The Alaska Miner Summer 2023 8 Editor’s note: In July AMA commented at length to Tracy Stone-Manning, Director of the Bureau of Land Management, opposing proposed BLM Conservation and Landscape Health Proposed Rule, 88 Fed. Reg. 19583. AMA board and committee members worked countless hours to craft our total comments, which covered more than 10,000 words, but here is a summary: AMA recommends that BLM withdraw the proposed rule as it is not needed, is not consistent with the Federal Land Policy and Management Act (FLPMA), would require Congressional action and thus exceeds BLM’s authority to promulgate, and would be detrimental to the mineral industry in Alaska. If the rule is not withdrawn, BLM lands in Alaska should be exempt from the rule as the rule is inconsistent with, and potentially in violation of, the Alaska National Interest Lands Conservation Act (ANILCA), passed by Congress in 1980. If Alaska is included, it is undeniable that there would be significant impacts on our members and their ability to develop the critical and strategic mineral supplies our nation desperately needs and BLM must fulfill its legal obligations to do an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA). It is also undeniable that the Proposed Rule fundamentally changes how the United States government manages millions of acres of BLM lands in Alaska without Congressional authorization. The planning processes in these areas are well evolved and such changes would take years to implement by local staff that are already overwhelmed by their current commitments. Such on the ground implementation challenges and the realities of how they would affect minerals and other important uses of BLM lands are ignored in the Proposal Rule and must be considered before any rule is finalized. The cost of this regulation would be staggering in terms of its economic impacts and its costs of implementation and thus requires Congressional action. The Supreme Court also outlined the “major questions doctrine” to affirm that federal agencies must have clear Congressional authority when regulations issues of importance to the American public. The Proposed Rule will absolutely have “vast economic and political significance” and would govern land use across millions of acres of public lands. That Congress has chosen not to enact the rule BLM seeks to promulgate here is seen from the fact that in 2016 Congress nullified the similar “Planning 2.0 Rule” that was nullified pursuant to the Congressional Review Act and meets both the two requirements to be considered a major question. The Proposed Rule violates and is inconsistent with the Federal Land Policy and Management Act. While the Proposed Rule references the Federal Land Policy and Management Act of 1976 (FLPMA), it fundamentally violates FLPMA in multiple ways, including n illegally adding “conservation” as a “use” when Congress did not include it in FLPMA’s specific list of uses (FLPMA Section 103(l)); n redefining key terms already defined by Congress in FLPMA, “multiple use” and “sustained yield” (FLPMA Section 103(c and h)); n contorting the scope and definition of “areas of critical environmental concern” beyond FLPMA’s scope and n using current Administration “conservation,” “restoration,” and “ecosystem resilience” policies to impermissibly withdraw public lands from public use in violation of FLPMA § 204. The Proposed Rule also revises the framework for establishing Areas of Critical Environmental Concern (“ACEC”). Finally with regards to FLPMA, the Proposed Rule creates inconsistencies with BLM’s 43 CFR 3809 mining regulations per FLPMA’s mandate that mining activities must prevent unnecessary or undue degradation (UUD). The Proposed Rule is inconsistent with the Mining Law. The Proposed Rule substantively conflicts with the Mining Law. FLPMA expressly amends the Mining Law, in a very intentionally narrow and limited way. The Mining Law authorizes and governs the exploration, discovery, and development of valuable minerals, and allows citizens of the United States the opportunity to enter, use and occupy public lands open to location to explore for, discover, and develop certain valuable mineral deposits. Per NEPA, the BLM must prepare an Environmental Impact Statement for the Proposed Rule. Yet in the Federal Register notice for the Proposed Rule, BLM states that it intends to apply the Department’s Categorical Exclusion (CATEX) provisions and that BLM is not required to prepare a NEPA document, either an Environmental Assessment (EA) or an Environmental Impact Statement (EIS), to assess the impacts of this proposed rule. AMA's comments on proposed BLM rules CONTINUED on PAGE 10
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