereof, from participating in the regulatory process. Without being fully informed, one cannot adequately participate. This is delineated more fully herein. FS Officers and Employees are presumed to have a Conflict of Interest, here This is a Public Comment. A State can apply for a  404 general permit for suction dredge mining operations. (33 USCS  1344(e).) Such general permits are applied for and issued in accordance with the regulations at 40 CFR part 233. Should any State do so, apply for a  404 general permit for suction dredge mining operations, that State must comply with 40 CFR  233.4; the conflict of interest provision. This conflict of interest, 40 CFR  233.4, and other conflict provisions and policies like it, also apply to FS, here, and for their promulgation of these Proposed Rules. Officers or employees of FS, who are or were members of environmental organizations that have proclaimed their absolute opposition to small scale mining, regardless of whether it is a lawful activity, have a direct personal conflict of interest in promulgating regulations for, or which affect, small scale mining. Officers or employees of FS, who are or were members of environmental organizations that have formally given notice of intent to sue for failing to require an NPDES permit, when one is not required, have a direct personal conflict of interest in promulgating regulations for, or which affect, suction dredge mining. Officers or employees of FS, who hold mining claims, who hold a permit to mine or, who sell mining equipment, have a direct pecuniary conflict of interest in promulgating regulations for, or which affect, small scale mining. The officers and employees of FS, all of them, who prepared these Proposed Rules failed to, before they began, file a conflict of interest disclosure statement (disclosing the organizations they belong to or had belonged to) and to submit said disclosure statements on the record; made them available for public review. Had they done so, disclosed that they have been or are a member of any one of a number of environmental organizations, we would have opposed their participation on grounds of direct conflict. As such, we and I assume that, in the absence thereof, that all the officers and employees of FS, involved in the promulgation of these Proposed Rules, have direct conflicts of interest. It is ours and my opinion that, since these Proposed Rules were prepared by officers and employees of FS, who must be presumed to have said direct conflicts of interest, they, these Proposed Rules, are therefore invalid. This is delineated more fully herein. It is a Conflict of Interest to be, or have been, a member of an Unscientific Organization This is a Public Comment. It is a conflict of interest to be, or to have been, a member of an unscientific organization. Non-profit organizations, what to speak of environmental non-profit organizations, are precluded from being unscientific, by law. For example, ONRC, (the "Oregon Natural Resources Council"), and the CBD, (the "Center for Biological Diversity"), are two such unscientific organizations. It is our understanding that the ONRC and the CBD submitted public comments in support of these Proposed Rules. In their comment letters they did not actually provide any public comments. This is because they did not offer any reasonably specific comments. (See, Mosville Envtl. Action Now v. EPA, 370 F.3d 1232 (DC Cir., 2004).) Comments must be reasonably specific to exhaust administrative remedies. Instead of providing reasonably specific comments, like they were supposed to do, ONRC submitted a single study, the1995 Forest Service Report - Effects of Suction Dredging on Streams: A Review and Evaluation Strategy. Either they submitted one study because it was the only one of its kind or, because they rejected all others. The Center for Biological Diversity also submitted this said Study. The said 1995 Forest Service Report is not the only one of its kind. (this Declaration.) Hence, ONRC and CBD rejected all the other studies. This is an inappropriate, unscientific, method of review of the literature. To reject a study one would have to, first, produce the study rejected and, then, explain why it was rejected. ONRC and CBD did neither. The FS staff, promulgating these Proposed Rules, are guilty of the same said offenses, just mentioned, in their promulgation of these Proposed Rules. They also failed to review all the pertinent and important available literature or give reasons, and show, the studies they rejected. Like ONRC and CBD, they merely selected the studies they (emotionally) felt would apply. Clearly, they, the FS staff promulgating these Proposed Rules, by utilizing this unscientific procedure for review of the available scientific literature, have exhibited their inherent bias and unwillingness to perform their duties, in this regard, objectively and scientifically. Not only must they be discharged from the promulgation of these Proposed Rules but, the new staff, assigned thereafter, would have to start from scratch. All the prior work has been tainted as a result of FS's failure to follow accepted scientific procedures. These are but only two of the reasons that FS staff members, who are affiliated with ONRC or CBD, or any other such unscientific environmental organization, have a conflict of interest in promulgating regulations affecting suction dredge mining, small scale mining, and these Proposed Rules. They are incapable of, or unwilling to; (1) present reasonably specific public comments, or; (2) performing a scientific, unbiased, review of the available literature. We did not reference, or list, the many other available studies for fear of being accused of endorsing them. If FS receives studies from any environmental organization, it becomes incumbent upon them, their duty, to search for other literature, other than that literature which was provided to them, or, face the accusations of bias and un-professionalism we bring, here. When we review a study, concerning suction dredge mining, we ask the following questions: ù Was it prepared by engineers with hydrology experience and credentials? ù Was it prepared by engineers with sediment transport experience and credentials? ù Was it prepared by engineers with hydro-geology experience and credentials? ù Was it peer reviewed by engineers with hydrology experience and credentials? ù Was it peer reviewed by engineers with sediment transport experience and credentials? ù Was it peer reviewed by engineers with hydro-geology experience and credentials? ù Was there any actual testing done? ù Was the data empirically derived? ù Was the data produced from the testing, and the tests taken, sufficient in number to be able to make statistically valid findings and conclusions? ù Was the equipment used in the testing typically that used in the industry? ù Was the equipment operated in the manner typically done in the industry? ù Were the conclusions premised upon actual findings? ù Was there a discussion of contributing impacts on the stream tested from other sources? ù Was there a discussion of the relative impact levels of each contributing impact on the stream tested from the other sources? ù Was there a discussion of the pre-existing state (prior cumulative impacts) of the stream prior to testing? We are appalled that FS did not ask such questions in their review of the the1995 Forest Service Report - Effects of Suction Dredging on Streams: A Review and Evaluation Strategy. We are appalled that FS did not review any other literature, concerning mining, in their promulgation of these Proposed Rules, other than that presented to them by biased environmental organizations. We are appalled that FS did not perform any research, on their own, through the vast body of available scientific literature, concerning mining, in the promulgation of these Proposed Rules. This is delineated more fully herein. There is no MOU between the US Army Corps and the EPA concerning Mining This is both a Public Comment and an Information Collection Comment. It is our understanding that FS has been informed, by various entities, agencies, and individuals that the 1986 MOA between US Army Corps of Engineers (the "Corps") and US EPA (EPA) relegates CWA administration of suction dredge mining activities entirely unto EPA. (See 51 FR 8871, March 14, 1986) This is to respond to (dispel) that supposition. During rule making, both Corps and EPA explained that it is mandated by Congress and preferred that activities, such as suction dredge mining, continue to be administered by Corps under section 404 of the CWA. They also explained that the 1986 MOA does not mean, and never did mean, otherwise. (67 FR 31129, May 9, 2002 from 31136-31129, section II.D.) The entire text of that section (II.D.) of that federal register notice (67 FR 31129, May 9, 2002) is attached hereto as Exhibit 2, herein below, and is incorporated herein, by this reference, and made fully a part hereto by said reference, and also made both a Public Comment and an Information Collection Requirements Comment, by said reference. This is delineated more fully herein. Proposed Rules Violate 30 USCA  472 of the Mining Law of 1872, as Amended This is a Public Comment. The Proposed Rules do not distinguish between mining operations and prospecting. As such, FS, by these Proposed Rules, is regulating prospecting; requiring either a notice of intent or a plan of operations for all prospecting activities on national forest system lands. The Secretary of Agriculture, by statute, is precluded from regulating prospecting over national forests system lands, except acquired lands and areas withdrawn from entry and location. (30 USCA  472) FS can regulate prospecting over acquired lands, of which there are relatively few; almost entirely within the eastern states. (30 USCA  520) The Proposed Rules, for the most part, applies to the 11 western states, which have even fewer acquired lands. Hence, the Proposed Rules are therefore a significant violation of the Mining Law of 1872, as amended. As FS is precluded, by statute, from regulating prospecting over non-acquired national forest system lands, they therefore do not have the jurisdiction to do so. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Proposed Rules Violate 16 USCA  482 et seq. This is a Public Comment. The Proposed Rules require either a notice of intent, bonded notice, or a plan of operations, for all mining activities on National forest system lands. (69 FR 41428) Mineral lands were never meant to be a part of the National Forests. (16 USCA  475) By statute, Congress allowed for certain mineral lands, within the National Forests, to be restored to the public domain, by petition. (16 USCA  482) Certain lands, under that statute, were, in fact, restored to the public domain. (16 USCA  482a, 482b, 482c, 482d, 482e, 482f, 482g, 482h, 482h-1, 482h-2, 482h-3, 482i, 482j, 482k, 482l, 482m, 482n, 482n-1, 482n-2, 482n-3, 482o, 482p, 482q) We prospect in said areas and are exempted from having to acquire a permit or from having to pay fees to do so there. (16 USCA  482a, 482b, 482c, 482d, 482e, 482f, 482g, 482h, 482h-1, 482h-2, 482h-3, 482i, 482j, 482k, 482l, 482m, 482n, 482n-1, 482n-2, 482n-3, 482o, 482p, 482q) As the Proposed Rules require both, a permit and fees, for mining operations in said areas, they violate said codes. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Proposed Rules Violate the Existing 36 CFR  228.8(h) and Preempt States' Jurisdiction This is a Public Comment.The Proposed Rules expressly claim to preempt state law and regulation. All of the 11 western states regulate mining in waters of their respective states. Each of said states has certified that their regulations are in conformance with the existing 36 CFR part 228. No FS determination is required or necessary to validate said certifications. Any such FS determination of said certifications, unlawfully, preempts state law and jurisdiction. Miners need only comply with the applicable state codes and regulations, over waters of the states and other state lands; and, need not comply with 36 CFR part 228, including 36 CFR  228.4. Compliance with 36 CFR part 228 is exempted, under such state certifications. (existing 36 CFR  228.8(h).) Under the existing 36 CFR  228.8(h), and other such related existing codes and regulations, FS cannot preempt state code and regulations of mining. (California Coastal Commission v. Granite Rock Co. (1987) 480 U.S. 572, 107 S.Ct. 1419); yet, they are, here. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Proposed Rules are Substantive Rules This is a Public Comment. Prior to promulgation of these Proposed Rules, no rule in 36 CFR part 228, or any other part, and especially 36 CFR  228.4, mentioned preemption of state code and regulation. (All federal register notices for 36 CFR part 228.) Preemption is only possible where preemption is mentioned. (California Coastal Commission v. Granite Rock Co. (1987) 480 U.S. 572, 107 S.Ct. 1419.) As said preemption was never mentioned before, is not mentioned in these Proposed Rules and, preemption has far reaching and significant consequences, the Proposed Rules are therefore substantive rules. FS's failure to publish or process the Proposed Rules as substantive rules is fatal. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. FS cannot Enforce the Proposed Rules This is a Public Comment. FS has no means of enforcing the Proposed Rules; not even for trespass. Only the states have the jurisdiction to prosecute a trespass over the National Forests. (16 USCA  480; U.S. v. Waites (CA9 (Or.) 2000) 198 F.3d 1123.) As the Proposed Rules are unenforceable by FS, FS cannot therefore cite anyone for a violation thereof. This is delineated more fully herein. Proposed Rules Violate 16 USCA  1536(a)(2) of the ESA This is a Public Comment. FS alleges that the Proposed Rules are necessary to protect threatened and endangered species. Yet, they offer no evidence to support that allegation. In making this determination of necessity, FS failed to consult with the Secretary of the Interior (U.S. Fish and Wildlife Service) or the Secretary of Commerce (National Marine Fisheries Service). Hence, there is no concurrence among these agencies with FS's determination of necessity. FS also failed to employ the best scientific and commercial data available in making that determination of necessity. These are violations of 16 USCA  1536(a)(2). The Proposed Rules will not achieve FS's desired result. In fact, they will cause the opposite result as they will cause a vast amount of precious government resources to be utilized for the unnecessary processing of numerous notices of intent, numerous bonded notices, numerous plans of operation, numerous EA s and EISs, numerous validity exams, and numerous legal actions; resources that could have been spent, instead, upon directly protecting threatened and endangered species. The Proposed Rules are unnecessarily over burdensome, in that they are far more regulation than is necessary to achieve the desired result. Other, unexplored, alternatives would better achieve FS's desired result. Had FS used the best scientific and commercial data available they would have discovered other more viable, less costly, alternative means of regulating mining. Had FS consulted with the Secretary of the Interior (U.S. Fish and Wildlife Service) and the Secretary of Commerce (National Marine Fisheries Service), these agencies would have recommended other more viable, less costly, alternative means of regulating mining. As a result of the Proposed Rules, we will be precluded from mining our claims; either temporarily (the 5 to 10 years it takes to process a plan of operations) or completely, as was explained more fully herein. In addition to harm to our direct economic interests, we are also concerned, have indirect vested interests, in seeing that the environment is properly protected. FS's failure to consult here is presumed to be harmful to threatened and endangered species. Unless FS protects threatened and endangered species, we will be precluded from mining altogether. The cost of mitigation will become too costly to allow us to mine at a profit. Mining is only permitted to occur (under the Mining Law, 30 USCA  21 et seq.) at a profit. (U.S. v. Lavenson (W.D.Wash. 1913) 206 F. 755) As such, we are directly harmed by FS's failure to consult with the Secretary of the Interior (U.S. Fish and Wildlife Service) and the Secretary of Commerce (National Marine Fisheries Service). These interests, and the harm thereto, are in the sphere (zone) of interest which are redressable under the ESA. (16 USCA  1540(g); Bennett v. Spear (U.S. Or., 1997) 520 U.S. 154, 117 S.Ct. 1154) In addition to harm to our economic interests, we are also concerned, have other interests, (health), in seeing that the environment is properly protected. FS's failure to consult here is presumed to be harmful to threatened and endangered species. Unless FS protects threatened and endangered species, our outdoor recreation opportunities will be significantly diminished. This presents a two fold problem. The first is that we will have considerably less opportunities to engage in outdoor recreation; a consequence which is deemed, by law, to be extremely detrimental to our health.(16 USCA  460l-4) The second is that, the Proposed Rules precludes us from engaging in the various outdoor recreation activities (while mining) which the National Forests afford, by law. (National Outdoor Recreation Act of 1963, 16 USCA  460l et seq.) Though, we may recreate elsewhere, we would have to travel further away from our mining operations to do so. This extra travel time not only has direct extra cost but reduces the time that we may mine, as well. We will tend to reduce our outdoor recreation time to compensate. Such a reduction in outdoor recreation time will impair We' health. (16 USCA  460l-4) As such, we are directly harmed by FS's failure to consult with the Secretary of the Interior (U.S. Fish and Wildlife Service) and the Secretary of Commerce (National Marine Fisheries Service). These interests, and the harm thereto, are in the sphere (zone) of interest which are redressable under the ESA. (16 USCA  1540(g); Bennett v. Spear (U.S. Or., 1997) 520 U.S. 154, 117 S.Ct. 1154) This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Proposed Rules Impermissibly Abrogates Our Water Rights This is a Public Comment. The Proposed Rules proclaim to preempt states' laws and regulations of mining. As such, the Proposed Rules, effectually, revokes all prior-existing water rights and requires all miners to acquire new water rights from FS to operate their mines. Hence, the Proposed Rules would affect, substantially change, prior-existing water rights. Mining claimants enjoy a statutory right to water, and through their respective states. (16 USCA  481; 30 USCA  26, 51 and 52; and, 43 USCA  661) This is so, mostly, because each of the 11 western states has occupied that area of the law; especially over waters of the state, within the National Forests. As the Proposed Rules revoke prior-existing water rights, they are therefore unlawful. It has been, for long, the custom of miners, within the National Forests, to appropriate water from and within nearby streams or rivers without obtaining authorization from either State or Federal agencies. Such diversions, made prior to October 21, 1976, (the enactment of the Federal Land Policy and Management Act of 1976 (FLPMA).), are both authorized by law and vested. (30 USC  51 and 52; 43 USCA  661; 43 USCA 1769(a); Andrus v. Charlestone Stone Products Company, Inc. (1978) 436 US 604, 614-15, 98 S.Ct. 2002, 2008-09; Elko County Board of Supervisors v. Glickman, 909 F.Supp. 759, 763 (D. Nev., 1995).) As they are authorized by law and vested, such water diversions cannot therefore be abrogated by the Proposed Rules. On July 3, 1978 the State of California, like each of the other 11 western states, granted the United States and its agencies the opportunity to claim a priority of right to appropriate water for various beneficial uses previously initiated on federal reservations for appropriations made prior to July 3, 1978. (Ca. Water C.  1227 et seq.) Said priority could not, however, impair any existing water right. (Ca. Water C.  1227.) Prior existing water rights cannot therefore be abrogated by the Proposed Rules. After October 21, 1976, miners, (in the State of California), acquired water rights through the State of California. (See Ca. Water C.  1228.2.) The other 11 western states enacted similar code. Permits and licenses for water usage issued by the State of California, prior to July 1, 1984, pre-empt any priority water right that may have been granted to the Forest Service. (Ca. Water C.  1227.2.) Prior existing water rights cannot therefore be abrogated by the Proposed Rules. This is delineated more fully herein. Proposed Rules Impermissibly Abrogates Easements and Rights-of-Way This is a Public Comment. The Proposed Rules proclaim to preempt states' laws and regulations. As such, the Proposed Rules, effectually, revoke all prior-existing rights-of-way and require all miners to acquire new rights-of-way from FS to access their claims. Hence, the Proposed Rules would affect, substantially change, prior-existing rights-of-way. Mining claimants enjoy a statutory right to access their claims, and the workings on their claims. (16 USCA  524; 30 USCA  26; and, 30 USCA  51.) Such rights-of-way are regulated (granted, modified or revoked) by the Secretary of the Interior and the respective States; and, as such, not by the Secretary of Agriculture or Forest Service. (16 USCA  524.) The Secretary of Agriculture does not therefore have the jurisdiction to grant, to modify, or to revoke rights-of-way. As the Proposed Rules are tantamount to a revocation of prior existing rights-of-way, and FS does not have the jurisdiction to make such a revocation, the Proposed Rules are therefore unlawful. For our claimants who's records are not lost or destroyed and, who's facilities and improvements are not specifically authorized by permit, or written modifications thereto, two possible obtains may be plead, (affirmatively as a defense or in a quiet title action); that, they have an implied easement and/or an easement of necessity. A third obtain may also be available; pleading easement by plat or map. We will not pass on, argue, whether our claims have easements by implication, by necessity and/or, by plat or map. We assume they have, at least, one of the three. Both easements by implication and easements of necessity are appurtenant easements; they benefit a particular parcel of land and cannot be conveyed apart from the dominant tenement. (U.S. v. Balliet (W.D. Ark. 2001) 133 F.Supp.2d 1120) While an implied easement can exist if the United States intended to grant an easement for access when it granted title, (or use), to the property, the general rule is that nothing passes by implication in a public grant. (Id.) Here, however, the United States intended to grant an easement to miners to access their claims, and to access their workings thereupon. (16 USCA  524; 30 USCA  26; and, 30 USCA  51.) Three prerequisites of an easement of necessity are: (1) the titles to the two tracts in question must have been held by one person; (2) the unity of title must have been severed by a conveyance of one of the tracts; and (3) the easement must be necessary in order for the owner of the dominant tenement to use his land with the necessity existing both at the time of the severance of title and the time of exercise of the easement. (U.S. v. Balliet (W.D. Ark. 2001) 133 F.Supp.2d 1120) An easement by implication rests on the theory that access was in existence at the time of the severance of a single parcel of land. (Id.) For an easement by implication, the plaintiff must prove the same three elements necessary for an easement by necessity, plus a fourth element: that he or she imposed a permanent and obvious servitude on the part of his or her property he or she conveyed in favor of the part he or she retained, and at the time of severance that servitude was in use. (Id.) In California, like each of the other 11 western states, one who grants a thing is presumed to grant also whatever is essential to its use. (Cal. Civil C.  3522.) And, stipulations which are necessary to make a contract reasonable, or conformable to usage, are implied, in respect to matters concerning which the contract manifests no contrary intention. (Cal. Civil C.  1655.) And, the law has been obeyed. (Cal. Civil C.  3548.) And, that which ought to have been done is to be regarded as done, in favor of him to who, and against him from whom performance is due. (Cal. Civil C.  3529.) For our claimants who's records were either lost or destroyed, other than those mentioned above, another option is available. These parties can re-build the record with circumstantial evidence. There are numerous examples of the kinds of circumstantial evidence which would support the existence of prior authorization of existing easements and rights-of-way. They will not be listed here. This is delineated more fully herein. Proposed Rules Violate Coastal Zone Management Act, (CZMA) This is a Public Comment. The Proposed Rules applies to all National Forests, including all those within coastal zone areas. The Proposed Rules would significantly affect said coastal zone areas. The Coastal Zone Management Act, 16 U.S.C. 1451 et seq., requires that all Federal activities in coastal areas be consistent with approved State Coastal Zone Management Programs, to the maximum extent possible. (40 CFR  6.302(d).) If the action significantly affects the coastal zone area and the State has an approved coastal zone management program, a consistency determination shall be sought in accordance with procedures promulgated by the Office of Coastal Zone Management in 15 CFR  930. (40 CFR  6.302(d).) Here, the Proposed Rules are and will continue to significantly affect all the subject coastal zone areas. Moreover, all of the subject coastal zone areas are within State approved coastal zone management programs. Hence, in its promulgation of the Proposed Rules, FS failed to prepare the required consistency determination in concert (by consultation) with the Office of Coastal Zone Management. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. Proposed Rules Violates Fish and Wildlife Coordination Act, (F&WCA) This is a Public Comment. The Proposed Rules allege to preempt states codes and regulations. Hence, they proclaim to preempt state control of waters of each of the 11 western states. As such, in promulgation of the Proposed Rules, FS was obligated to comply with the F&WCA. The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., requires Federal agencies involved in actions that will result in the control or structural modification of any natural stream or body of water for any purpose, to take action to protect the fish and wildlife resources which may be affected by the action. The responsible official shall consult with the Fish and Wildlife Service and the appropriate State agency to ascertain the means and measures necessary to mitigate, prevent and compensate for project-related losses of wildlife resources and to enhance the resources. Reports and recommendations of wildlife agencies should be incorporated into the environmental assessment or environmental impact statement. Consultation procedures are detailed in 16 U.S.C. 662. (40 CFR  6.302(g).) Here, FS failed in all of these said obligations. As was delineated herein, this failure has harmed us and the other small miners. This is also a violation of 5 USCA  801(a)(1)(B)(iii and iv).) This is delineated more fully herein. FS does not have the Power to Issue a Preliminary Injunction or to Forego Due Process This is a Public Comment. In accordance with proposed subsection rule 228.10(c)(2), and other such proposed rules in these Proposed Rules, FS can, on the mere allegation of any Forest Service Official, no matter what their qualifications to do so are, no matter what their rank is, unelected as they are, shut down an ongoing legitimately approved mining operation; approved by FS with either, a notice of intent, bonded notice, or a plan of operations, until the "surface use determination" is complete, whether or not the operator is guilty of any violation. FS does not have the authority to do this under the Constitution; the foremost clause being the right to a fair trial. They cannot act as judge and jury. Only an elected official can enjoin, upon a mere allegation. Even then, the process to obtain a preliminary injunction is arduous, to say the least. FS does not even provide for a hearing to obtain a preliminary injunction. They simply assume the power to do that, issue a preliminary injunction; and, without any hearing. They do not have the power to do either. Only the courts do. By these Proposed Rules, FS not only wishes to deprive would be miners of their Constitution right to a fair trial but their Constitutional right to due process, as well. They, USDA and FS personnel, would not like it if these same Proposed Rules were applied to them, their property, or their families. Not one of them would, upon deposition, say that they would. Thus, FS knew, when they proposed these Proposed Rules, that they would be enforced unequally; against others but not against them or theirs. This is a violation of our Constitutional right to equal protection. As was explained previously, under these Proposed Rules, no small miner could invest his time and make a go of it. That means that only monetary investors could possibly mine. No investor would invest money in a mining operation that could be shut down, under these circumstances. No investor would invest in a mining operation where they could be stuck with having to pay unemployment for hundreds of employees under these circumstances. No investor would bond a mining operation under these circumstances. The risk is too great. Because no investor would invest in a mining operation, under these Proposed Rules, FS has clearly precluded not only any small mining operation but any mining operation, no matter what size. This wouldn't be fair to the employees of mine operators either. On the issue of employees, not many people would want to work for a company that may have to lay them off, without prior notice or cause. The employer (mine operator) would have to give notice of this possibility before employing anyone. A mine operator would be hard pressed to find anyone that would be willing to work for them under these circumstances. Even if an investor did assume the outrageously disproportionate risk of investing in a mining operation, under these Proposed Rules, they could not find anyone, or enough people, to work their mine. Because no investor could find employees, or enough of them, to work under these Proposed Rules, FS has clearly precluded not only any small mining operation but any mining operation, no matter what size. This is delineated more fully herein. Dated: May 19, 2008 Respectfully submitted, WALTER H. EASON, JR. Commentator, as an Individual; and, as President of Equal Access to Justice, Inc. EXHIBIT 1: (Dee Stapp's Complaint) INTRODUCTION 1. This is an action for declaratory and injunctive relief seeking review of administrative rule makings. Plaintiff, Delores M. Stapp, ("Stapp"), prays that this Court review, declare invalid, enjoin implementation of, and vacate regulations promulgated by Defendants on November 21, 2000 (65 Fed. Reg. 69,998-70,132) and on October 30, 2001 (66 Fed. Reg. 54834) purportedly under the Federal Land Policy and Management Act of 1976 ("FLPMA"), 43 U.S.C.  1701 et seq. The challenged regulations, issued by Defendant Bureau of Land Management ("BLM") and hereinafter referred to as the "new 3809 regulations, as amended" substantially and unlawfully alter the existing regulatory regime at 43 C.F.R. Subpart 3809 governing hardrock and placer (i.e., gold, silver, copper, platinum, zinc, manganese, molybdenum, and other metals) mining operations on public lands administered by BLM. The unlawful regulatory regime that will result if BLM is permitted to enforce the new 3809 regulations, as amended, arbitrarily and unnecessarily threatens the survival of the domestic hardrock and placer mining industry, regional rural economies, communities, families, and individuals dependant upon the responsible mining activities on the public lands long endorsed by Congress, and the Nation's supply of critical strategic minerals and materials and the infrastructure that supports their development. 2. The new 3809 regulations, as amended, exceed Defendants' statutory authority and are arbitrary, capricious, and inconsistent with existing laws, including FLPMA and the Mining Law of May 10, 1872, as amended ("General Mining Law") (30 U.S.C.  22 et seq.), and were promulgated in violation of the Administrative Procedure Act ("APA") (5 U.S.C.  551, et seq.), the Regulatory Flexibility Act ("RFA") (5 U.S.C.  601-611), the National Environmental Policy Act ("NEPA") (42 U.S.C.  4321, et seq.), Pub. L. No. 105-83,  339 (1997), Pub. L. No. 106-113,  357 (1999), and Pub. L. No. 106-291,  156 (2000). For these reasons, the new 3809 regulations, as amended, must be set aside. JURISDICTION AND VENUE 3. This Court has jurisdiction under 28 U.S.C.  1331 (federal question), 2201 (declaratory relief), and 2202 (further relief), and under the judicial review provisions of the APA, 5 U.S.C.  701-06, and the RFA, 5 U.S.C.  611. An actual controversy exists between the parties hereto within the jurisdiction of this Court. Defendants have acted or failed to act in an official capacity and under legal authority within the meaning of 5 U.S.C.  702. 4. Venue is proper in this Court under 28 U.S.C.  1391(e) and 5 U.S.C.  703. This is the district in which Defendants reside, the district in which a substantial part of the challenged actions occurred. PARTIES 5. Plaintiff Stapp is an individual small miner with a mining claim, (the "Lorimar 2"), situated on BLM land. (CAMC # 277516) Stapp explores for and produces placer minerals on Federal public lands pursuant to the General Mining Law and FLPMA, and is severely harmed by the new 3809 regulations, as amended, . 6. Stapp, through her mining corp., PLP, participated in the administrative rulemaking proceedings that culminated in the promulgation of the regulations challenged in this case. 7. The injuries to Plaintiff can be redressed by an order from this Court granting the requested declaratory and injunctive relief. 8. Defendant Gail Norton is the Secretary of the United States Department of the Interior ("Secretary") and is sued in her official capacity. FLPMA imposes on the Secretary the duty to promulgate rules and regulations to carry out the purposes of FLPMA, including the duty to manage the public lands under the principles of multiple use and sustained yield and, with respect to mining activities, to prevent "unnecessary or undue degradation" of the public lands. 9. Defendant U.S. Department of the Interior ("Department") is an agency of the United States charged with administering FLPMA and other applicable laws. 10. Defendant Bureau of Land Management ("BLM") is an agency of the Department, and through which the Secretary acts in administering FLPMA. LEGAL AND FACTUAL BACKGROUND The Federal Land Policy and Management Act 11. Ever since the passage of the General Mining Law, public lands administered by BLM generally have been "free and open" to citizens to explore for minerals, locate mining claims, and obtain the exclusive right to extract valuable minerals from the land. See 30 U.S.C.  22. Although amended by Congress on several occasions, this longstanding federal statute designed to encourage the development of minerals on public land was reaffirmed in 1976 when Congress enacted FLPMA and declared that it is the policy of the United States that; "the public lands be managed in a manner which recognizes the Nation's need for domestic sources of minerals . . . from the public lands including implementation of the Mining and Minerals Policy Act of 1970 (84 Stat. 1876, 30 U.S.C. 21a) as it pertains to the public lands . . . ." 43 U.S.C.  1701(a)(12). 12. The Mining and Minerals Policy Act of 1970 provides, in part, that the; "Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, [and] (2) the orderly and economic development of domestic mineral resources . . . ." 30 U.S.C.  21a. The 1970 Act provides further that "[i]t shall be the responsibility of the Secretary of the Interior to carry out this policy when exercising his authority under such programs as may be authorized by law other than this section." Id. 13. With regard to public lands subject to claims under the General Mining Law, Congress in section 302(b) of FLPMA stated that no provision of FLPMA "shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act," 43 U.S.C.  1732(b) This edict is subject to a few express exceptions including that, "[i]n managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." Id. 14. Hardrock and placer mineral resources are most commonly found in the western United States where approximately 260 million acres of public lands governed by FLPMA and the General Mining Law are located. 15. Section 303(b) of FLPMA provides that any use of public lands in violation of the Secretary's regulations under FLPMA is subject, at the request of the Secretary, to a civil enforcement action seeking an injunction brought by the Attorney General. 43 U.S.C.  1733(b). There is no other civil enforcement authority delegated to the Secretary in FLPMA (or any other applicable law). The 1980 43 C.F.R. Subpart 3809 Rules 16. At the conclusion of a rulemaking which began contemporaneously with the enactment of FLPMA, in 1980, BLM issued regulations under FLPMA at 43 C.F.R. Subpart 3809 ("the existing 3809 rules") with the purpose to "establish procedures to prevent unnecessary or undue degradation of Federal lands which may result from operations authorized by the mining laws." 43 C.F.R.  3809.0-1. Congress enacted FLPMA on October 21, 1976. BLM proposed the rulemaking which led to the rules on December 6, 1976. 41 Fed. Reg. 53,428. BLM promulgated the final regulations on November 26, 1980. 45 Fed. Reg. 78,902. 17. The rules defined "unnecessary or undue degradation" as follows: Unnecessary or undue degradation means surface disturbances greater than what would normally result when an activity is being accomplished by a prudent operator in usual, customary, and proficient operations of similar character and taking into consideration the effects of operations on other resources and land uses, including those resources and uses outside the area of operations. Failure to initiate and complete reasonable mitigation measures, including reclamation of disturbed areas or creation of a nuisance may constitute unnecessary or undue degradation. Failure to comply with applicable environmental protection statutes and regulations thereunder will constitute unnecessary or undue degradation. Where specific statutory authority requires the attainment of a stated level of protection or reclamation, such as in the California Desert Conservation Area, Wild and Scenic Rivers, areas designated as part of the National Wilderness System administered by the Bureau of Land Management and other such areas, that level of protection shall be met. 43 C.F.R.  3809.0-5(k). 18. The rules further stated that it is the policy of the Department of the Interior to encourage the development of Federal mineral resources and reclamation of disturbed lands. Under the mining laws a person has a statutory right, consistent with Departmental regulations, to go upon the open (unappropriated and unreserved) Federal lands for the purpose of mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto. This statutory right carries with it the responsibility to assure that operations include adequate and responsible measures to prevent unnecessary or undue degradation of the Federal lands and to provide for reasonable reclamation. 43 C.F.R.  3809.0-6. 19. The existing 3809 rules further provided that BLM-administered lands used for hardrock and placer mining activities were subject to requirements imposed by federal and state environmental laws, including, inter alia, the Clean Water Act, 33 U.S.C.  1251 et seq., Clean Air Act, 42 U.S.C.  7401 et seq., Endangered Species Act, 16 U.S.C.  1531 et seq., National Historic Preservation Act, 16 U.S.C.  470f, and the National Environmental Policy Act, 42 U.S.C.  4321 et seq. 20. The existing 3809 rules also required BLM to conduct a review of state laws and regulations governing hardrock mining on public lands: After the publication date of these regulations, the Director [of BLM] shall conduct a review of State laws and regulations in effect or due to come into effect, relating to unnecessary or undue degradation of lands disturbed by exploration for, or mining of, minerals locatable under the mining laws. 43 C.F.R.  3809.3-1(b). BLM has never conducted the required study. Defendants' Attempts at Legislative Mining Law "Reform" 21. The Defendants' efforts to revise the legal and regulatory scheme governing hardrock mining on public lands began shortly after Secretary Babbitt's appointment as Secretary of the Interior in 1993. The Secretary testified before Congress and made clear his strong preference for fundamental changes in the General Mining Law: I find it astounding that the basic principles of the Mining Law have remained largely intact for 121 years, and still govern hard rock mining and exploration on millions of acres of federal land. I believe that this law no longer serves the public interest and that we, as stewards of our federal lands, must act responsibly and definitively to accomplish reform. Hearing on S. 775 Before Senate Subcomm. On Mineral Resources Development and Production of the Comm. On Energy & Natural Resources, 103rd Cong., 1st Sess. at 43 (1993). Among other things, Secretary Babbitt urged Congress to change the law to create "a process . . . for determining that mining activity does not occur on lands that are unsuitable for it that have higher values for other uses." Id. 22. Both the Senate and the House of Representatives considered such fundamental changes. Indeed, on November 16, 1993, the House of Representatives passed H.R. 322, a comprehensive mining law reform bill endorsed by Secretary Babbitt. Ultimately, however, Secretary Babbitt's view of what "serves the public interest" was rejected by Congress as mining law "reform" legislation reached an impasse by 1994. Mining law "reform" legislation has been introduced since, but the Congress has not passed any of the bills. Development of the New 3809 Rules Circumventing Congress 23. The Secretary did not abandon his efforts to change the hardrock and placer mining legal regime, despite his lack of legislative success. Instead, on January 6, 1997, the Secretary issued a Memorandum to the Assistant Secretary for Land and Minerals and to the Acting Director of BLM, stating that it was "plainly no longer in the public interest to wait for Congress to enact legislation that corrects the . . . shortcomings of the 3809 regulations." Secretarial Memorandum at 2 (emphasis added). Accordingly, the Secretary "direct[ed]" them to "moderniz[e]" the regulations by preparing and publishing proposed regulations . . . for public comment as soon as practicable." Id. (emphasis added). 24. Having made the fundamental decisions that shortcomings existed and that revisions were necessary, the Secretary then outlined the substance that should be included in the rulemaking by stating: To expedite this [rulemaking] process . . . I believe the following regulatory revisions should be proposed for public comment, along with others you deem appropriate: 1. The definition of unnecessary and undue degradation' should be rewritten to more clearly require the use of best available technology and practices' or other similar technology-based standards appropriate in the conduct of hardrock mining. 2. Performance standards should be developed for the conduct of hardrock mining and reclamation, addressing such areas as revegetation, contouring, hydrology, etc. . . . Id. at 3. (emphasis added). 25. On April 4, 1997, BLM published a notice of intent to propose revisions to the regulations and also published a scoping notice for a draft Environmental Impact Statement ("EIS") that would analyze the proposed revisions. 62 Fed. Reg. 16,177. This scoping notice is in contravention of the regulations of the Council on Environmental Quality which codify the need to "ensure that environmental information is available to public officials and citizens before decisions are made and before actions are taken." 40 C.F.R.  1500.1(b) (emphasis added). Development of the New 3809 Regulations Congress and the Western Governors Respond 26. In response to the BLM notice of intent, the Western Governors' Association ("WGA"), on June 24, 1997, adopted a policy resolution declaring that: Revisions to the 3809 regulations may not be necessary. More consideration should be given to compliance with existing regulations. States have filled and should continue to fill any deficiencies identified in the statutory and regulatory framework and its enforcement. Establishing burdensome or duplicative new BLM regulatory requirements for mining is not in the best interest of states or the nation. WGA, Resolution 97-006, "Regulation of Mining," June 24, 1997. 27. Congress responded with support for the Western Governors by enacting a provision in the Fiscal Year 1998 Interior Appropriations Act requiring the Secretary to consult with the Western Governors before formally proposing any changes to the regulations. Specifically, section 339 of the 1998 Appropriations Act prohibited the Secretary from any further work "to develop a rulemaking proposal to amend or replace . . ." the existing 3809 rules or to "prepare a draft . . . [EIS] on such proposal . . .," until the Secretary: certifie[d] to the Committees on Energy and Natural Resources and Appropriations of the United States Senate and the Committees on Resources and Appropriations of the United States House of Representatives that the Department of the Interior has consulted with the governor, or his/her representative, from each state that contains public lands open to location under the General Mining Laws. Pub. L. No. 105-83,  339, 111 Stat. 1543, 1603 (Nov. 14, 1997). 28. Defendants did not change course despite the 1998 Appropriations Act impediment to proceeding with the new 3809 regulations, as amended, that would achieve their objective of dramatically altering the hardrock mining regulatory scheme. Engaging in a clear violation of section 339, on November 17, 1997, only three days after the 1998 Appropriations Act was signed into law, and without any further contact between the Defendants and the Western Governors, BLM Director Pat Shea sent letters to the leaders of the relevant Congressional committees certifying that BLM had "consulted" with the Western Governors and that the rulemaking would proceed forthwith. 29. The WGA disputed the BLM Director's claim, and informed BLM on February 5, 1998, that "we feel that the consultation has yet to truly begin." 30. Then, on April 28, 1998, Nevada Governor Bob Miller testified at a U.S. Senate hearing, expressing disagreement with BLM and the Secretary over the need for revisions to the regulations and suggested that Congress intervene and assist "with this impasse by requesting an independent evaluation of the 3809 regulations by a third party such as the National Academy of Sciences." Hearing on S.326, S.327, and S.1102 Before the Subcomm. on Forests and Public Land Management of the Committee on Energy and Natural Resources, at 7 (1998). 31. Seeing the wisdom of that suggestion, and, to determine whether the laws or regulations needed to be changed, in the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Congress ordered the preparation of a National Research Council ("NRC") (the principal operating agency of the National Academy of Sciences) report on hardrock mining on federal lands. Specifically, Congress required: [A] detailed, comprehensive study of the environmental and reclamation requirements relating to mining of locatable minerals on federal lands and the adequacy of those requirements to prevent unnecessary or undue degradation of Federal lands in each state in which such mining occurs. Pub. L. No. 105-277,  120, 112 Stat. 2681-257 (Oct. 21, 1998). 32. The NRC study commenced in January 1999. Alarmed by reports that Defendants were proceeding with their plans to change the regulations without waiting for the release of the study, sixteen U.S. Senators from the western states sent a letter to the Secretary on December 15, 1998, requesting that publication of the proposed revisions to the regulations be delayed until after the NRC report was completed. The WGA made the same request to the Secretary on January 11, 1999. 33. Despite the pending NRC report and the requests of the WGA and U.S. Senators, Defendants published on February 9, 1999, long before the completion of the NRC report, a notice of proposed rulemaking which substantially revised the regulations (consistent with the Secretary's January 6, 1997 directive), and announced that the public comment period would close on May 10, 1999. 64 Fed. Reg. 6422 (1999). 34. On March 21, 1999, the WGA informed the Secretary that "[w]ithout an objective analysis of any inadequacies in the current 3809 regulations, from either BLM or NAS [National Academy of Sciences], it is impossible . . . for us to comment meaningfully on BLM's proposed 3809 rule-making." Defendants nonetheless closed the comment period on the proposed rule and the Draft EIS on May 10, 1999, well before completion of the NRC report. Plaintiff reiterated the same through comment letters. 35. Congress reacted promptly. On May 21, 1999, Congress enacted the 1999 Emergency Supplemental Appropriations Act ("ESAA"), including section 3002, ordering that neither the proposed new 3809 regulations, as amended, nor the Draft EIS be completed until the Secretary had reopened the public comment on the proposed rule for a period of at least 120 days following publication of the NRC report. Pub. L. No. 106-31,  3002, 113 Stat. 89 (1999). Development of the New 3809 Regulations - Objections To The Projected Impact of the Proposed Regulations 36. In May of 1999, the hardrock mining industry and Plaintiff submitted extensive comments on the proposed new 3809 regulations, and objected to the sweeping alterations of the existing regulatory scheme as embodied in the proposal, illustrating the dire consequences the new 3809 regulations, would have on the western hardrock mining industry. 37. Notably, a joint study submitted to BLM by economists from the University of Nevada and the University of Chicago estimated that the increase in exploration costs predicted by BLM would result in greatly decreased future mining production (e.g., gold and silver production and employment would decrease by 20%). John L. Dobra & Michael K. Evans, Economic Analysis of Proposed DOI Rulemaking Subpart 3809 Surface Management, May 1999, at 3. The same joint study concluded that the proposed new 3809 regulations, as amended, would cause a loss in employment in the mining industry of approximately 11,150 jobs, and federal revenues from hardrock mines would decrease by $335 million. Id. Even before the proposed new 3809 regulations, were published, dramatic declines in domestic hardrock exploration and development were already well underway, largely as a result of an increasingly onerous regulatory regime in the United States, id. at 13-14, 39-47, a trend that the proposed new 3809 regulations, would exacerbate. 38. The hardrock mining industry explained in numerous extensive comments that it was already subject to a lengthy, complicated, comprehensive, and expensive regulatory scheme prior to the issuance of the new 3809 regulations, which would add unnecessary requirements to this process. The industry commented on the significant adverse economic impact the proposed new 3809 regulations, would have on its business. For example, according to BLM's own initial estimates in its Initial Regulatory Flexibility Analysis ("IRFA"), exploration costs could be increased by as much as 38%. IRFA at 100. BLM also estimated that the costs of production could increase as much as 6.7% to 8.9% for mining operations. Id. In a conclusion that the Small Business Administration ("SBA") called "beyond comprehension," BLM somehow concluded in its IRFA that such significant cost increases did not constitute a significant economic impact on a substantial number of small entities. Comment Letter from J. W. Glover and J. A. Smith to BLM, May 10, 1999, at 7. In May 10, 1999 comments on BLM's IRFA, the SBA explained that a study by its economist David Schnare, Ph.D., found that Internal Revenue Service data "demonstrates that the regulated [hardrock mining] industries operate at the edge of profitability and that the rule would oust small businesses from the industry." Id. at 6 & Attachment 1. This SBA finding is of particular significance given the Defendants' acknowledgement in the preamble to the proposed rule that "virtually all businesses currently engaged in mining on public lands" are small businesses, 64 Fed. Reg. at 6449, and, in the preamble to the final rule that "the universe of potentially affected [small] entities would essentially be all existing notices and plans of operations and all new notices and plans." 65 Fed. Reg. at 70,105. (Note: Plaintiff disputes this definition and argues that small miners also include all unpatented and patented mine, placer and lode, claimants) 39. The hardrock mining industry and Plaintiff submitted voluminous comments and economic data on the already difficult business environment imposed by the existing regulatory structure, and on the inevitable and unnecessary destructive effect the new proposed 3809 Regulations would have on the western hardrock and placer mining industry. Defendants largely ignored these comments from the stakeholders. Yet, many of those same concerns were buttressed by the conclusions on the adequacy of existing regulations from an objective, unbiased third party, NRC. Development of the New 3809 Regulations the NRC Report 40. On September 29, 1999, the NRC released its report, "Hardrock Mining on Federal Lands" ("NRC Report"). The NRC Report considered the adequacy of statutes and regulations to prevent unnecessary or undue degradation of the public lands from hardrock mining activities, and it presented conclusions and recommendations "for the coordination of federal and state regulations to ensure environmental protection, increase efficiency, avoid duplication and delay, and identify the most cost-effective manner for implementation." NRC Report at 91. To comply with Congress' desire for an objective, non-partisan study, the NRC convened a blue ribbon panel of experts and "conducted an evidence-based analysis, taking account of scientific and technical knowledge." NRC Report at 12. The NRC study committee fully understood the policy debate facing government and the mining industry in the modern era: The abundant igneous rocks and associated hydrothermal systems and the mountainous or sparsely vegetated terrain make the West the location of most hardrock mines in the United States. Some of these same areas also are valued for aesthetic and cultural reasons, which creates potential conflict among uses of the land. While society requires a healthy environment, it also requires sources of materials, many of which can be supplied only by mining. NRC Report at 23. 41. The NRC Report described its chapter of "Conclusions and Recommendations" to be a summary of; "the Committee's views of the actions needed to coordinate federal and state mine reclamation, operations, and permitting requirements and programs. . . . Adopting these recommendations will improve environmental protection and reclamation of hardrock mining on federal lands, as well as the efficiency of the permitting process." NRC Report at 123. 42. With regard to the efficacy of the existing 3809 regulations, the NRC Report's paramount conclusions were clear: The overall structure of the federal and state laws and regulations that provide mining-related environmental protection is complicated, but generally effective. The structure reflects regulatory responses to geographical differences in mineral distribution among the states, as well as the diversity of site-specific environmental conditions. It also reflects the unique and overlapping federal and state responsibilities. . . . Improvements in the implementation of existing regulations present the greatest opportunity for improving environmental protection and the efficiency of the regulatory process. NRC Report at 5-6 (emphasis added). To implement its overarching conclusions, the NRC Report listed sixteen detailed recommendations. 43. The NRC Report also pointedly criticized the Defendants for failing to manage competently and effectively implement the existing rules governing mining on public lands: The Committee was consistently frustrated by the inability of federal land management agencies to provide timely, accurate information regarding how they manage their lands and the status of mining projects under their jurisdiction. . . . Information about current mining activities was even scarcer. The lack of information appeared to be greatest among highly placed officials who have the greatest need to know. NRC Report at 75 (emphasis added). 44. On October 26, 1999, as directed by section 3002 of the ESAA, BLM reopened the comment period on the proposed new 3809 regulations, as amended, and allowed an additional 120 days for public comment, setting the close of the comment period for February 23, 2000. 64 Fed. Reg. 57,613. BLM's compliance was, at best, grudging: in requesting public comment, BLM identified only six of the sixteen enumerated NRC Report recommendations that identified limited "gaps in the existing regulations," and asked for specific comments only on those recommendations. 64 Fed. Reg. 57,615. 45. Following BLM's limited consideration of the NRC Report's recommendations, Congress once again took legislative action to bar unwarranted revisions to the existing 3809 rules and compel the Defendants to heed the NRC Report's conclusions. Thus, section 357 of the 2000 Consolidated Appropriations Act provided: None of the funds in this Act or any other Act shall be used by the Secretary of the Interior to promulgate final rules to revise 43 C.F.R. Subpart 3809, except that the Secretary, following the public comment period required by section 3002 of Public Law 106-31, may issue final rules to amend 43 C.F.R. Subpart 3809 which are not inconsistent with the recommendations contained in the National Research Council report entitled "Hardrock Mining on Federal Lands" so long as these regulations are also not inconsistent with existing statutory authorities. Nothing in this section shall be construed to expand the existing statutory authority of the Secretary. Pub. L. No. 106-113,  357, 113 Stat. 1501 (Nov. 29, 1999) (emphasis added). 46. Despite this Congressional directive in section 357, Defendants continued to pursue the expansive revisions they sought in the 3809 rulemaking. In an internal memorandum dated December 8, 1999, Interior Department Solicitor John Leshy interpreted section 357 of the 2000 Appropriations Act to achieve the Department's pre-determined policy result. The memorandum instructed BLM that: [F]inal [3809] rules addressing subjects which lie outside the specific recommendations of the NRC Report would not be affected by section 357 . . . . Rules addressing issues that are not directly covered by the NRC's recommendations would not run afoul of this limitation, since there would be no question of their inconsistency with those recommendations. Solicitor's Memorandum at 2. 47. The WGA continued to oppose the proposed new 3809 regulations, as amended, . On June 16, 2000, the WGA adopted Policy Resolution 00-13 on the "Regulation of Mining," which recommended that "BLM rethink the . . . [proposed] rule in light of the [NRC] report. Given the information in the report, much of the proposed rule is unnecessary, unwarranted, or unwise." 48. The SBA also repeated its findings of noncompliance with the RFA, particularly in light of the NRC Report, when BLM reopened the comment period in October, 1999. In February 23, 2000 comments of the SBA, it concluded that "[n]othing in the supplemental proposed rulemaking changes or mitigates the inadequacies of the February 1999 proposal." Letter from J. W. Glover and J. A. Smith to BLM, Feb. 23, 2000, at 6. The SBA further concluded that, if the supplemental rulemaking was "an effort to proceed directly to a final rule, even though the [NRC Report] material modifies the proposal, then BLM would be in violation of both the RFA and the APA." Id. The SBA warned BLM that a Final Regulatory Flexibility Analysis ("FRFA") would not cure BLM's noncompliance with the RFA, explaining that "[i]f [BLM] is proceeding to finalize the original rule, it must first do an adequate IRFA, including an analysis of alternatives such as those recommended by NAS," id. at 7. Failure to do so, it explained, "denies the public of its right to be fully informed during the comment period; frustrates BLM's attempt to obtain meaningful comments; and runs the risk that small businesses and BLM will have to spend valuable time and resources litigating this particular matter in the judicial system." Id. 49. In the Fiscal Year 2001 Interior Department Appropriations Act, Congress expressly rejected Solicitor Leshy's interpretation of section 357 and reauthorized the same language from Pub. L. 106-113. See Pub. L. No. 106-291,  156. The Conference Report makes Congress' intent with regard to NRC Report and the new 3809 regulations, as amended, unambiguous: Section 156 allows the Bureau of Land Management to promulgate new hardrock mining regulations that are not inconsistent with the National Research Council Report entitled "Hardrock Mining on Federal Lands." This provision reinstates a requirement that was included in Public Law 106-113. In that Act, Congress authorized changes to the hardrock mining regulations that are "not inconsistent with" the Report. . . . The statutory requirement was based on a consensus reached among Committee Members and the Administration. On December 8, 1999, the Interior Solicitor wrote an opinion concluding that this requirement applies only to a few lines of the Report, and that it imposes no significant restrictions on the Bureau's rulemaking authority. The Committee does not agree with the solicitor's opinion, and does not intend the language in this section to constitute any ratification of or agreement with that opinion. H.R. Rep. No. 106-914 at 154 (Sept. 29, 2000) (emphasis added). The Revised and Final New 3809 Regulations, as Amended Agency Action in Complete Disregard of Legal Authority 50. Undeterred by Congressional prohibitions, and in the face of the continuing objections of the Western Governors and the NRC Report's conclusions, Defendants have recently succeeded in radically altering the law governing hardrock mining on federal land. On November 21, 2000, in the waning days of the Clinton Administration, BLM published the final rule for the revisions to the Subpart 3809 regulations. 64 Fed. Reg. 69,998. The new rules have an effective date of January 20, 2001. These rules, (the "2000 rules"), were, for the most part, and especially the offensive part, re-instituted on December 31, 2001 by amendments, (the "2001 rules"). (66 Fed. Reg. 54834, October 30, 2001) 51. In accordance with Solicitor Leshy's December 8, 1999 opinion, in the preamble to the final 2000 rule, BLM flouts Congress's restriction on its authority and instead adopted the Solicitor's erroneous interpretation of Congress's mandate, rather than accept that BLM is generally prohibited from promulgating any revisions to the existing 3809 regulations except in the narrow sense that it may promulgate limited regulations consistent with the NRC Report. See 65 Fed. Reg. at 69,999-70,000. 52. Despite Congressional mandates to develop only 3809 rules that are consistent with the NRC Report's recommendations and to consult with each of the Western Governors, the Department forged ahead with comprehensive new 3809 regulations, as amended, dramatically broader in scope than the recommendations of the NRC Report, unlawfully empowering BLM to circumvent both FLPMA and the General Mining Law. Specifically, the new 3809 regulations, as amended, substantially redefine "unnecessary or undue degradation" to mean, in part, (1) a failure to comply with the new broad and complex performance standards, or, through a novel provision of the new 3809 regulations, as amended, not included for public comment in the proposed rule as required by the APA, (2) an activity that will result in "substantial irreparable harm" to a "significant" scientific, cultural or environmental resource that cannot be "effectively mitigated," notwithstanding the use of best available mine reclamation practices. See 65 Fed. Reg. at 70,015-70,018, 70,115. This unlawful measure would effectively create a new "mine veto" power in BLM, with far-reaching effects. In fact, the October 2000 Final EIS ("FEIS") admits that, under this new veto power, plans of operations may be denied on a widespread basis, creating enormous uncertainty about exploration and development investments: [agency] concerns about Native American religious and cultural issues may mean that the [substantial irreparable harm] provision may be extensively applie[d] as it relates to those concerns. Thus, there is [a] great amount of uncertainty associated with the substantial irreparable harm standard. FEIS at 287, vol. 1 (Oct., 2000). That uncertainty renders any investment in mineral exploration or mine development extremely risky: before a plan of operations is even submitted, at which point BLM would apply the "substantial irreparable harm" provision, substantial costs must be incurred. The risk that such investments could be entirely lost by the denial of a plan of operations under the new 3809 regulations, as amended, will have significant and immediate adverse effects on the mining industry. 53. The new 3809 regulations, as amended, also broadly require mine operators to "take mitigation measures specified by BLM to protect public lands." 65 Fed. Reg. at 70,122. The new 3809 regulations, as amended, then grant BLM unconstrained authority over operators by defining "mitigation" as including "avoiding the impact altogether by not taking certain action or part of an action." Id. at 70,114. 54. The new 3809 regulations, as amended, also impose broad, new general performance standards upon mining operations that require, inter alia, compliance with BLM land-use plans and compliance with such mitigation measures as may be specified by BLM. See 65 Fed. Reg. at 70,122. 55. The new 3809 regulations, as amended, also impose new obligations to comply with various new environmental performance standards, which add duplicative requirements for wetlands and riparian areas, and for the first time regulate matters traditionally within the province of the western states such as water quantity use limitation and ground water quality protections. 65 Fed. Reg. at 70,122. In addition, the new environmental and operational performance standards impose mandatory and burdensome requirements covering a host of other subjects including but not limited to: requirements to revegetate mine sites with native plant species; requirements to "rehabilitate" fish and wildlife habitat; new standards for waste rock tailings and ore leaching facilities. Id. at 70,122-70,123. 56. The newly-mandated environmental performance standards also include an entirely new regulatory process for addressing "cave resources" and "historic" resources that may be encountered by both underground and surface mining operations. Under the new 3809 regulations, as amended, , mine operators with approved operating plans would have to "immediately bring to BLM's attention any previously unidentified historic, archaeologic, cave-related, or scientifically important paleontologic resources that might be altered or destroyed by [the] operations." 65 Fed. Reg. 70123. Operations would be subject to immediate shut-downs for up to "30 calendar days." Id. BLM grants itself the right to impose on mine operators all costs of "investigation, recovery, and preservation of discovered . . . cave-related and paleontological resources . . . ." Id. 57. The new 3809 regulations, as amended, also create, for the first time, a complex enforcement and civil penalty scheme, which provides for suspension orders, revocation of plans of operations, nullification of notice operations, and civil penalties to be imposed on mine operators who violate a plan of operations or a provision of the new 3809 regulations, as amended, , which exceeds Defendants' civil enforcement authority under FLPMA. See 65 Fed. Reg. at 70,129. 58. In particular, the new 3809 regulations, as amended, create a new administrative operations suspension authority, which would be imposed upon a non-complying operator without opportunity for a hearing. See 65 Fed. Reg. at 70,129, 70,130. The new suspension authority faced by mining claimants is contrary to and inconsistent with FLPMA and the General Mining Law, as recognized by Defendants when the existing 3809 rules were first published in 1980: After further examination of the authority of the Secretary to issue these regulations, it has been decided that [BLM] will not unilaterally suspend operations without first obtaining a court order enjoining operations which are determined to be in violation of the regulations. 45 Fed. Reg. 13,958. 59. In addition, the new 3809 regulations, as amended, would also impose a novel scheme of "joint and several liability" upon mining claimants and mine operators, by defining "operator" as "including a parent entity or affiliate who materially participates in [the mine's] management direction or conduct," inter alia. See 65 Fed. Reg. at 70,114-70,117. If upheld, this regulatory scheme would override longstanding common law and state law principles of corporate law. 60. The FEIS and related economic analyses confirm industry's fears on the severe adverse economic impact of the new 3809 regulations, as amended: The value of mine production originating from public lands under the [new 3809 regulations, as amended, ] is estimated to decrease by 10% to 30%, or by $169 million to $484 million across the study area. This level of decreased production would cause the following decreases across the study area: 1. 2,100 to 6,050 jobs. 2. $305 million to $877 million in total industry output. $138 million to $396 million in total personal income (of which $76 million to $218 million is employee compensation). $157 million to $453 million in value-added. Some potential future operations would now be considered subeconomic and therefore would not be developed. Future operations might have shorter mine lives. Or current operations that might expand under these regulations might close sooner than they otherwise would, holding constant other factors such as technology, commodity prices, and political and economic conditions for mining in other countries. A lower level of exploration due to more restrictions would also tend to decrease opportunities for future development, so some deposits would not even be found. FEIS at 288, vol. 1. 61. The impact of the new 3809 regulations, as amended, will be greatest on rural communities because "[m]ining is . . . important to many rural communities and counties in ways that are not captured by looking strictly at its contribution to the state or regional economy." FEIS at 281, vol. 1. Mining in rural western counties "contributes a disproportionate share of local employment and income in relation to the industry's contribution statewide." Id. For example, in Elko and Eureka counties in Nevada, "metal mining contributed $324 million personal income to the area, about 29% of the area's total personal income" in 1998. Id. The FEIS recognized the severe negative impact to Nevada: "In Nevada, impacts to rural communities might be greater than in other states due to the greater estimated decrease in activity (1,050 to 3,200 jobs and $181 to 543 million in industry output)." Id. at 289, vol. 1. The FEIS further confirmed the dramatic impact of mine closures in small communities: In small isolated communities with a high degree of specialization in mining, the impact of a mine shutting down would be significant. The loss of well-paid jobs would result in outmigration, which would lower real estate values, the volume of local business activity, school enrollments, organizational membership, and community leadership. The tax burden might be increased or the level of services reduced for those who remain in the community. Id. at 264, vol. 1. And, as the Final Regulatory Flexibility Analysis ("FRFA") made clear, the adverse impact to the hardrock minerals industry will fall squarely on the shoulders of the small businesses that dominate it. See FRFA at 21. CLAIMS FOR RELIEF COUNT I THE NEW 3809 REGULATIONS, AS AMENDED, ARE NOT CONSISTENT WITH THE RECOMMENDATIONS OF THE NRC REPORT AND VIOLATE EXPRESS CONGRESSIONAL MANDATES 62. Paragraphs 1-61 are incorporated as if fully set forth herein. 63. The vast majority of the provisions in the new 3809 regulations, as amended, introduce new and burdensome regulations that go far beyond the narrow "regulatory gaps" identified in the NRC Report, and therefore those provisions, and the new 3809 regulations, as amended, as a whole, are not consistent with the conclusions and recommendations of the NRC Report, in violation of Section 357 of Pub. L. No. 106-113 (1999) and Section 156 of Pub. L. No. 106-291 (2000). The new 3809 regulations, as amended, are not consistent with Section 357 and Section 156 of the aforementioned appropriations acts, because BLM adopted the comprehensive changes to the existing rules before first addressing the extent to which improved implementation of the existing 3809 regulations and other non-regulatory recommendations made in the NRC Report would achieve BLM's stated goals of improved environmental protection. Thus, BLM unlawfully ignored the paramount conclusion and recommendation of the NRC Report that "[i]mprovements in the implementation of existing regulations present the greatest opportunity for improving environmental protection and the efficiency of the regulatory process." NRC Report at 6. The new 3809 regulations, as amended, provisions which exceed the scope of the NRC Report recommendations include, but are not limited to: (C) The substantially revised regulatory definition of the statutory term "unnecessary or undue degradation," which requires compliance with new and overly broad and burdensome performance standards, and would grant BLM effectively unbridled mine veto authority to deny plans of operations based upon a determination that a proposed mining operation will result in "substantial irreparable harm to significant scientific, cultural, or environmental resource values of the public lands that cannot be effectively mitigated;" (D) The introduction of environmental performance standards, including standards for surface water and groundwater quality and quantity, wetlands, and riparian areas that duplicate or conflict with existing federal and state environmental regulatory schemes; (E) The introduction of water quantity and use performance standards that lack any statutory authority and conflict with the exclusive jurisdiction of State and local governments to regulate the consumptive use of water within their boundaries; (F) The requirement to use "native species" for mine reclamation where "technically feasible," regardless of cost considerations and regardless of whether non-native species would lead to more successful revegetation and reclamation. (G) The requirement to "rehabilitate" fisheries and wildlife habitat affected by mine operations, without consideration of technical and economic feasibility, and without regard to whether the affected species are threatened or endangered. (H) A new liability scheme that lacks any statutory basis and includes the imposition of joint and several liability upon operators, and a revised definition of "operator" to include corporate parents and affiliates, inter alia; and (I) Considerable new and burdensome information gathering and application requirements for proposed mining plans of operations. COUNT II THE NEW 3809 REGULATIONS, AS AMENED, VIOLATE THE CONGRESSIONAL MANDATE TO CONSULT WITH EACH OF THE WESTERN GOVERNORS 64. Paragraphs 1-63 are incorporated as if fully set forth herein. 65. BLM's failure to consult with each of the Western State Governors prior to expending funds in fiscal year 1998 on the development of the proposed new 3809 regulations, as amended, violates the express Congressional command at section 339 of Pub. L. No. 105-83, 111 Stat. 1543, 1602-1603 (1997). 66. BLM improperly certified to Congress that it had complied with the fiscal year 1998 appropriations act requirement to consult with the governor or designated representative from each state with public lands open for location under the General Mining Law. 67. In the three days between the fiscal year 1998 appropriation act's enactment on November 14, 1997 and BLM's certification to Congress that compliance was complete on November 17, 1997, no consultation occurred between BLM and any Western state governor or designated representative regarding the development of the proposed new 3809 regulations, as amended, . 68. At no time during fiscal year 1998 did BLM consult with each governor, or designated representative, from each state with public lands open for location under the General Mining Laws, in accordance with the requirements of the 1998 appropriations act. 69. BLM expended funds throughout fiscal year 1998 developing the proposal for the new 3809 regulations, as amended, , and work on the proposed rule continued uninterrupted throughout fiscal year 1998, in violation of section 339. 70. The new 3809 regulations, as amended, reflect BLM's unlawful failure to consult with the Western State Governors in that they impose requirements that are unnecessary and duplicative and conflict with existing and effective state law requirements. COUNT III NEW 3809 REGULATIONS, AS AMENDED, CONFLICT WITH FLPMA AND VIOLATE APA 71. Paragraphs 1-70 are incorporated as if fully set forth herein. 72. In the new 3809 regulations, as amended, Defendants have violated the notice and comment rulemaking requirements of the APA, 5 U.S.C.  553, as illustrated by the radically new definition of "unnecessary or undue degradation," which would allow BLM to deny plans of operations where "substantial irreparable harm" to "significant" scientific, cultural or environmental resource values will result, notwithstanding the use of best available mitigation practices. Sub-paragraph (4) of the definition ( 3809.5), providing BLM with an effectively unbridled mine veto power over proposed plans of operations, was not included in the proposed rule or the supplemental notice, and is not the logical outgrowth of the proposal. The public has had no opportunity to comment on subparagraph (4), in violation the APA. 73. Defendants' radically new definition of "unnecessary or undue degradation" and the new regulatory decision making process grants BLM veto power over proposed mining plans of operations. This veto power is contrary to FLPMA, the General Mining Law, and BLM's longstanding and contemporaneous interpretations of those laws. As such, the new 3809 regulations, as amended, are arbitrary, capricious and unlawful within the meaning of APA, 5 U.S.C.  706. 74. Defendants have further violated the APA in the new 3809 rulemaking by (a) failing to adequately explain why the longstanding regulations, which contemporaneously implemented FLPMA and defined "unnecessary or undue degradation" in the context of the prudent operator, were changed; and (b) failing to adequately respond to significant public comments on the proposed new 3809 regulations, as amended, , as required by 5 U.S.C.  553. 75. Further, the new 3809 regulations, as amended, are ultra vires, arbitrary, capricious, an abuse of discretion, and inconsistent with FLPMA and other controlling legal authority for the following reasons, inter alia: (A) The new 3809 regulations, as amended, adopt a complex enforcement and civil penalty scheme, including an invalid temporary administrative suspension authority, which exceeds Defendants' civil enforcement authority under FLPMA; (B) The new 3809 regulations, as amended, for the first time subject exploration and mining operations, including post-mining reclamation plans, to FLPMA's land use planning provisions in violation of FLPMA and the General Mining Law, which was not repealed or amended by the land use provisions of FLPMA; (C) The new 3809 regulations, as amended, require operators to comply with standards for the protection of surface water and groundwater quality and quantity, wetlands, and riparian areas in ways that are inconsistent with and duplicative of the requirements imposed by state and other federal laws, regulations, permits, policies, programs, and standards. These new standards are not authorized by FLPMA, and are contrary to Defendants' longstanding construction of their authority under FLPMA. Defendants have not offered a credible explanation why their longstanding construction of their authority under FLPMA was in error. In promulgating these provisions, Defendants acted arbitrarily, capriciously, and in excess of their statutory authority. (D) The new 3809 regulations, as amended, arbitrarily and capriciously require operators to "take mitigation measures specified by BLM to protect public lands . . . ," 65 Fed. Reg. at 70,122, and define "mitigation" to include "avoiding the impact altogether by not taking a certain action or parts of an action." 65 Fed. Reg. at 70,114. These provisions are unlawful because FLPMA does not grant the Defendants the authority to mitigate impacts which are necessary and due in connection with conventional mining and mineral exploration activities. (E) Pursuant to the new 3809 regulations, as amended, , the new application and performance requirements purportedly do not apply to plans of operations approved by BLM before the effective date of the final 2000 rule. That "grandfathering" protection will be illusory in many circumstances, however, in that if the operator, after the effective date of the final 2000 rule, modifies his plan of operations by modifying an existing facility (such as by expanding a waste rock repository, leach pad, or surface impoundment, or expanding the footprint of a mine pit), the new application and performance standards will retroactively apply to the modified "portion" of the facility, unless BLM is satisfied that it is not "practical" to apply the new requirements "for environmental, safety, or technical reasons." See 65 Fed. Reg. at 70,125. Operators must routinely expand or alter the configurations of existing mine facilities at existing operations as existing operations progress due to discovery of previously unknown mineral resources and for unforeseen reasons. The deficiencies in these grandfathering provisions render them arbitrary, capricious, and beyond statutory authority by making the new 3809 regulations, as amended, unlawfully retroactive in many circumstances. (F) The new 3809 regulations, as amended, impose joint and several liability upon operators, which goes far beyond Congress' contemplation in FLPMA, and the new definition of "operator" is wholly inconsistent with longstanding agency interpretation as well as with the well-established judicial rules for piercing the corporate veil; (G) The new 3809 regulations, as amended, impose unreasonably large costs and delays on mine operators and exceed Defendants' existing statutory authorities through the creation of new burdensome environmental and operational performance standards covering, inter alia, revegetation, fish and wildlife habitat rehabilitation, cave resources and historic resources; (H) Through these and other new requirements, like the new definition for "casual use", the new 3809 regulations, as amended, unreasonably and unnecessarily impose burdensome costs and regulatory delays on lawful mining operations, will unlawfully interfere with existing mining operations, and will preclude future exploration and mining operations authorized by existing law; (I) Defendants failed to abide by their own regulations and arbitrarily and capriciously promulgated the new 3809 regulations, as amended, without first conducting the mandatory review of State laws and regulations required by the existing 3809 Regulations, specifically 43 C.F.R.  3809.3-1(b); and (J) Defendants arbitrarily and capriciously promulgated the new 3809 regulations, as amended, before first assessing the extent to which their stated goals of environmental protection would be achieved by improved implementation of the existing 3809 regulations, as recommended by the NRC Report, and by carrying out the many other NRC Report non-regulatory recommendations. COUNT IV THE NEW 3809 REGULATIONS, AS AMENDED, VIOLATE THE NATIONAL ENVIRONMENTAL POLICY ACT PROCEDURAL REQUIREMENTS 76. Paragraphs 1-75 are incorporated as if fully set forth herein. 77. NEPA, 42 U.S.C.  4321-4347, directs federal agencies to prepare a "detailed statement" [an EIS] evaluating the "environmental impact of the proposed [agency] action" and "alternatives to the proposed action" before the agency takes an action "significantly affecting the quality of the human environment." 42 U.S.C.  4332(2)(C). Plaintiff has an informational interest in obtaining accurate information about the environmental and economic impacts of mining and the effects of current and proposed regulations addressing those impacts. 78. The NEPA regulations, issued by the Council of Environmental Quality to govern the implementation of NEPA by all agencies, direct that " [h]uman environment' shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. . . . When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment." 40 C.F.R.  1508.14. 79. In NEPA, Congress also directed federal agencies to "use all practicable means" to accomplish several goals, including to "achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities." 42 U.S.C.  4331(b)(5). In addition, the Congressional declaration of national environmental policy included the goal "to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." 42 U.S.C.  4331(a). 80. In the FEIS on the new 3809 regulations, as amended, Defendants failed to analyze, or objectively and rigorously evaluate, all reasonable alternatives to the rulemaking as required by NEPA, including but not limited to the "no action" alternative and the paramount alternatives recommended by the NRC Report, i.e., (1) improved implementation of the existing 3809 rules, and (2) improved implementation of the existing 3809 rules with a limited, targeted rulemaking aimed at filling the few discrete regulatory gaps identified in the NRC Report. 81. In the FEIS on the new 3809 regulations, as amended, BLM also failed to consider and adequately assess the direct, indirect, and cumulative impacts of all reasonable alternatives and the same cumulative adverse socio-economic impacts from the combined effect of the new 3809 regulations, as amended, in conjunction with other federal regulatory actions finalized and proposed in recent years, which work to increase the cumulative cost of the new 3809 regulations, as amended, while also diminishing their marginal environmental benefit. 82. The FEIS fails to use reliable methodology in violation of NEPA and implementing regulations. 83. Due to BLM's failure to comply with NEPA, the new 3809 regulations, as amended, were unlawfully promulgated and are arbitrary, capricious, and otherwise unlawful within the meaning of the APA, 5 U.S.C.  706. COUNT V THE NEW 3809 REGULATIONS, AS AMENDED, WERE ADOPTED IN VIOLATION OF THE REGULATORY FLEXIBILITY ACT 84. Paragraphs 1-83 are incorporated as if fully set forth herein. 85. The RFA, 5 U.S.C.  601-611, requires administrative agencies to consider the effect of their actions on small entities, including small businesses, small non-profit enterprises, and small governments. The purpose of the RFA is to enhance agency sensitivity to the economic impact of rulemaking on small entities and to ensure that alternative proposals receive serious consideration by agencies. 86. Plaintiff is a small business person as defined in the RFA, 5 U.S.C.  601(3). BLM's conclusion that virtually all members of the hardrock mining industry are small businesses confirms this fact. See 65 Fed. Reg. at 70,105. 87. The RFA was amended by the Small Business Regulatory Enforcement Fairness Act ("SBREFA") in 1996. SBREFA makes judicial review of compliance with the RFA available, 5 U.S.C.  611, largely because of complaints that "agencies have given lip service at best to RFA." See 142 Cong. Rec. S3242, S3245 (daily ed. Mar. 29, 1996). 88. The RFA provides that, whenever an agency expects to propose or to promulgate any rule which is likely to have a significant economic impact on a substantial number of small entities, it shall publish a Regulatory Flexibility Agenda. 5 U.S.C.  602(a). The RFA also provides that, whenever an agency is required by the APA to publish a general notice of proposed rulemaking for a proposed rule, it must prepare and make available for public comment an Initial Regulatory Flexibility Analysis ("IRFA"). 5 U.S.C.  603(a). The agency must then also conduct a Final Regulatory Flexibility Analysis ("FRFA") when it promulgates the final rule. 5 U.S.C.  604. 89. The RFA further requires an analysis of "any . . . significant alternatives" that would accomplish the agency's objective, 5 U.S.C.  603 (emphasis added), and an explanation of "why each one of the other significant alternatives to the rule" was rejected in favor of the final rule. 5 U.S.C.  604 (emphasis added). Importantly, the agency must consider "alternatives that minimize any significant economic impact of the rule on small entities." 5 U.S.C.  603 (emphasis added). 90. Defendants never prepared the required Regulatory Flexibility Agenda and the FRFA for the new 3809 regulations, as amended, fails to consider several significant alternatives that would likely lessen the economic impact on small businesses while achieving the stated objectives. In particular, the new 3809 FRFA does not consider the significant alternative proposals recommended in the NRC Report, which would have met FLPMA's goals and the Defendants' stated objectives of improved environmental protection, i.e., (1) improved implementation of the existing 3809 regulations; and (2) improved implementation of existing 3809 regulations with limited, targeted rulemaking aimed at filling the few discrete regulatory gaps identified in the NRC Report. This violates not only the RFA, but the current Congressional appropriations mandate that the new 3809 regulations, not be inconsistent with the recommendations of the NRC Report. 91. Procedurally, Defendants violated the notice and comment requirements of the RFA and APA by failing to publish a Regulatory Flexibility Agenda, an adequate supplemental IRFA for public comment prior to promulgation of the final 2000 rule or the final 2001 rule. See 5 U.S.C.  553 & 609(a). The IRFA released by Defendants did not satisfy the RFA because its conclusions were untenable and its analysis incomplete. The IRFA released by Defendants incorrectly defined a "small miner" and, as a consequence, failed to consider more than ninety-nine percent of the small businesses that would be and, in fact, are adversely affected. Moreover, the subsequent NRC Report provided additional significant alternatives that the RFA required be considered in an IRFA and released for public comment. In addition, Defendants violated the RFA, 5 U.S.C.  609(a), by precluding small entities from commenting on significant new regulatory provisions added after the public comment periods expired, including the "substantial irreparable harm" provision, i.e., the mine veto authority. 92. Substantively, the FRFA prepared on the new 3809 regulations, as amended, fails to comply with the RFA. The FRFA arbitrarily fails to qualitatively or quantitatively analyze or underrates many economic impacts, arbitrarily ignores other economic impacts, arbitrarily ignores more than ninety-nine percent of small entities affected by the new 3809 regulations, as amended, arbitrarily fails to consider significant alternatives that would likely minimize significant economic impacts on small entities, and otherwise fails to meet mandated requirements of the RFA. 93. As a result of Defendant's failure to comply with the RFA, the new 3809 regulations, as amended, are arbitrary, capricious, and unlawful within the meaning of the APA, 5 USC 706. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays that this Court: (1) Review the challenged regulations to determine whether such actions are ultra vires, arbitrary, capricious, an abuse of discretion, or otherwise inconsistent with law; (2) With respect to Count I, adjudge and declare that the new 3809 regulations, as amended, violate the Congressional mandates found in Pub. L. No. 106-113,  357 (1999) and Pub. L. No. 106-291,  156 (2000), and, for that reason, order that the new 3809 regulations, as amended, be set aside as arbitrary, capricious and inconsistent with law. (3) With respect to Count II, adjudge and declare that the new 3809 regulations, as amended, violate the Congressional mandate contained in Pub. L. No. 105-83,  339 (1997), and, for that reason, order that the new 3809 regulations, as amended, be set aside as arbitrary, capricious and inconsistent with law; (4) With respect to Count III, adjudge and declare that the new 3809 regulations, as amended, are arbitrary, capricious, an abuse of discretion, unlawfully retroactive and inconsistent with and unlawful under FLPMA, the General Mining Law, and the APA, and that Defendants have acted beyond the scope of their legal authority in promulgating such regulations, and order that the new 3809 regulations, as amended, be set aside for that reason and that the Defendants conduct the mandatory review of State laws and regulations as required by 43 C.F.R.  3809.3-1(b); (5) With respect to Count IV, adjudge and declare that the FEIS prepared for the new 3809 regulations, as amended, is inadequate and unlawfully defective under NEPA, and order that the new 3809 regulations, as amended, be set aside while a new EIS is prepared that considers all reasonable alternatives and cumulative socio-economic impacts; (6) With respect to Count V, adjudge and declare that the Regulatory Flexibility Agenda, the IRFA, and the FRFA are inadequate and legally defective under the RFA, and grant the relief authorized by 5 U.S.C.  611(a)(4), including setting aside and remanding the new 3809 regulations, as amended, until an adequate Regulatory Flexibility Agenda, an adequate IRFA, and an adequate FRFA have been prepared and a new decision has been made after considering the adverse economic consequences developed in the FRFA; (7) Enjoin and restrain Defendants, their agents, employees, successors, and all persons acting in concert or participating with them from enforcing or applying, or requiring the States or other third parties to enforce or apply, the challenged regulations; (8) Vacate the new 3809 regulations, as amended; and (9) Grant such other and further relief as the Court deems just and proper. Dated: October 16, 2002 Respectfully Submitted, DELORES M. Plaintiff Plaintiff In Pro Se EXHIBIT 2: (67 FR 31129, May 9, 2002, section II.D) II. Discussion of Final Rule D. The Final Rule and the Resource Investments Decision In Resource Investments Inc v. Corps, 151 F.3d 1162 (9th Cir. 1998), the Ninth Circuit held that the Corps lacked the authority to regulate a solid waste landfill in waters of the U.S. The court found that: (1) Neither the solid waste itself nor the liner consisting of layers of gravel and low-permeability soil constituted "fill material" under Corps regulations; and (2) because of the potential for inconsistent results if landfills were regulated under both section 404 of the CWA and Subtitle D of RCRA, requiring these facilities to be subject solely to RCRA would "harmonize" the statutes. We discussed this decision in the preamble to the proposed rule as an example of some of the confusion engendered by the "primary purpose" test. The court found in RII that the liner was not fill material because its primary purpose was not to replace an aquatic area with dry land or change the bottom elevation of a waterbody, "but rather to serve as a leak detection and collection system." 151 F.3d at 1168. We explained in the proposal that fills typically serve some other purpose than just creating dry land or raising a water's bottom elevation and that, if the court's reasoning were taken to its logical conclusion, many traditional fills in waters of the U.S. would not be subject to section 404. Some commenters objected to our proposal not to follow the decision in RII in this rulemaking. They criticized the proposal as an improper attempt to "override" or "overrule" the Ninth Circuit's decision, particularly within the Ninth Circuit where the decision is binding. They also argued that the proposed rule failed to address the potential for duplication and inconsistency in decision-making by State and Federal agencies identified in RII. In our view, these comments raise two distinct issues. The first is whether we should follow the RII decision outside the Ninth Circuit and cease regulating discharges associated with the construction of solid waste landfills under section 404. The second issue is whether RII precludes us from [*31137] regulating discharges associated with construction of solid waste landfill structures within the Ninth Circuit, even after today's rule. We address each of these issues in turn. Regarding the first question, we note first that, after RII was decided, we chose not to acquiesce in the decision outside the Ninth Circuit. While we agreed that the solid waste disposal placed in a landfill is not fill material (and such waste continues to be excluded under today's rule), we believed that the court misapplied the primary purpose test in the Corps' regulations, and that the court's conclusion that RCRA supplanted CWA regulation was contrary to Congressional intent. See Resource Investments Inc. et al. v. Corps, No. 97-35934 (Government's Petition for Rehearing and Suggestion for Rehearing En Banc, September 30, 1998). Thus, after the court decided RII, the Corps has continued to issue section 404 permits for the construction of solid waste landfill infrastructures outside the Ninth Circuit. After considering public comments, we continue to decline to follow RII outside the Ninth Circuit and have, therefore, maintained the approach in the proposed rule to the regulation of solid waste landfills. The revisions to the Corps' definition of fill material in today's rule address the basis for the court's holding that the landfill did not involve the discharge of fill material under section 404. For the reasons explained elsewhere in today's notice, we believe that an effects-based test is the appropriate means of evaluating whether a pollutant is "fill material" and should be regulated under section 404 as opposed to section 402 of the CWA. The placement of berms, liners and other infrastructure (such as roads) associated with construction of a solid waste landfill in waters of the U.S. has the effect of replacing water with dry land or raising the bottom elevation of a water. Therefore, under today's rule, they constitute fill material. Such discharges are indistinguishable from similar discharges associated with other construction activity, which the Corps has always regulated as fill under section 404. See 40 CFR 232.2; 33 CFR 323.2 (defining "discharge of fill material," to include "fill that is necessary for the construction of any structure in a water of the U.S.; the building of any structure or impoundment requiring rock, sand, dirt or other material for its construction; site-development fills for recreational, industrial, commercial, residential and other uses; causeways or road fills; * * *"). We have amended our definition of this term to include the "placement of fill material for construction or maintenance of any liner, berm, or other infrastructure associated with solid waste landfills." That amendment does not change substantively the prior definition, but merely adds solid waste landfills as an example to make clear that it constitutes a "discharge of fill material." Thus, under our new regulations, discharges associated with the creation of solid waste landfill structures clearly constitute "fill material." To the extent some commenters asserted that revising our regulation was an improper attempt to "overrule" or "override" this holding in RII, we disagree. The court's analysis of the "fill material" in RII was based entirely on the Corps regulations as they existed at that time, and not upon the interpretation of the CWA itself. Moreover, the CWA does not define "fill material." Therefore, both the statute and the Ninth Circuit's decision leave us the discretion to adopt a reasonable definition consistent with the statutory scheme. We have explained elsewhere why we believe today's definition of fill is reasonable and appropriate under the CWA. To the extent today's rule has the practical effect of "overriding" this aspect of the court's decision in RII, that is neither remarkable nor inappropriate, since it is entirely proper for agencies to consider and, if appropriate, revise their regulations in light of judicial interpretation of them. For purposes of deciding whether to apply the RII decision outside the Ninth Circuit, we have also evaluated the second basis for the court's decision-that regulation solely under Subtitle D of RCRA instead of section 404 would "harmonize" the statutes and avoid necessary duplication. We decline to follow that holding both on legal and policy grounds. First, we believe, notwithstanding RII, that eliminating the CWA permitting requirement on the grounds that an activity is regulated under RCRA is contrary to Congressional intent in both statutes. Second, we do not agree with the court that regulation under Subtitle D and section 404 would constitute unnecessary duplication, in light of the distinct purposes served by these authorities, the differing Federal roles under the two statutes, and our clarification in today's rulemaking of our intent to give all appropriate deference to State RCRA decision-making in the section 404 permitting process. We first do not agree with the court's legal reasons for concluding that regulation under Subtitle D of RCRA supplants CWA regulation. The CWA prohibits the discharge of any pollutant into waters of the U.S. without a permit under the Act. See CWA section 301(a). Even though an activity associated with a discharge may be regulated under other Federal or State authorities, we believe there is not any basis to conclude that such regulation by itself makes section 301(a) of the Act inapplicable to a discharge of a pollutant into waters of the U.S. In effect, the court concluded that enactment of a regulatory scheme under Subtitle D of RCRA impliedly repealed the statutory permit requirement under the CWA. But "the intention of the legislature to repeal must be clear and manifest." Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976), and the court must conclude that the two acts are in irreconcilable conflict or that the later act covers the whole subject of the earlier one and is clearly intended as a substitute. Id. The court in RII did not, and could not, make these findings. In fact, Congress itself made precisely the opposite findings when it enacted RCRA. Section 1006(a) states: Nothing in this chapter shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the [CWA] except to the extent such application (or regulation) is not inconsistent with the requirements of (the CWA). This provision precludes regulation of solid waste landfills under Subtitle D in a manner inconsistent with the requirements of the CWA. In our view, it is plainly "inconsistent" with the requirements of the CWA to hold that regulation under RCRA eliminates CWA permitting requirement altogether. Instead, the court relied upon certain Corps regulations, statements by Corps officials and a 1986 interagency MOA. The court first stated that applying section 404 to solid waste landfills was "unreasonable" because there would be "potentially inconsistent results" where both the State and the Corps were applying the same criteria in regulating solid waste landfills. 151 F.3d at 1169. The court held that this "regulatory overlap is inconsistent with Corps regulations stating that "the Corps believes that State and Federal regulatory programs should complement rather than duplicate one another.'" 33 CFR 320.1(a)(5). In addition, the court cited statements by the Corps in a 1984 letter to EPA stating that EPA was in a better position than the Corps to regulate solid waste landfills. Finally, the court cited the 1986 MOA between the Corps and EPA. However, none of these "authorities" purport to modify the statutory [*31138] permitting requirements of the CWA, nor could they. The Corps' regulation cited by the court is simply a statement of the Corps' policy objective of working in concert with State regulatory programs, an important and continuing Corps objective that was discussed previously. The Corps' letter and the MOA reflected our efforts to manage our programs in light of our differing definitions of fill material, but did not speak to the CWA statutory permitting requirement. The court also misconstrued the 1986 MOA entered into by EPA and the Corps as indicating we intended to make the regulation of solid waste facilities within "the sole purview of the EPA and affected states" after EPA promulgated certain Subtitle D regulations. 151 F.3d at 1169. In fact, we stated, EPA and Army agree that consideration given to the control of discharges of solid waste both in waters of the United States and upland should take into account the results of studies being implemented under the 1984 Hazardous and Solid Waste Amendments (HSWA) to the Resource Conservation and Recovery Act (RCRA), signed into law on November 8, 1984... Unless extended by mutual agreement, the agreement will expire at such time as EPA has accomplished specified steps in its implementation of RCRA, at which time the results of the study of the adequacy of the existing Subtitle D criteria and proposed revisions to the Subtitle D criteria for solid waste disposal facilities, including those that may receive hazardous household wastes and small quantity generator waste, will be known. In addition, data resulting from actions under the interim agreement can be considered at that time. It should be noted that this MOA is about the regulation of solid waste disposal, not about the construction of infrastructure, including solid waste landfill infrastructure, that involves discharges of fill material to waters of the U.S. We did not address in the MOA how solid waste landfills would be regulated after EPA completed its study and certain RCRA regulations, but said only that these developments would "be taken into account" as we decided how to address these discharges in the future. Thus, in addition to the inability of the agencies as a legal matter to modify the CWA statutory permitting requirement through an MOA, we expressly reserved any judgment about the appropriate regulatory approach to be taken after certain actions were taken under RCRA. The court appears to have assumed that the MOA expired after we completed the specified steps under RCRA, and that regulatory authority over solid waste landfills thereafter became the sole purview of RCRA. In fact, the MOA did not expire, and it has continued to provide the framework for regulation of solid waste landfills under section 404 of the CWA. See Memorandum of John F. Studt, U.S. Army Corps of Engineers, May 17, 1993 (stating "the subject MOA remains effective in its entirety until further notice" and noting that this position was coordinated with EPA). We conclude, therefore, that it would be contrary to the language and intent of both the CWA and RCRA to conclude that RCRA subtitle D supplants the CWA permitting requirement for discharges into waters of the U.S. associated with the construction of solid waste landfills. The different Federal roles in the permitting schemes in these statutes supports this conclusion. Subtitle D provides that each State will "adopt and implement a permit program or other system of prior approval and conditions" to assure that each solid waste management facility within the State "will comply" with criteria established by EPA for the siting, design, construction, operation and closure of solid waste landfills. RCRA section 4005(c)(1)(B). States are required to submit permit programs for EPA to review and EPA is required to "determine whether each State has developed an adequate program" to ensure compliance with EPA's Subtitle D regulations. RCRA section 4005(c)(1)(B) and (C). However, RCRA does not grant to EPA authority to issue permits for solid waste landfills, review State permitting decisions or enforce Subtitle D requirements in States with approved programs. The court in RII appeared to misunderstand EPA's authorities under Subtitle D of RCRA when it stated that EPA would be the permitting authority in the absence of an approved State program. See 151 F.3d 1169 ("we hold that when a proposed project affecting a wetlands area is a solid waste landfill, the EPA (or the approved State program)... will have the permit authority under RCRA.") (Emphasis added); 151 F.3d at 1167 ("RCRA gives the EPA authority to issue permits for the disposal of solid waste, but allows states to substitute their own permit programs for the Federal program if the State program is approved by EPA."). While this authority exists with regard to disposal of hazardous waste under Subtitle C of RCRA, EPA does not have this authority with regard to disposal of non-hazardous solid waste under Subtitle D. In contrast, the CWA requires either a Federal permit for discharges of pollutants into waters of the U.S., or issuance of a permit by a State/Tribe with an approved program, subject to EPA's authority to object to a permit where EPA finds it fails to meet the guidelines and requirements of the CWA. CWA sections 402(d); 404(j). EPA also has authority under the CWA to enforce conditions in Federal or State permits under the Act. CWA section 309. These contrasting statutory schemes support the conclusion that eliminating CWA authority over discharges of fill material associated with construction of solid waste landfills would mean a significant departure from the statutory structure created by Congress in the CWA, a scheme which Congress expressly sought to preserve when it adopted RCRA. See RCRA section 1006(a). This does not mean that we view the Federal role as one of second-guessing every decision made by State regulatory authorities under RCRA. To the contrary, both RCRA and the CWA reflect a strong presumption in favor of State-administered regulatory programs. As discussed elsewhere, we intend to rely on State decision-making under RCRA to the extent allowed under current law and regulations. However, we believe that eliminating a Federal role entirely on these matters is neither appropriate nor consistent with Congressional intent under RCRA or the CWA. Thus, we decline to follow the decision in RII outside the Ninth Circuit because we conclude there is not an adequate legal basis on which to conclude that discharges of pollutants associated with solid waste landfills no longer need to be authorized by a CWA permit solely because the project receives a permit under Subtitle D of RCRA. We nonetheless share the basic policy perspective expressed by the court in RII about the need to avoid unnecessary duplication and potential inconsistent application of regulatory programs under the CWA and RCRA. In fact, RCRA expressly vests EPA with the responsibility to "integrate all provisions of (RCRA) for purposes of administration and enforcement and (to) avoid duplication, to the maximum extent practicable, with the appropriate provisions of the * * * (CWA). * * * Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies of this chapter and the CWA. * * *" RCRA section 1006(b). EPA has sought such integration first by promulgating location restrictions for landfills that are consistent with the criteria for issuance of section 404 permits. See 40 CFR 258.12; 230.10. Among other requirements, a landfill may not be located in wetlands unless it is demonstrated to the State that there [*31139] are not less environmentally damaging practicable alternatives, the facility will not cause significant degradation of wetlands, and that appropriate and practicable steps have been taken to mitigate the loss of wetlands from the facility. However, EPA never purported to substitute Subtitle D regulation for the CWA permitting requirement, a result that would violate both section 1006(a) and (b). Instead, the Subtitle D RCRA regulations make clear that owners or operators of municipal solid waste landfills "must comply with any other applicable Federal rules, laws, regulations, or other requirements." 40 CFR 258.3. At the time EPA promulgated this regulation, the agency expressly noted that such requirements include those arising under the CWA. See 56 FR 51042 (October 9, 1991). We do not believe, however, that the Subtitle D and section 404 programs are redundant. Rather, each program has a distinct focus. The State RCRA permitting process addresses a much broader range of issues, including technical operating and design criteria, ground water monitoring, corrective action, closure and post-closure care and financial assurances. In contrast, the section 404 process is focused exclusively on the impacts of discharges of dredged or fill material on the aquatic ecosystem, and ways of ensuring that those impacts are avoided, minimized and compensated. Because of the Corps' expertise in protecting aquatic ecosystems, we have found that State RCRA permitting agencies often incorporate by reference the requirements of section 404 permits. (For example, the State RCRA permit for the RII landfill required the applicant to implement the wetlands and mitigation plan to be approved by the Corps through the 404 permit process.) We believe that, in these and other ways, State and Federal permitting authorities can create efficiencies by relying on each other's expertise in making regulatory decisions. We intend to make additional efforts to avoid unnecessary duplication in the Federal and State permitting process. As explained in section II. C of this final preamble, we intend that the Corps will rely on decisions by the State RCRA authority about the siting, design and construction of solid waste landfills in waters of the U.S. to the extent allowed by law and regulations. Appropriate deference to State decision-making will help avoid duplication, while still ensuring that the Corps fulfills its responsibilities to authorize discharges of fill material associated with solid waste landfills in accordance with CWA requirements. This does not mean that, in every single case, State and Federal decision-makers will agree on whether a particular project or configuration is environmentally acceptable. Nevertheless, instances of disagreement have been rare. We intend to further enhance our efforts to ensure effective coordination between State and Federal officials. However, we do not agree with the court in RII that the only way to avoid unnecessary duplication is to eliminate the CWA permitting requirement altogether. We next address commenters' assertions that the decision in RII continues to preclude us from regulating solid waste landfills under section 404 within the Ninth Circuit. These comments also argue that, given the "statutory" basis for the court's decision, we cannot change the result in the Ninth Circuit through this rulemaking. As noted in this preamble, the court construed administrative materials of the Corps and EPA as supporting the conclusion that the agencies did not intend to regulate solid waste landfills under section 404 of the CWA. In light of this agency intent, the court concluded that subjecting landfills to regulation solely under RCRA would "harmonize" the statutes and "give effect to each [statute] while preserving their sense and purpose." 151 F.3d at 1169. The court found that this harmonization "is consistent with the sense of the CWA that discharges of solid waste materials are beyond the scope of section 404... and avoids unnecessary duplication of Federal and State efforts in the area of wetlands protection." Id. We again emphasize the distinction between "discharges of solid waste material," as referenced by the court and discharges of fill material associated with the construction of infrastructure. In this rulemaking, we have clarified that discharges having the effect of raising the bottom elevation of a water or replacing water with dry land, including fill used to create landfills such as liners, berms and other infrastructure associated with solid waste landfills are discharges of fill material subject to the section 404 program. Therefore, we have altered the landscape as understood by the court in RII (i.e., that these facilities were entirely outside the intended purview of section 404). We do not agree with commenters who argued that there was a "statutory" basis to the court's decision in the sense that the holding of the decision turned on an interpretation of Congressional intent in the CWA or RCRA. The court did not cite any provision of the CWA or RCRA to support its conclusions. Rather, the court derived the "sense and purpose" of the CWA based on agency regulations, guidance and correspondence. By clarifying the scope of section 404 authorities in this rulemaking, we have altered the "sense and purpose" of the CWA underlying the court's conclusion that regulation solely under RCRA would "harmonize" the statutes. Because the premises before the court have changed, we do not view the court's decision as continuing to bar the regulation under section 404 of discharges associated with solid waste landfills within the Ninth Circuit. At a minimum, today's rule calls into question the continuing vitality of the court's reasoning and conclusions and, should a case be brought within the Ninth Circuit challenging our authority to regulate solid waste landfills, we would ask the court to address the question anew in light of the clarification of our authorities in today's rule.