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The New York Times

Editorial

Last-Minute Mischief

Published: October 17, 2008

All presidents indulge in end-of-the-term environmental rule-making, partly to tie up bureaucratic loose ends but mainly to lock in policies that their successor will be hard pressed to reverse.

President Bill Clinton's midnight regulations were mostly good, including a rule protecting 60 million acres of national forests from road-building and most commercial development. Not surprisingly, most of President Bush's proposals are not.

Exhibit A is a set of six resource management plans covering 11 million acres of federal land in Utah. They would open millions of acres to oil and gas drilling and off-road vehicles, risking priceless cultural artifacts and some of the most breathtaking open spaces in America. The plans, each more than 1,000 pages, were dumped on an unsuspecting public in the last few weeks by the Bureau of Land Management.

The bureau claims that it wasn't trying to pull a fast one and that drafts were available months ago. But the final documents are what count. The public now has only a few short weeks to register objections before the secretary of the interior makes them final.

Why the rush? The agency says it had to wrap things up before it ran out of planning money. What we are really seeing, though, is the last gasp of the Cheney drill-now, drill-everywhere energy strategy; one last favor to the oil and gas drillers and the off-road vehicle enthusiasts before a more conservation-minded president (both Senators Barack

Obama and John McCain have far better records than Mr. Bush) comes to town.

Environmentalists are also suspicious of the Interior Department's recent proposal to revoke a longstanding if rarely used regulation that gives Congress and the interior secretary emergency powers to protect public lands when commercial development seems to pose immediate environmental dangers.

Dirk Kempthorne, the interior secretary, decided that the rule was unnecessary after Representative Raúl Grijalva of Arizona and about 20 other members of the House Natural Resources Committee ordered him to withdraw about 1 million acres near the Grand Canyon from new uranium mining claims to give officials time to assess potential damage to the air and water.

Arguing that the committee did not have a quorum and that he had other means of guarding against damage, Mr. Kempthorne not only refused to obey the committee's order but proposed to rescind the departmental rule requiring him to obey it. The public has been given 15 days to comment, after which Mr. Kempthorne will be free to jettison the rule.

Mr. Kempthorne is also pressing ahead with plans to scale back important protections required by the Endangered Species Act by eliminating some mandatory scientific reviews by the Fish and Wildlife Service of federal projects that could threaten imperiled animals and plants.

The new rule — which could be made final at any moment — would allow projects like roads, bridges and dams to proceed without review if the agency in charge decides they would cause no environmental harm. The National Audubon Society and other groups have compiled an extensive list of cases in which the agencies misjudged the threat and Fish and Wildlife Service scientists had to intervene to protect the species.

Some of the administration's recent regulations have been helpful — one tightening pollution controls on small engines like lawnmowers, another tightening lead emissions. But others could cause serious and lasting damage. And there are still three nerve-racking months to go before Mr. Bush leaves office.

Eric Bontrager, E&ENews PM reporter

The Bureau of Land Management proposed a rule today that would eliminate a regulation that allows for emergency withdrawals of public land from energy production and mineral extraction to protect natural resources.

At issue is a 1976 Federal Land Policy and Management Act provision that permits the Interior secretary, the House Natural Resources Committee or the Senate Energy and Natural Resources Committees to authorize emergency withdrawals.

There was a battle over the provision in June when the House Natural Resources panel voted to have Interior Secretary Dirk Kempthorne withdraw the last pockets of BLM and Forest Service land near the ..:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Grand Canyon from new uranium mining claims. Interior rejected the panel's request, saying the committee did not have a quorum for the vote, which was taken after Republicans walked out of the meeting.

BLM is now moving in a Federal Register notice to strike the emergency-withdrawal rule. The proposal would retain conventional withdrawal provisions for BLM-managed lands, which the agency says are more than adequate to protect resources.

"The BLM recognizes that unique circumstances may arise requiring the withdrawal of land from particular activities in order to preserve resources and values that need immediate protection," BLM Director Jim Caswell said in a statement. "We remain committed to working closely with states, local governments, and other stakeholders in the timely withdrawal of land under such critical circumstances."

A Natural Resources Committee Democrat blasted BLM for starting a 15-day comment period on the proposal at the beginning of the Columbus Day weekend, while Congress is not in session.

"This last-minute move by this 'see if we can get it under the clock' administration is cowardly," House Parks Subcommittee Chairman Raúl Grijalva (D-Ariz.) said. "Their whole reaction to our resolution has been to either ignore, resist or forget it happened, and now with the litigation, they're changing the rules."

Advocates of keeping mining out of the Grand Canyon lands disagree with BLM's handling of the land withdrawals. Three environmental groups, including the Center for Biological Diversity, filed a lawsuit against Interior last week to force Kempthorne to withdraw the Grand Canyon lands.

Environmentalists say the committee's emergency withdrawal was the only way to protect the canyon and the surrounding region from the potentially devastating environmental impacts of uranium mining. More than 1,100 uranium mining claims have been filed for sites within 5 miles of Grand Canyon National Park. Because BLM controls mineral rights under Forest Service land, the proposed rule would apply to both agencies' mineral deposits around Grand Canyon.

Taylor McKinnon, public lands program director for the Center for Biological Diversity, said he doubted the proposed rule would affect his group's lawsuit or the committee's vote on the Grand Canyon lands. "This regulation has been on the books for decades," he said, "and changes to it can't be applied retroactively."

BLM maintains that the emergency provision is redundant, given the agency's existing land-withdrawal procedures. Under conventional withdrawal procedures, BLM said it considers ownership and other legally recognized interests by allowing public participation in decisionmaking and coordination with other federal agencies.

"The BLM's experience indicates that the procedures for issuing an emergency withdrawal order do not result in the protection of public lands more rapidly than the completion of a more conventional withdrawal process," the agency's proposal says.

Conventional land-withdrawal procedures require the agency to immediately "segregate" lands in question upon publication of the proposed withdrawal in the Federal Register. That must happen within 30 days of a withdrawal petition being received and immediately after the petition is approved.

Because it rarely takes 30 days to make a withdrawal decision, the difference between the emergency process and the conventional process "is only a matter of days," BLM spokeswoman Jill Moran said. "They essentially have the same effect."

Segregations can last up to two years, with withdrawals lasting up to 20 years. By contrast, an emergency withdrawal cannot exceed three years.

Moran emphasized that the proposed rule does not change the law itself, nor does it affect congressional authority over the agency.

"Removing the BLM regulation does not change the emergency withdrawal provision of the statute," she said.

Rarely used provision

Prior to the committee's action this summer, the emergency-withdrawal provision was used by the House committee four other times since 1976 -- all were under former Chairman Morris Udall (D-Ariz.), with mixed success.

In 1978, Udall asked Interior Secretary Cecil Andrus to withdraw approximately 110 million acres in Alaska from the public domain, a move that laid the groundwork for establishing the state's protective land and wildlife units. The committee issued another emergency order in 1979 for Andrus to withdraw lands in Ojai and Ventura, Calif., from exploratory uranium drilling.

In 1981, the committee ordered President Reagan's Interior secretary, James Watt, to remove 1.5 million acres of national forest lands in Montana's Bob Marshall, Scapegoat and Great Bear wilderness areas from mineral leasing. While questioning whether the action was constitutional, Watt carried out the order "in the interest of maintaining harmony between Congress and the executive."

The legal validity of the emergency power was questioned again in 1983, when the committee again directed Watt to temporarily withdraw tracts in the Fort Union region of Montana and North Dakota from coal leasing. Watt resisted, citing earlier legal precedent that suggested the emergency declaration could conflict with the bicameralism and presentment clauses of the Constitution, but subsequent litigation did not clearly define whether the emergency withdrawal power is valid.

The Congressional Research Service reached the same conclusion as Watt in a memo this year, concluding that while the House Natural Resources Committee could exercise its right under the law, Kempthorne would not necessarily have to comply with the order.

Groups sue over uranium exploration

By AMANDA LEE MYERS 09.30.08

PHOENIX - Three environmental groups filed a lawsuit against U.S. Interior Secretary Dirk Kempthorne for authorizing uranium exploration on one million acres of public land near the Grand Canyon.

The Center for Biological Diversity, the Grand Canyon Trust and the Western Mining Action Project filed the suit in U.S. District Court on Monday. Also named as defendants are the Department of Interior and U.S. Bureau of Land Management.

Department of Interior spokesman Chris Paolino said it's department policy to not comment on pending litigation.

The environmental groups say Kempthorne defied a House committee resolution protecting one million acres near the Grand Canyon from new uranium mining by continuing to authorize uranium exploration.

The House Natural Resources Committee in June passed a measure 20-2 after Republicans walked out of the hearing in protest. The measure required Kempthorne to stop issuing new mining claims, but an Interior official argued in a letter sent to the committee chairman that the resolution couldn't stand because the committee lacked a quorum.

The Interior Department letter from congressional and legislative affairs Director Matt Eames said the committee needed 25 members present to act on the measure and fell three votes shy.

As a result, he wrote, "we do not believe that the resolution constitutes a notification of the committee, as required under the statute."

Since the resolution passed, four new mining claims were filed and four notices for uranium exploration were accepted along the Arizona strip, the part of the state north of the Colorado River, said Scott Florence, director of the Bureau of Land Management's Arizona strip district.

He said most if not all the claims and notices were on the land specified in the resolution.

BLM issues new volley in Canyon mine fight

Lawmakers tried to block uranium mines

Ginger D. Richardson - Oct. 10, 2008 12:00 AM
The Arizona Republic

Federal officials moved Thursday to abolish a rule that allowed a congressional committee to try to block future uranium mining around the Grand Canyon.

The plan by the Bureau of Land Management has outraged conservationists, who said the Interior Department and the Bush administration are advancing business and energy interests at the expense of the environment.

"They behave more like real-estate agents than stewards of those lands," said Rep. Raul Grijalva, the Arizona Democrat who invoked the arcane emergency declaration during a June committee meeting. In that meeting, committee members passed a resolution that ordered Interior Secretary Dick Kempthorne to immediately ban new mining claims on more than 1 million acres of federal lands north and south of the Canyon for up to three years.

Lawmakers invoked a little-used rule in Section 204 of the 1976 Federal Land Policy and Management Act that allows House and Senate natural-resources committees to take emergency action to protect threatened public lands.

But the Interior Department questioned the constitutionality of the rule and continued to authorize additional mining claims and permits near the park. Environmental groups sued, and the case is pending in U.S. District Court as permits continue to be issued.

This new action by the BLM, one of several agencies under the Interior Department's umbrella, essentially rescinds Congress' right to withdraw lands from mining and other activities in emergencies, Grijalva said.

It also will leave the Grand Canyon vulnerable to environmental damage from hard-rock mining and exploratory drilling, conservationists say.

"The administration has chosen to change the law under a highly constrained public process rather than follow it and protect Grand Canyon," said Taylor McKinnon, public-lands program director for the Tucson-based Center for Biological Diversity. "Nothing - not laws, not Congress and not the Grand Canyon itself - will impede this administration's accommodation of industry on our public lands."

There are as many as 10,000 existing mining claims on BLM and U.S. Forest Service lands near the Grand Canyon for all types of hard-rock exploration, officials have said.

Since the June emergency resolution, three exploration projects have been initiated and four exploration projects have been authorized in the area, McKinnon said.

Conservationists believe that a hard-rock mining boom that has accompanied higher prices for uranium and other raw materials poses an immediate environmental threat to the national park. They also believe such exploration could have a negative effect on Colorado River drinking water used by millions of residents in Arizona, Nevada and California.

But the BLM, which manages more than 258 million acres of public land, mostly in the western United States, argues that there are ample protections in place to protect the Canyon and to ensure the sanctity of federal lands.

"I know there are protections in place for the Canyon and all the public lands. Whether it be the Clean Water Act, the Clean Air Act, there are protections in place," BLM spokesman Chris Paolino said.

"Impact statements need to be done. Rules need to be followed before any mining goes forward."

The agency said Thursday that it moved to eliminate the emergency declaration because it was redundant. The Interior secretary already is required, under the department's own rules, to withdraw land from public activities in cases where those activities would pose potential harm to the environment, Paolino said.

But conservationists argue that those protections and regulations haven't been enough.

"Those laws haven't prevented spills in the past," said McKinnon, citing a 1984 flash flood that washed 4 tons of uranium ore into a creek and then into the Colorado River. "It would be foolish to entrust the Grand Canyon and the Colorado River to the same irresponsible agencies and industries a second time."

The public has 15 days to comment on the proposal.

Settlement blocks uranium project near Grand Canyon

Eric Bontrager, E&ENews

The Forest Service, a British mining company and a coalition of environmental groups have reached an agreement that will halt development of uranium mineral deposits near the Grand Canyon.

Under the settlement announced today, the Forest Service and VANE Minerals will withdrawal all applications and approvals for exploratory drilling for uranium in Kaibab National Forest.

The Center for Biological Diversity, the Sierra Club and the Grand Canyon Trust challenged the project, which involves drilling at 39 sites near the southern boundary of Grand Canyon National Park, amid concerns the Forest Service was improperly fast-tracking the project. The environmental groups contended in a lawsuit that the Forest Service used a categorical exclusion to expedite the project's approval and inappropriately excluded the public from the decisionmaking process.

The National Environmental Policy Act allows the Forest Service to use categorical exclusions to forgo environmental assessments for small-scale projects provided they are "routine actions" and limited in duration, but a federal judge in Arizona issued an injunction halting drilling in April.

While the agency still maintains that it was not in the wrong to issue a categorical exclusion, the settlement requires the Forest Service to conduct an environmental impact statement (EIS) for the exploratory drilling.

Taylor McKinnon, public lands director for the Center for Biological Diversity, said it is unlikely even a valid EIS would allow uranium mining near the Grand Canyon, thanks to a resolution the House Natural Resources Committee passed in June to withdraw the last remaining tracts of public land around Grand Canyon National Park from future uranium development.

"If the Forest Service and VANE Minerals chose to renew their attempt for exploration ... they're going to run aground on that new resolution," McKinnon said.

The resolution compels Interior Secretary Dirk Kempthorne to withdraw the last pockets of public land around the Grand Canyon from new uranium mining claims. The emergency resolution utilized authority granted to the committee under the Federal Land Policy and Management Act of 1976 to compel Interior to act.

But the Interior Department rejected the committee's motion on a technicality, explaining in a letter to Chairman Nick Rahall (D-W.Va.) that because Republicans walked out on the vote for the resolution, there was not a majority of committee members needed to reach a quorum. Rahall argued in his response that because the resolution goes directly from the committee to the department, the committee requires no less than one-third of its members to reach a quorum (E&E Daily, July 18).

A spokesman for the committee said there has been no development on the issue since the exchange of letters in July.

Calls to the Forest Service seeking comment were not returned by deadline.

E&E News, September 10, 2008

INTERIOR: Sex, drugs, booze and industry cash in MMS ethics scandal
By Noelle Straub, E&E News

Interior Department employees accepted gifts from oil and gas companies, participated in "a culture of substance abuse and promiscuity" and considered themselves exempt from federal ethics rules, new reports by the department's inspector general say.

The reports -- the result of three different investigations against more than a dozen current and former employees of the Minerals Management Service, which collects about $10 billion in royalties annually -- found a "relatively small group of individuals" wholly lacking in government ethical standards and management that provided passive or purposeful ignorance, Inspector General Earl Devaney wrote in a memo to Interior Secretary Dirk Kempthorne.

The investigation discovered that nearly a third of the entire staff of MMS's royalty-in-kind (RIK) program socialized with and received a wide array of gifts and gratuities from oil and gas companies with which the agency was conducting official business. The RIK program allows companies to pay royalties in the form of oil and gas rather than cash.

The dollar amount of the gifts was not enormous, but the gifts were accepted with "prodigious frequency." Two RIK marketers received gifts and gratuities on at least 135 occasions from four major oil and gas companies with which they were doing business.

"When confronted by our investigators, none of the employees involved displayed remorse," the memo says.

The investigation also found drug and sex abuse both inside the program and "in consort with industry." One supervisor, Greg Smith, engaged in illegal drug use and had sexual relations with subordinates. Several staff members admitted to illegal drug use as well as illicit sexual encounters, and some had sexual relationships with industry contacts.

"Alcohol abuse appears to have been a problem when RIK staff socialized with industry," it said.

One of the employees, Jimmy Mayberry, has already pleaded guilty to a criminal charge. The cases against two others, Greg Smith and Lucy Querques Dennet, were referred to the Justice Department's public integrity section, but that office declined to prosecute them.

Three senior executives, Mayberry, Dennet and Milton Dial, were good friends who remained "calculatedly ignorant" of the rules governing post-employment restrictions, conflicts of interest and federal acquisition regulations, to ensure that two lucrative MMS contracts would be awarded to the company created by Mayberry and later joined by Dial.

"Dennet manipulated the contracting process from the start," the letter says.

Some employees have escaped any actions against them by retiring "with the usual celebratory send-offs," which were undeserved, the memo says.

The investigation took more than two years and cost nearly $5.3 million. More than 250 witnesses were interviewed and about 470,000 pages of documents and e-mails were reviewed. It took so long due to the criminal nature of some allegations, long discussions with Justice and the refusal of Chevron Corp. to cooperate with the investigation, Devaney wrote.

The most serious problem uncovered was a "pervasive culture of exclusivity, exempt from the rules that govern all other employees of the federal government."

"Not only did those in RIK consider themselves special, they were treated as special by their management," the letter says. The reporting hierarchy of RIK bypassed "the one supervisor whose integrity remained intact throughout, Debra Gibbs-Tschudy," and reported directly to Washington, D.C. The unethical conduct was "apparently invisible" to former MMS Associate Director Lucy Denett.

Devaney said that 99.9 percent of Interior employees are ethical, but the few highlighted in the reports "cast a shadow on an entire bureau."

He recommended administrative corrective action for the individuals, an enhanced ethics program and code of conduct for the RIK program and changing the program's reporting structure. MMS Director Randall Luthi said the agency has already begun implementing some of those recommendations.

Senate Energy chair mulls reform

Luthi told reporters the agency had asked for the investigation in 2006. He said he takes the reports very seriously and will work to fix the problem before he leaves office in January. The inappropriate actions took place before the spring of 2006, he said, when an employee brought concerns about inappropriate actions to managers. He said the agency has made progress since then.

"This is not the program that was going on in 2006," Luthi said.

The agency pulled employees who might have been involved out of the RIK program when the investigation began, he said. The agency will now take 90 days to consider what action, up to dismissal, it will take against the remaining seven or so employees cited in the reports who still work there.

The reports come as the latest in a series of harsh criticisms of MMS.

"Simply stated, short of a crime, anything goes at the highest levels of the Department of the Interior," Devaney told the the House Government Reform Energy and Resources Subcommittee in 2006.

Management problems at MMS had become so severe that the agency appeared to be held together with a "Band-Aid approach," Devaney also found.

Senate Energy and Natural Resources Chairman Jeff Bingaman (D-N.M.) called the improper activities in the reports "extremely troubling."

"From my vantage point, this investigation raises very serious questions about management and organization at the Interior Department," Bingaman said. "American taxpayers deserve to have confidence that their interests are being protected when it comes to collecting royalties from the production of public oil and gas resources, especially given the potential for expanded domestic drilling."

Bingaman said he would push for basic reforms in any drilling bill that is considered.

House Natural Resources Chairman Nick Rahall (D-W.V.) blasted the agency.

"The activities at the RIK office are so outlandish that this whole IG report reads like a script from a television miniseries -- and one that cannot air during family viewing time," he said. "It is no wonder that the office was doing such a lousy job of overseeing the RIK program; clearly the employees had 'other' priorities in that office."

Forest Service Proves Its Own New Rule Illegal,
Abandons Trial Run Near Flagstaff

FLAGSTAFF, Ariz.— After a reconsideration forced by environmentalists' objections, the Coconino National Forest today issued a decision that abandons a controversial new wildlife rule in a timber sale near Flagstaff — the first time the agency tried implementing the new rule, which affects 11 national forests in the Southwest.

The wildlife rule, introduced in 2007 as a regional "implementation guide," rewrites, weakens and violates a 1996 rule establishing standards and guidelines for all southwest national forest plans guiding management of habitat for northern goshawk and its prey. The 1996 standards and guidelines, drawn up in response to litigation pressed by the Center for Biological Diversity, regulate logging intensity. The new 2007 goshawk guidelines, which would have applied to ponderosa pine and mixed-conifer forests across Arizona and New Mexico, would have sharply increased large-tree logging and reduced forest canopy to as little as 10 percent.

"The illegal new goshawk guidelines allow logging big trees at the peril of mature forests and wildlife across two states," said Taylor McKinnon, public lands director for the Center for Biological Diversity, "We're relieved that the Forest Service's analysis demonstrated that their own new guidelines are illegal."

Today's decision means the Forest Service must abandon the new rule in the first project in which the agency attempted to implement it: the Jack Smith timber sale on the Coconino National Forest near Flagstaff. The Forest Service was forced to reanalyze the timber sale following objections by the Center and WildEarth Guardians in 2007. In its reanalysis, the Forest Service concluded it could not lawfully implement the new goshawk guidelines without first changing the 1996 standards and guidelines. In response, the agency abandoned its proposal and the new rule and wrote a new proposal intended to comply with forest-plan standards and guidelines.

"If the new rule can't be used legally here, it can't be used in any Arizona or New Mexico national forest," McKinnon said. "Today's decision confirms what we've been saying for a year now: the new rule is illegal, it would harm public forests and wildlife, and it should be formally withdrawn."

New guidelines had no public or environmental review

Since the Jack Smith timber sale decision, the agency's regional silviculturalist who spearheaded the new goshawk guidelines has taken a timber industry job. The silviculturalist, Marlin Johnson, now is seeking approval for logging on tribal lands and the same national forests in which he attempted to ease logging restrictions. E-mails obtained by the Center reveal that Johnson even pushed other Forest Service officials to implement the new guidelines, despite concerns they would violate regional forest plans.

In one exchange, an official stated: "I still worry that some environmental groups can still challenge us on whether we are correctly interpreting forest plan guidelines as they were originally intended." Johnson replied: "I know there is going to be some worry about the interpretation… Let's just make sure we do quality NEPA and other analysis on the first ones."

Under Johnson's direction, the new goshawk guidelines were developed exclusively by regional Forest Service timber staff in Albuquerque. The process excluded state and federal biologists and sidestepped formal environmental and public review required by the National Environmental Policy Act. In response to Freedom of Information Act requests by the Center, Forest Service records claim that the agency neither offered nor received feedback on draft copies of the rule from state and federal wildlife agencies. But, records obtained through requests to Arizona's Game and Fish Department show that state biologists repeatedly expressed concerns to Forest Service officials over the new rules' impact on wildlife.

The Forest Service's unilateral approach in this case marks a sharp departure from regional forest policies that encouraged collaboration and cooperation to replace animosity and stalemate in efforts to restore the region's degraded ponderosa pine forests.

"In a region perilously unable to restore millions of acres of degraded forests, this comes as an astounding distraction that threatens fragile agreements upon which restoration ultimately depends," McKinnon said.

Jack Smith timber sale still targets big trees

Although the Forest Service abandoned the new goshawk guidelines in the Jack Smith timber sale, the revised plan still would allow logging of an undisclosed number of trees that are more than 24 inches in diameter.

"The irony here is that major restoration industry players and environmentalists agree on the need to protect large trees, and in other parts of the Southwest that agreement is yielding good restoration," McKinnon said. "But as if a century of mismanaging forests weren't enough, the Coconino National Forest now stands in the way of those forests' restoration by insisting on logging big trees."

The Center for Biological Diversity, a national nonprofit conservation organization with more than 180,000 members and online activists dedicated to the protection of endangered species and wild places.

August 19, 2008

Mining companies stake claims on federal land adjoining the park, while opponents say drinking water will be at risk.

By Mark Clayton

GRAND CANYON NATIONAL PARK, ARIZ.

A sign warns: "Remain behind fence – environmental evaluation in progress." In the canyon hundreds of feet below, another sign by gurgling Horn Creek instructs thirsty hikers not to drink its radioactive water.

Even so, Horn Creek eventually splashes its way to the canyon bottom and into the Colorado River, a vital water source for 25 million people from Las Vegas to Los Angeles toSan Diego. In that mighty river, the Orphan's radioactive dribble is diluted to insignificance.

But what if a dozen or even scores of new uranium mines were leaching uranium radioisotopes into this critical water source? That is what Arizona's governor, water authorities in two states, scientists, environmentalists, and Congress are all worried about. Should they be?

Everybody from mining-industry officials to environmentalists agrees that the Orphan mine is a poster child for the bad old days of uranium mining going back to the 1950s. Today's regulations and newer mining techniques make such pollution far less likely, industry officials say, though environmentalists vehemently disagree. The question remains: Is Orphan only a vision of the past – or is it a vision of the future, too?

The US Southwest may be about to find out. Driven by soaring uranium prices and fresh interest in nuclear power, mining companies have staked more than 10,600 exploratory mineral claims – most of them smaller than five acres – spread across 1 million acres of federal land adjacent to the Colorado River and Grand Canyon National Park, a federal official told Congress in June. Most are uranium claims, though some may be for other metals, observers say.

Such numbers and testimony about pollution have begun to move Congress. Following congressional hearings, the House Natural Resources Committee in late June declared an emergency withdrawal of 1 million acres from any mining claims. The federal land in question is on the north and south rims of the Grand Canyon, just outside the national park, through which the Colorado River flows.

While a federal lawsuit and injunction have temporarily stalled uranium development in the national forest on the south rim, Congress's action is being resisted by the Bush administration on the north rim.

There, lands controlled by the Bureau of Land Management are unaffected by the lawsuit to the south and exploration claims are still being processed routinely.

One such claim, by Quaterra Alaska Inc., the US subsidiary of Vancouver-based Quaterra Resources, Inc., was approved for exploratory drilling on June 27 – just two days after the House's Natural Resources Committee vote that should have stopped such action.

A Department of Interior spokesman says the BLM is still processing claims because the agency doesn't consider the Congressional vote valid. In a July letter it argued that the committee didn't have a quorum, a point disputed by the committee's chairman and the House parliamentarian.

Mining regulations are tougher now

"They are charging forward," says Taylor McKinnon, public lands director for the Center for Biological Diversity, an environmental group based in Tucson, Ariz.

Last month, the US Department of Energy approved 42 square miles for an expanded uranium mining program in the watershed of the DoloresRiver, a tributary of the Colorado. But the question of what impact dozens of new uranium mines across the entire Colorado River watershed might have – an environmental disaster or an energy bonanza with few ill effects – remains hotly debated.

"Old mines like the Orphan were mined in the 1950s under no federal regulations whatsoever," says Eugene Spiering, vice president of exploration for Quaterra. "Most mines today are above the water table, which makes chances of leakage practically nil. What we have now is a well-regulated industry."

Still, there has been no regionwide environmental assessment of the likely impact of a new uranium mining boom on the Colorado River, close observers say. Nor is such an evaluation apparently of much interest to federal land managers, if comments on the subject by a Department of Interior spokesman are any guide.

"We already have the Clean Water Act, the National Environmental Policy Act, and others that require comprehensive analyses before any mining is done, so there won't be impacts to the environment," says Chris Paolino, a spokesman for the Department of Interior. "At this time we're still evaluating plans on an individual basis, but [a regional study is] not something I can rule out."

"We hear from the industry and federal government that today 'we can do it safely,' " says Roger Clark, air and energy director for the Grand Canyon Trust, an environmental watchdog group. "But the burden of proof is on the proponents. Somebody needs to ask, 'What is the cumulative threat to drinking water in the Colorado River – not just from radioactivity, but from arsenic and mercury from these mines?'"

Some are asking for exactly such a study. With cities like Phoenix relying on clean Colorado River water, Arizona Gov. Janet Napolitano (D) is calling for an "overall environmental im��pact analysis," citing the uranium boom's "potential to seriously harm" the water quality of Grand Canyon National Park and the Lower Colorado River.

Uranium company officials say fears about radioactive contamination are overblown. New mining methods, far tougher environmental standards, and desert-dry conditions for most mines mean minimal risk to the Colorado River and the region's precious groundwater resources, they say.

"Yes, there were issues in the past," says Ron Hochstein, president of Denison Mines, a Toronto-based company with at least nine mines under development in the area targeted by Congress. "But that's not the way we do things today. We understand and know a lot more about uranium, radium, and radon and the impacts of those. So to say some things that happened in the 1950s and 1960s will happen again today is not a good comparison."

Proven deposits are likely to be mined

Whether or not the thousands of unproven claims are ever developed, a fair number of uranium mining sites seem almost certain to reemerge. "Congress's action only applies to unproven claims," Mr. Clark points out, leaning against a fence at the Canyon Mine site.

Denison's group of established mine sites – including the Canyon Mine in the Kaibab National Forest a few miles south of the park – are among those likely to reemerge. The Canyon Mine was mothballed in the 1980s – before it had even opened – because of sinking uranium prices. It is a proven site: Uranium is there. Denison must still apply for new state environmental permits in order to proceed, but expects its mines to begin opening around 2010.

Despite Horn Creek pollution, the good news is that recent studies have shown that most springs and creeks in the Grand Canyon still have good water quality: Uranium and other trace metals appear in low concentrations, according to congressional testimony.

The bad news, experts say, is that digging into the cylindrical vertical rock formations in which uranium is found – they're called "breccia pipes" – can "mobilize" the uranium, causing it to oxidize when water from periodic downpours seeps down through the rock strata.

Indeed, the negative impact of water on uranium mines should not be minimized even in the desert, says Chris Shuey, a scientist who directs the Uranium Impact Assessment Program, a nonprofit research and information center. His research in the Churchrock area of the Navajo Nation near Gallup, N.M. – where uranium was mined and processed between 1952 and 1983 – showed statistically significant effects on human health from the elevated levels of radioactivity in the region.

While much uranium in the region does occur in formations above the water table, the bottom of the breccia pipes are located in the upper portion of the Redwall Limestone, a principal aquifer supplying springs in the Grand Canyon and wells for much of the region, Dr. Shuey told Congress in March.

"When you take uranium and the other trace elements out of their resting places in nature and expose them to the environment," Shuey says by phone, "you expose them in higher concentrations to the environment and intensify their effects. People don't appreciate the cumulative impact of mining in a consolidated area. There's a very real threat." A flash flood swept through Havasu Creek last week. That same watershed includes the Canyon Mine and numerous uranium claims.

Abe Springer, a hydrologist and researcher at NorthernArizona University at Flagstaff, has made a career studying the movement of groundwater through the Redwall and other aquifers into seeps and springs that supply not only hikers, but also most of the region's animal life with the water they need to survive.

"Once these elements became mobile through mining activities," Dr. Springer told Congress in his March testimony, "they would continue to be mobile through the aquifer and eventually discharge in springs impacting the human uses of water of these springs."

Even so, some industry figures dispute any connection between the Orphan uranium mine and higher radiation in Horn Creek.

A "fact sheet" e-mailed by Quaterra's Mr. Spiering says, regarding water pollution, that "statements that the historic operations at the Orphan Mine have been polluting Horn Creek are false." It cites a 2004 US Geological Survey study showing dissolved uranium in a range from 8.6 to 29 parts per billion and "within the EPA levels of safe drinking water."

Closer look at USGS study

But a closer examination of the 2004 results finds that some uranium concentrations are at the upper end of the safe range for Horn Creek.

The same study's results for nearby Salt Creek (at 29 to 31 p.p.b.) "approached or exceeded the US Environmental Protection Agency's drinking water standard" of 30 p.p.b., according to Shuey's testimony to Congress.

The two creeks – Salt and Horn – also had by far the highest levels of the 20 springs and seeps tested in that study, Shuey testified. That USGS study also did not seek to assign causes of the higher radiation levels, he noted.

But the potential impact of tainted groundwater on native Americans, hikers, and local wildlife – as well as major cities downstream – are all reasons Rep. R�ul Grijalva (D) of Arizona has sponsored legislation to permanently withdraw federal land around Grand Canyon National Park from uranium mining.

"I hope we've matured enough not to forget history," Representative Grijalva says in a phone interview. "Protection of water quality in the Colorado River is vital to the long-term health and safety of humans and other species. We can't afford to simply issue permits and decades from now simply dismiss the consequences as unintended.

"We should know better than that."

     House Republicans are contending – and the Interior Department appears to agree – that a House committee order to withdraw land near ..:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />Grand Canyon is not binding on the Interior Department.  Committee Democrats vigorously disagree...:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

     House Natural Resources Committee Republicans are circulating a new Congressional Research Service (CRS) memo that suggests the department can ignore the order from the committee because the order is unconstitutional.

     CRS held in the June 20 memorandum that for a withdrawal order to be constitutional both houses of Congress must pass legislation (bicameral approval it's called.) 

     Said CRS, "Accordingly, should such a resolution be adopted it appears likely that the Secretary would be well within his authority to interpret it as informational and/or advisory in nature and, thus, will be able to avoid taking the actions contemplated under the statute.  Should Congress wish to impose a binding legal obligation on the Secretary it could opt either to pass a joint resolution or a bill, both of which satisfy the bicameralism and presentment requirements of Article I, . . ."

     The Department of Interior apparently has its doubts about the order's legality also.  "We're reviewing the resolution particularly in light of a 1983 (Reagan administration) Justice Department opinion suggesting these types of resolutions are unconstitutional," said a department spokesman.  "Then we'll decide how to proceed."

     That Sept. 12, 1983, Justice Department decision by Ralph W. Tarr, deputy assistant attorney general at the time, cited Supreme Court precedence for doubting the provision's legality.  Tarr said, "There remains no doubt that the power to direct withdrawal of lands granted to a single Congressional Committee by §204(e) is, by its terms, a legislative veto and is unconstitutional under Chadha."  The Chadha decision is cited as INS v. Chadha, 51 U.S.L.W. 4907 (June 23, 1983.)

     House Natural Resources Committee Democrats disagree.  They cite two previous committee withdrawals that were upheld explicitly by the courts.  In one instance in 1983 the committee withdrew lands in the Fort Union Coal Region in Montana and North Dakota.  A committee analysis says court precedence from that case holds that the courts would uphold the withdrawal authority if Congress acted as a landowner.  But the analysis did warn that a withdrawal as an "exercise of power" by Congress would probably violate Chadha.  That decision is identified as National Wildlife Federation v. Watt, 571 F. Supp. 1145.

     The other precedent came in 1981 when the committee withdrew from mineral leasing portions of wilderness in Montana.  A court upheld the resolution in Pacific Legal Foundation v. Watt, 529 F. Supp. 982.

     The counterpart Senate Energy Committee has no plans to address the issue, said a committee spokesman.  The House committee action requires no action by the Senate panel, he noted.

     At issue is a June 25 order of the House Natural Resources Committee that directs the Interior Department to withdraw from hard rock mining 1 million acres of public lands near Grand Canyon National Park.

     The Democrats say the provision is binding on Interior under a withdrawal provision of the Federal Land Policy and Management Act of 1976 (FLPMA), Section 204 (e).  The provision authorizes the House committee and the Senate Energy Committee to order Interior to make emergency withdrawals that last up to three years.  No further Congressional action is necessary.

     But committee Republicans argued the Interior Department does not have to comply because the order is unconstitutional.  They objected so strongly to the use of a resolution to invoke the withdrawal that they walked out of the June 25 meeting. 

     The resolution sponsor, Rep. Raúl M. Grijalva (D-Ariz.), said he was concerned about the impact of uranium mining proposals on the park.  He said his resolution would have little effect on existing claims but could head off future claims.  Grijalva said the withdrawal resolution would protect the land until Congress could consider his formal legislation to mandate the withdrawal of 1,068,908 acres, HR 5583.

     Arizona Gov. Janet Napolitano (D) added her concerns earlier this spring when she asked Secretary of Interior Dirk Kempthorne to (1) withdraw additional lands in the area from the staking of mining claims and (2) prepare an EIS on the overall impact of uranium mining around the park. 

     Interest groups chose predicable sides of the argument.  The National Mining Association (NMA) opposed the withdrawal.  NMA President Kraig R. Naasz wrote all House committee members before the vote and said, "Closures of federal land based on vague and subjective criteria will threaten both mineral and economic development in the United States and is bad public policy."

     The environmental group Earthworks praised the House committee for defending Grand Canyon National Park.  "Over the past five years, the threat of uranium development outside (the park's) borders has increased more than a hundredfold," said Lauren Pagel, Earthworks' legislative director.

     In recent years the demand for uranium has caused an explosion in uranium mining claims on public lands.  At a March 12 hearing of the Senate Energy Committee BLM said that uranium claims make up an increasingly large percentage of all hard rock claims.  BLM estimated that 40-50 percent of 92,000 new mining claims in fiscal year 2007 were for uranium.  The Environmental Working Group said 2,215 new mining claims have been filed within 10 miles of Grand Canyon National Park since 2003 and that 805 of those claims are within 5 miles of the park.

The Arizona Republic
Jun. 26, 2008 12:00 AM

Ginger D. Richardson
The Arizona Republic
Jun. 26, 2008 12:00 AM

(Note: Burch/BLM description downplays the legislation; the bill would preclude new mining claims and exploration and mining of claims for which valid existing rights have not been established.  Thus, because establishing valid existing rights requires exploration, and because the vast majority of claims in the withdrawal boundary have not been explored or verified, the bill will be far more impactful than implied below.)

(06/02/2008)

Eric Bontrager

More than 1 million acres of public land adjacent to Grand Canyon National Park may soon be protected from new mining claims under legislation the House Parks Subcommittee will consider this week.

The bill from subcommittee chairman Raúl Grijalva, H.R. 5583, would withdraw three parcels of Forest Service and Bureau of Land Management lands from future mining: the Tusayan Ranger District of the Kaibab National Forest south of the canyon, the Kanab Creek watershed north of the park, and House Rock Valley, between the park and Vermilion Cliffs National Monument.

Grijalva introduced the bill following controversy over the Forest Service's approval of plans by a British mining company to explore for uranium south of the park last year, which critics say was done without adequate environmental review or public comment.

A federal judge in April issued a temporary restraining order and preliminary injunction against the company -- VANE Minerals Group PLC -- after environmental groups sued (Greenwire, April 7).

Rachel Kondor, Grijalva's senior legislative assistant, said the legislation is meant to close the last remaining gaps of land around the park that have not been withdrawn from mining.

Arizona Gov. Janet Napolitano (D) sent a letter to Interior Secretary Dirk Kempthorne in March requesting these areas be administratively withdrawn from mining on an expedited basis.

A 15-fold increase in uranium prices in the past eight years has sparked a surge in new uranium development, with thousands of new claims near the canyon and surrounding watersheds.

But withdrawing the lands will only prohibit new mining claims in the three parcels. According to Alvin Burch, group manager for renewable and mineral resources at BLM's Arizona office, there are between 8,000-10,000 existing mining claims in the proposed withdrawal area. The claims are not only for uranium, but also gypsum, thorium and gold.

Burch said those claims will remain valid as long as the required fees and paperwork are maintained and the law would not affect any operations in the areas that have already been approved.

However, if the owners of any of those claims in the withdrawal area want to develop them, the claims must undergo the additional burden of a validity examination, where land officials go out to the claim and determine whether it is an economically viable and valid existing right. If a claim is determined invalid, it could be permanently withdrawn.

While it is not unusual to withdraw large acreages of land for different purposes like an Indian reservation or a gunnery range, Burch said he was unsure whether there has ever been large-scale withdraw for the explicit purpose of prohibiting mining.

BLM issues mammoth plan for two monuments, millions of acres in Ariz.

(05/15/2008)

By April Reese for the Land Letter

A trio of new management plans covering two national monuments and millions of acres of federal lands in a remote but fast-growing area north of the Grand Canyon in Arizona favor human activity at the expense of wildlife habitat and wilderness-quality lands, critics contend.

The plans, issued May 9 and assessed in a single environmental impact statement, cover 2.8 million acres of BLM land stretching north from the Grand Canyon to Arizona's border with Utah. They include a revised resource management plan for 1.7 million acres under the purview of the Arizona Strip field office and new plans for Vermillion Cliffs and Grand Canyon-Parashant monuments, both created by President Clinton at the end of his term in 2000.

All three plans lay out how the agency will manage the areas over the next 20 years or so. In general, the plans emphasize minimal "human influence and use" in remote areas and greater use in areas near local communities or in areas that are already seeing significant use, according to the EIS.

Diana Hawks, who led the planning team that crafted the hefty, 3,000-page document, said the plans reflect extensive public input and collaboration with 10 different agencies and tribes. "It was a very good planning effort," she said.

A litany of criticisms

But environmental groups take issue with almost every aspect of the plans, from wilderness delineations to off-highway vehicle use to habitat protection.

Nada Culver, an attorney with the Wilderness Society's Denver office, said the plans allow for off-highway vehicle use on dirt roads, which were supposed to be off-limits under the presidential proclamations that created the monuments under the Antiquities Act.

"There's kind of a disconnect between the vision that drove the creation of the monuments and the actual management of the monuments," Culver said.

Specifically, the plan allows off-roading on more than 1,700 miles of trails and primitive roads in the monuments and across other areas of the Arizona Strip, flouting the proclamations' directive to keep off-roading activity to developed roads, according to TWS's critique.

Wildlife is also at risk under the plans, said Taylor McKinnon of the Center for Biological Diversity. Under the plans, wildlife habitat could be fragmented and noise levels could increase, potentially harming the endangered desert tortoise, southwestern willow flycatcher, yuma clapper rail and nine other imperiled species, he said.

"These plans need to put habitat needs of imperiled species before use and development interests," McKinnon said. "That has not happened."

Wilderness is another sticking point. Kevin Gaither-Banchoff, executive director of the Arizona Wilderness Coalition, said he is disappointed that BLM's plan includes 27 percent of the land the group had identified as having wilderness potential.

"People here love their wilderness lands and think more should be preserved," Gaither-Banchoff said. "It's BLM's responsibility as a public agency to protect what Arizona citizens want and deserve."

Hawks said that while the coalition's wilderness proposal was "very good," BLM winnowed down some of the acreage because field assessments by the agency revealed that some areas did not meet BLM's criteria for wilderness-quality lands. The agency also needed to take into account other uses, she added. (BLM identifies and recommends wilderness, but only Congress can designate an official wilderness area.)

On the roads issue, Hawks said the two monument plans limit vehicle access to designated routes. "There's no off-roading," she said. The groups are using the Wilderness Act's definition of "road," she said, but BLM includes dirt roads and two tracks that show regular use in the designated road system for monuments. The BLM is still working on a travel management plan for most of the Arizona Strip, she added.

Hawks also defended the plans' treatment of threatened and endangered species, noting that the U.S. Fish and Wildlife Service reviewed the plans and issued a determination that their management prescriptions would not jeopardize the species.

Development pressure

The plans have received significant scrutiny in part because they address an unusually large, undeveloped area, and in part because its rural nature is changing. While the Arizona Strip is one of the wildest areas of the state -- or the greater Southwest -- the population within the five counties in the area is expected to double by 2020, with the addition of 1.4 million new residents. The city of St. George, Utah, just north of "the strip," is one of the fastest-growing cities in the region, multiplying by 90 percent every decade. That growth is expected to place new recreation pressures on the Arizona Strip.

"In 1966 we had about 8,000 people, and now there's about 160,000 or more," said Alan Gardner, who runs cattle on the Arizona Strip and is a commissioner in Washington County, for which St. George is the county seat. Gardner said he has not had a chance to read the plans but said better management is needed. "There's more pressure on everything," he said.

The plans are now in a 30-day appeal period. Critics of the plans say they hope to enter into discussions with BLM to address their concerns, although Culver said she would not rule out an appeal if those talks are unproductive.

Click here to read the plans.

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The rush to pull uranium out of the West will put national park, Colorado River in danger

Outrage over plans to extract uranium ore from the Grand Canyon