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Transcript here. - American Exploration & Mining Association

116th National Western Mining
Conference & Exhibition
April 17, 2014
National voice for exploration of locatable and noncoal minerals, the junior mining company sector and
maintaining access to public lands
Public lands, Mining Law, environmental, health &
safety, public outreach
State mining association for OR & WA
Active Washington DC presence
Second largest annual mining convention in U.S.
Greater Sage-Grouse (“SG”) habitat covers + 100
million acres in 11 western states
• BLM/USFS administer + 60 million acres of habitat
BLM’s proposed land use restrictions & prohibitions in
the LUPAs will severely restrict access and multipleuse
Wildlands Policy (Sec. Order 3310) disguised as a sage-grouse
Prohibit mineral entry in priority habitat areas
Create widespread adverse economic impacts in 11 states
Most serious threat to mining on public lands since Mining
Law debates of the 1990s
It’s the LUPAs, not the listing
2002 – 2003: Petition to list GSG as a T&E species
2005: USFWS determined listing “not warranted”
2007: Lawsuits challenging USFWS’ decision
• Idaho District Court remands to USFWS
2010: USFWS Warranted but Precluded (“WBP”)
listing determination makes GSG a candidate
species (8 on a 1-12 scale)
• Key question: Are existing regulatory mechanisms
adequate to conserve GSG habitat?
Science supporting WBP is weak—CESAR Report
• Dr. Oz Garton- used computer models and cites the
infamous “Dr. Anonymous”
• WBP decision cites lack of enforceable
regulatory mechanisms, mainly in WY
• In 2011, FWS enters into a behind closed
doors settlement with environmental
plaintiffs on hundreds of species, including
GSG that impact all of the lower 48 states
• USFWS agrees to eliminate the statutory
WBP (“candidate species) option leaving
only two choices: “warranted” or “not
warranted” (de facto warranted because
of policy where science is in doubt)
• Essentially deprives states & private parties
of the ability to demonstrate their
conservation plans are working
Settlement may violate ESA:
• Eliminates possibility that candidate species, including
GSG, could remain candidate species (velvet hammer
becomes a sledge hammer)
• Arbitrary and aggressive deadlines impedes FWS ability to
use “best available science and commercial data”
• WBP as a selectable alternative is necessary to ensure
determinations are based on best available science and
commercial data when that science is evolving
• Recent decision to reopen comment period for Bi-State DPS
and delay decision for 6 months references new data and
emerging science
Court approves settlement with a listing deadline of
FYE 2015 for the GSG
OK & Domestic Energy Producers Alliance sue to
invalidate multi-species settlement agreement
• Alleges violation of ESA, APA & Constitution by eliminating
statutorily mandated alternative of WBP in a friendly,
behind-closed-doors settlement
• Violated statutory obligation to make decisions based on
best available science and commercial data
• Violated statutory obligation to consider efforts of a state or
political subdivision to protect a species
• Altered FWS legal obligations in absence of congressional
action or a public rulemaking
Consider Sec. Salazar’s invitation to western governors
to develop state plans when there was no chance they
would prevent a listing because of settlement deadlines
BLM/USFS amending 88 land use plans to address
conservation of sage-grouse and its habitat
USFWS/BLM assume human activity is the problem,
but . . . it’s really fire and invasive species, especially
in the Great Basin states
Ted Koch, USFWS Supervisor for NV, states the three
greatest threats to the Greater Sage-grouse are
• Fire and invasive species; Fire and invasive species; Fire and
invasive species
Stopping fire and invasive species requires active
land management by all, including industry
BLM issues its National Technical Team Report (NTT
Report) in December 2011
• Draconian land restrictions--“Stop doing that”
• The NTT Report is a significant departure from Secretary
Salazar’s collaborative approach. (top down
• Could signal a pre-determined outcome.
• Judge Winmill 11/23/2012 decision that NTT is “best
available science”, but . . . is it?
• Winmill’s declaration of “best available science” puts
Wyoming’s core strategy at risk
• Maximum 3% total disturbance v 5% new disturbance
• No State Plan can succeed if NTT is the “best available science” and
the measuring stick
• Does not adequately address fire or invasive species
A listing is preferable to the NTT Report
The outside scientists only reviewed the
conservation measures section of the report and not
the policy recommendations.
Review: “Lack of consideration of space, and
particularly (in this document) time is a critical
mistake that, to me, renders this document
problematic, if not dangerous.”
Review: “The document is an odd mix of scientific
citations and policy decisions, with no real tie
between the two…This seems a strange blend of
policy loosely backed by citations, with no analysis
of the science.”
AEMA (NWMA) Report, BLM’s NTT Report: Best
Available Science or a Tool to Support a PreDetermined Outcome
Prepared by independent biologist Megan Maxwell
National media coverage
Referenced in congressional oversight hearings
Cited by oil & gas trade associations in their comments
Now part of the administrative record in CO, ID, MT, NV, UT
& WY draft LUPAs
• Reveals BLM ignored existing tools like the 2004 sage brush
guidance and 2008 Special Status Species Manual 6840 to
create new, draconian regulatory mechanisms
• Misinterprets 2010 WBP determination by concluding that
new regulatory mechanisms are required
WAFWA criticizes NTT Report
• “Applying a “one-size-fits-all” approach focusing solely on
the NTT report is not appropriate for management of the
variations that occur across the sage-grouse range.. Our
concern is that using the NTT, in vacuum, would undermine
sage-grouse conservation range-wide.”
Dr. Rob Roy Ramey II, Wildlife Science International,
Inc. reviewed the Data Quality Act issues in the NTT
Report and concluded:
• “In reality, the NTT report represents a partial presentation
of scientific information to justify a narrow range of
preferred conservation measures and policies that will be
imposed as land use regulations by the BLM.”
Governor Otter’s FOIA Request
In response, after several delays and threat of litigation,
BLM released over 2,000 pages of emails, meeting notes
and draft documents relating to the NTT Report (tip of
the iceberg)
Response reveals:
At best, a Department divided on this issue.
At worse, an effort to preclude new development on 4060 million acres of public land.
NTT Report is a reversed-engineered, policy first, science
second document
Supports conclusions in Maxwell & Ramey papers
From: Dwight Fielder
To: Pat Diebert, et al.
Date: December 21, 2011
“But, does the NTT really want to recommend
something that is blatantly illegal? It seems to me
that the caveat provided makes it clear that the NTT
document IS a technical document that has not
undergone a policy or legal review.”
From: Pat Diebert
To: Dwight Fielder, et al.
December 21, 2011
“The NTT is providing the science. That does not
change with the laws that BLM works under.”
From: Dwight Fielder
To: Raul Morales
December 21, 2011
“I don’t know how to respond to this and am thinking
that I shouldn’t.”
From: Ray Brady
To: Jim Perry, et al.
Date: Tuesday, December 20, 2011
“I have reviewed the Planning IMN Conservation
Measures for the rights-of-way (ROW) activities on
page 11-12 of the NTT Report. These planning
prescriptions will be significant game changers and
unworkable in my mind for the linear ROW program,
including renewable energy rights-of-way (especially
wind energy program).”
From: Tony Apa
To: Christian Hagen, Steve Knick, David Naugle, Pat
Date: September 12, 2011
“I’ve tried to identify those biological
recommendations that may need a scientific citation
. . . If we don’t have the science I’m assuming it will
be our best professional judgment. So, if you could
get each of you to take a shot and identify a research
citation that supports the biological recommendation
along with the full citation I would greatly appreciate
the help.”
From: Robin Sell
To: Raul Morales
Date: Friday, September 16, 2011
“Hi, Raul – My question, and maybe a suggestion . . . I don’t feel
like we really got into (or had time to discuss) the current
science out there on SG (Sage-Grouse) . . . so I would like to
propose that the researchers and biologists on the NTT – maybe
a few other bios if appropriate – meet again in the next few
months (maybe Nov/Dec) for about three days to have a frank
discussion on various studies/papers out there . . . the good, bad
& ugly so to speak. It would not have to hold up the current
document we have worked on…The reality, the science folks
were not going to have this kind of discussion with program
leads in the group, and timeline did not allow this review and
scrutiny. But I think this kind of full disclosure will really benefit
the Bureau, FWS, and SG down the road.”
What is the “real” purpose of the NTT Report?
Does FWS believe these measures are necessary to
preclude a listing?
• Not according to two FWS state supervisors
Why did BLM publically release this flawed
document knowing it was flawed?
Why did the BLM represent to Judge Winmill that
the NTT Report was the “best available science”?
Especially when it was heavily criticized by the
outside reviewers.
BLMs Draft LUPAS/EIS’ & Acres Proposed for Withdrawal per the NTT
Preferred Alternative
Environmental/NTT Alternative
No Action Alternative
Miles City DRMP (MT)
Hiline DRMP (MT)
Billings/PPNM DRMP (MT)
Bighorn Basin Draft
Supplement to DRMP
Northwest Colorado GSG
Amendment (CO)
1,764,621 /1,529,955
124,800 (co-located in
GSG habitat)
NV/NE Cal Sub-Regional
Idaho and Southwestern
Montana Sub-Regional
Greater Sage-Grouse RMP
Utah Greater Sage-Grouse
Draft Land Use Plan
9-Plan GSG Amendment
237,400 /369,600
From the Hiline Montana DRMP
• "The management of wildlife resources and habitat outside
of special designations would seldom prevent locatable
mineral development, but in order to avoid significant
impact to wildlife, special conditions and possible relocation
of exploration or mining development could occur. This
relocation, as well as any additional mitigation would create
time delays and further expenses for locatable mineral
development if not closing the area to mineral entry
through withdrawal…"
The cure is worse than the disease – an
“endangered” finding is preferable to the LUPAs
Litigation is looming -- who will be plaintiffs and who
will be defendant interveners
Not warranted?
• 2005 finding, but not likely now
Warranted but precluded?
• NOT an option because USFWS agreed to eliminate this
option in the behind-closed-door settlement agreement
• Endangered
 Dan Ashe says not likely – lots of birds
• Threatened with a 4(d) rule
Dan Ashe seems to be telegraphing this option
Lesser Prairie Chicken and Bi-State Sage-grouse
Restrictions can be more draconian than an endangered listing
Does not alleviate §7 consultation requirement
If BLM preferred alternatives are implemented, the
impacts on economic use of the public lands are far
more onerous that an “endangered” finding
• LUPAs will be final ~ one year before listing decision
• No guarantee they will result in a “not warranted” finding
Worst case scenario = LUPAs + threatened with 4(d)
Species management moves from states to feds
Draconian land use restrictions in place
Governors’ plans are trumped
Flexibility eliminated
Economic devastation across the west
Megan’s Report debunking NTT Report
Formed sage-grouse task force
Building the administrative record by filing
comments on draft LUPA/EIS’ in 7 states
◦ Preferred alternatives based on NTT report and not on the
best available science and commercial data
◦ BLM/USFS exceeded their statutory authority proposing
actions that fail to comply with NEPA and violate:
The General Mining Laws
Information (Data) Quality Act
• Conservation measures are more draconian than
restrictions from an ESA listing
 Elevates sage-grouse conservation above all other resources
and uses in violation of FLPMA §102(12):
The Congress declares 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, food, timber, and
fiber from the public lands including implementation of the Mining
and Minerals Policy Act of 1970.
Working closely with Congressional staff
• Educating members & staff, providing witnesses and
questions for oversight hearings
• Legislation to delay decision and provide states and BLM
more time
Working closely with WGA, governors’ staffs &
coalition partners
Use the appropriations process to delay the listing
decision until after October 1, 2015
◦ PROBLEM -- Doesn’t prevent BLM/USFS from imposing
restrictions in LUPAs
Rep. Amodei (R-NV) Sage-grouse and Endangered
Species Conservation and Protection Act (H.R. 4419)
Focuses on fire, invasive species and habitat restoration
Sale of public land to fund habitat conservation
Requires funding in place before a listing decision
Extends timelines for action on listing petitions to 5 years
Minimum one year public comment period
Reid-Heller discussion draft for Nevada
• WSA + sage-grouse habitat = new Wilderness dedicated to
sage-grouse conservation;
• sale of public lands for economic development to local
governments and certain industries; proceeds fund
mitigation bank, fire suppression, habitat restoration
• LUPAs will dictate activity in sage-grouse habitat outside of
• Very little on-the-ground support in northern Nevada
• No guarantee re listing decision
• Not supported in the House
Take away messages:
only way to stop the LUPAs
• Proposed restrictions on use are worse than a listing
• Join with other public & private land user groups—
strength in numbers
Thank you!