49 Stat. 1250; 25 U.S.C. 473a; 49 Stat.

[Title 25 CFR sec. 1,]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter I - ENERGY AND MINERALS]
[Sec. 1, - 49 Stat. 1250; 25 U.S.C. 473a; 49 Stat.]
[From the U.S. Government Publishing Office]

25INDIANS12004-04-012004-04-01false49 Stat. 1250; 25 U.S.C. 473a; 49 Stat.sec. 1,sec. 1,INDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIORENERGY AND MINERALS
PART 216_SURFACE EXPLORATION, MINING, AND RECLAMATION OF LANDS
--Table of Contents

Subpart A_General Provisions

Sec.
216.1 Purpose.
216.2 Scope.
216.3 Definitions.
216.4 Technical examination of prospective surface exploration and
mining operations.
216.5 Basis for denial of a permit or lease.
216.6 Approval of exploration plan.
216.7 Approval of mining plan.
216.8 Performance bond.
216.9 Reports.
216.10 Inspection: Notice of noncompliance: Revocation.
216.11 Appeals.
216.12 Consultation.

Authority: 34 Stat. 539, 35 Stat. 312; 25 U.S.C. 355 NT; 35 Stat
781; 25 U.S.C. 396; sec. 1, 49 Stat. 1250; 25 U.S.C. 473a; 49 Stat.
1967, 25 U.S.C. 501, 502; 52 Stat. 347, 25 U.S.C. 396a-f; 5 U.S.C. 301.

Subpart A_General Provisions

Source: 34 FR 813, Jan. 18, 1969, unless otherwise noted.
Redesignated at 42 FR 63394, Dec. 16, 1977; and further redesignated at
47 FR 13327, Mar. 30, 1982.

Sec. 216.1 Purpose.

It is the policy of this Department to encourage the development of
the mineral resources underlying Indian lands where mining is
authorized. However, interest of the Indian owners and the public at
large requires that, with respect to the exploration for, and the

[[Page 605]]

surface mining of, such minerals, adequate measures be taken to avoid,
minimize, or correct damage to the environment--land, water, and air--
and to avoid, minimize, or correct hazards to the public health and
safety. The regulations in this part prescribe procedures to that end.

Sec. 216.2 Scope.

(a) Except as provided in paragraph (b) of this section, the
regulations in this part provide for the protection and conservation of
nonmineral resources during operations for the discovery, development,
surface mining, and onsite processing of minerals under permits or
leases issued pursuant to statutes pertaining to Indian lands including
but not limited to the following statutes or amendments thereto:

The Act of June 28, 1906 (34 Stat. 539);
The Act of May 27, 1908 (35 Stat. 312);
The Act of March 3, 1909 (35 Stat. 781, 25 U.S.C. 396);
The Act of May 1, 1936 (49 Stat. 1250);
The Act of June 26, 1936 (49 Stat. 1967);
The Act of May 11, 1939 (52 Stat. 347, 25 U.S.C. 396a-f, and 5
U.S.C. 301).
(b) The regulations in this part do not cover the exploration for
oil and gas or the issuance of leases, or operations thereunder, nor
minerals underlying lands, the surface of which is not owned by the
owner of the minerals.
(c) The regulations in this part shall apply only to permits or
leases issued subsequent to the date on which these regulations become
effective and which are subject to the approval of the Secretary of the
Interior or his designated representative.

Sec. 216.3 Definitions.

As used in the regulations in the part:
(a) Superintendent means the superintendent or other officer of the
Bureau of Indian Affairs having jurisdiction under delegated authority,
over the lands involved.
(b) Mining supervisor means the Regional Mining Supervisor, or his
authorized representative, of the Geological Survey authorized as
provided in 30 CFR 211.3 and 231.2 to supervise operations on the land
covered by a permit or lease.
(c) Overburden means all the earth and other materials which lie
above a natural deposit of minerals and such earth and other materials
after removal from their natural state in the process of mining.
(d) Area of land to be affected or area of land affected means the
area of land from which overburden is to be or has been removed and upon
which the overburden or waste is to be or has been deposited, and
includes all lands affected by the construction of new roads or the
improvement or use of existing roads to gain access to an operation and
for haulage.
(e) Operation means all of the premises, facilities, roads, and
equipment used in the process of determining the location, composition
or quality of a mineral deposit, or in developing, extracting, or onsite
processing of a mineral deposit in a designated area.
(f) Method of operation means the method or manner by which a cut or
open pit is made, the overburden is placed or handled, water is
controlled or affected and other acts performed by the operator in the
process of exploring or uncovering and removing or onsite processing of
a mineral deposit.
(g) Holder or operator means the permittee or lessee designated in a
permit or lease.
(h) Reclamation means measures undertaken to bring about the
necessary reconditioning or restoration of land or water that has been
affected by exploration or mineral development, mining or onsite
processing operations, and waste disposal, in ways which will prevent or
control onsite and offsite damage to the environment.

Sec. 216.4 Technical examination of prospective surface exploration
and mining operations.

(a)(1) In connection with an application for a permit or lease, the
superintendent shall make, or cause to be made, a technical examination
of the prospective effects of the proposed exploration or surface mining
operations upon the environment. The technical examination shall take
into consideration the need for the preservation and protection of other
resources, including cultural, recreational, scenic, historic, and
ecological values; and control of

[[Page 606]]

erosion, flooding, and pollution of water; the isolation of toxic
materials; the prevention of air pollution; the reclamation by
revegetation, replacement of soil or by other means, of lands affected
by the exploration or mining operations; the prevention of slides; the
protection of fish and wildlife and their habitat; and the prevention of
hazards to public health and safety.
(2) A technical examination of an area should be made with the
recognition that actual potential mining sites and mining operations
vary widely with respect to topography, climate, surrounding land uses,
proximity to densely used areas, and other environmental influences and
that mining and reclamation requirements should provide sufficient
flexibility to permit adjustment to local conditions.
(b) Based upon the technical examination, the superintendent shall
formulate the general requirements which the applicant must meet for the
protection of nonmineral resources during the conduct of exploration or
mining operations and for the reclamation of lands or waters affected by
exploration or mining operations. The general requirements shall be made
known in writing to the applicant before the issuance of a permit or
lease and upon acceptance thereof by the applicant, shall be
incorporated in the permit or lease.
(c) In each instance in which an application is made the mining
supervisor shall participate in the technical examination and in the
formulation of the general requirements.
(d) The superintendent may prohibit or otherwise restrict operations
on any part of an area whenever it is determined that such part of the
area described in an application for a permit or lease is such that
previous experience under similar conditions has shown that operations
cannot feasibly be conducted by any known methods or measures to avoid--
(1) Rock or landslides which would be a hazard to human lives or
endanger or destroy private or public property; or
(2) Substantial deposition of sediment and silt into streams, lakes,
reservoirs; or
(3) A lowering of water quality below standards established by the
appropriate State water pollution control agency, or by the Secretary of
the Interior, or his authorized representative; or
(4) A lowering of the quality of waters whose quality exceeds that
required by the established standards--unless and until it has been
affirmatively demonstrated to the Secretary of the Interior, or his
authorized representative, that such lowering of quality is necessary to
economic and social development and will not preclude any assigned uses
made of such waters; or
(5) The destruction of key wildlife habitat or important scenic,
historical, or other natural or cultural features.
(e) If, on the basis of a technical examination, the superintendent
determines that there is a likelihood that there will be a lowering of
water quality as described in paragraphs (d) (3) and (4) of this section
caused by the operation, no lease or permit shall be issued until after
consultation with the Federal Water Pollution Control Administration and
a finding by the Administration that the proposed operation would not be
in violation of the Federal Water Pollution Control Act, as amended (33
U.S.C. 466 et seq.), or of Executive Order No. 11288 (31 FR 9261). Where
a permit or lease is involved the Superintendent's determination shall
be made in consultation with the mining supervisor.

Sec. 216.5 Basis for denial of a permit or lease.

An application for a permit or lease to conduct exploratory or
mining operations may be denied any applicant who has forfeited a
required bond because of failure to comply with a mining plan. However,
a permit or lease may not be denied an applicant because of the
forfeiture of a bond if the lands disturbed under his previous permit or
lease have subsequently been reclaimed without cost to the lessor or the
United States.

Sec. 216.6 Approval of exploration plan.

(a) Before commencing any surface disturbing operations to explore,
test or prospect for minerals, the operator shall file with the mining
supervisor a plan for the proposed exploration operations. The mining
supervisor shall

[[Page 607]]

consult with the superintendent with respect to the surface protection
and reclamation aspects before approving said plan.
(b) Depending upon the size and nature of the operation and the
requirements established pursuant to Sec. 216.4 the mining supervisor
may require that the exploration plan submitted by the operator include
any or all of the following:
(1) A description of the area within which exploration is to be
conducted;
(2) Two copies of a suitable map or aerial photograph showing
topographic, cultural and drainage features;
(3) A statement of proposed exploration methods; i.e., drilling,
trenching, etc., and the location of primary support roads and
facilities;
(4) A description of measures to be taken to prevent or control
fire, soil erosion, pollution of surface and ground water, damage to
fish and wildlife or other natural resources, and hazards to public
health and safety both during and upon abandonment of exploration
activities.
(c) The mining supervisor shall promptly review the exploration plan
submitted to him by the operator and shall indicate to the operator any
changes, additions, or amendments necessary to meet the requirements
formulated pursuant to Sec. 216.4, the provisions of these regulations,
and the terms of the permit.
(d) The operator shall comply with the provisions of an approved
exploration plan. The mining supervisor may, with respect to such a
plan, exercise the authority provided by paragraphs (f) and (g) of Sec.
216.7 respecting a mining plan.

Sec. 216.7 Approval of mining plan.

(a) Before surface mining operations may commence under any permit
or lease, the operator must file a mining plan with the mining
supervisor and obtain his approval of the plan. The mining supervisor
shall consult with the superintendent with respect to the surface
protection and reclamation aspects before approving said plan.
(b) Depending on the size and nature of the operation and the
requirements established pursuant to Sec. 216.4 the mining supervisor
may require that the mining plan submitted by the operator include any
or all of the following:
(1) A description of the location and area to be affected by the
operations;
(2) Two copies of a suitable map, or aerial photograph showing the
topography, the area covered by the permit or lease, the name and
location of major topographic and cultural features, and the drainage
plan away from the area affected;
(3) A statement of proposed methods of operating, including a
description of proposed roads or vehicular trails; the size and location
of structures and facilities to be built;
(4) An estimate of the quantity of water to be used and pollutants
that are expected to enter any receiving waters;
(5) A design for the necessary impoundment, treatment or control of
all runoff water and drainage from workings so as to reduce soil erosion
and sedimentation and to prevent the pollution of receiving waters;
(6) A description of measures to be taken to prevent or control
fire, soil erosion, pollution of surface and ground water, damage to
fish and wildlife, and hazards to public health and safety; and
(7) A statement of the proposed manner and time of performance of
work to reclaim areas disturbed by the holder's operation.
(c) In those instances in which the permit or lease requires the
revegetation of an area of land to be affected, the mining plan shall
show:
(1) Proposed methods of preparation and fertilizing the soil prior
to replanting;
(2) Types and mixtures of shrubs, trees, or tree seedlings, grasses
or legumes to be planted; and
(3) Types and methods of planting, including the amount of grasses
or legumes per acre, or the number and spacing of trees, or tree
seedlings, or combinations of grasses and trees.
(d) In those instances in which the permit or lease requires
regrading and backfilling, the mining plan shall show the proposed
methods and the timing of grading and backfilling of areas of land to be
affected by the operation.

[[Page 608]]

(e) The mining supervisor shall review the mining plan submitted to
him by the operator and shall promptly indicate to the operator any
changes, additions, or amendments necessary to meet the requirements
formulated pursuant to Sec. 216.4, the provisions of these regulations
and the terms of the permit or lease. The operator shall comply with the
provisions of an approved mining plan.
(f) A mining plan may be changed by mutual consent of the mining
supervisor and the operator at any time to adjust to changed conditions
or to correct any oversight. To obtain approval of a change or
supplemental plan, the operator shall submit a written statement of the
proposed changes or supplement and the justification for the changes
proposed. The mining supervisor shall promptly notify the operator that
he consents to the proposed changes or supplement, or in the event he
does not consent, he shall specify the modifications thereto under which
the proposed changes or supplement would be acceptable. After mutual
acceptance of a change of a plan, the operator shall not depart
therefrom without further approval.
(g) If circumstances warrant or if development of a mining plan for
the entire operation is dependent upon unknown factors which cannot or
will not be determined except during the progress of the operations, a
partial plan may be approved and supplemented from time to time. The
operator shall not, however, perform any operation except under an
approved plan.

Sec. 216.8 Performance bond.

(a) Upon approval of an exploration plan or mining plan, the
operator shall be required to file a suitable performance bond of not
less than $2,000 with satisfactory surety, payable to the Secretary of
the Interior, and the bond shall be conditioned upon the faithful
compliance with applicable regulations, the terms and conditions of the
permit, lease, or contract, and the exploration or mining plan as
approved, amended or supplemented. The bond shall be in an amount
sufficient to satisfy the reclamation requirements established pursuant
to an approved exploration or mining plan, or an approved partial or
supplemental plan. In determining the amount of the bond consideration
shall be given to the character and nature of the reclamation
requirements and the estimated costs of reclamation in the event that
the operator forfeits his performance bond. In lieu of a surety bond an
operator may elect to deposit cash or negotiable bonds of the U.S.
government. The cash deposit or the market value of such securities
shall be equal at least to the required sum of the bond.
(b) In a particular instance where the circumstances are such as to
warrant an exception, the amount of the bond for a particular operation
may be reduced to less than the required minimum of $2,000.
(c) The superintendent shall set the amount of a bond and take the
necessary action for an increase or for a complete or partial release of
a bond. He shall take action with respect to bonds for leases or permits
only after consultation with the mining supervisor.

Sec. 216.9 Reports.

(a) Within 30 days after the end of each calendar year, or if
operations cease before the end of a calendar year, within 30 days after
the cessation of operations, the operator shall submit an operations
report to the mining supervisor containing the following information:
(1) An identification of the permit or lease and the location of the
operation.
(2) A description of the operations performed during the period of
time for which the report is filed.
(3) An identification of the area of land affected by the operations
and a description of the manner in which the land has been affected.
(4) A statement as to the number of acres disturbed by the
operations and the number of acres which were reclaimed during the
period of time.
(5) A description of the method utilized for reclamation and the
results thereof.
(6) A statement and description of reclamation work remaining to be
done.
(b) Upon completion of such grading and backfilling as may be
required by

[[Page 609]]

an approved exploration or mining plan, the operator shall make a report
thereon to the mining supervisor and request inspection for approval.
Whenever it is determined by such inspection that backfilling and
grading have been carried out in accordance with the established
requirements and approved exploration or mining plan, the superintendent
shall issue a release of an appropriate amount of the performance bond
for the area graded and backfilled. Appropriate amounts of the bond
shall be retained to assure that satisfactory planting, if required, is
carried out.
(c)(1) Whenever planting is required by an approved exploration or
mining plan, the operator shall file a report with the superintendent
whenever such planting is completed. The report shall--
(i) Identify the permit or lease;
(ii) Show the type of planting or seeding, including mixtures and
amounts;
(iii) Show the date of planting or seeding;
(iv) Identify or describe the areas of the lands which have been
planted;
(v) Contain such other information as may be relevant.
(2) The superintendent, as soon as possible after the completion of
the first full growing season, shall make an inspection and evaluation
of the vegetative cover and planting to determine if a satisfactory
growth has been established.
(3) If it is determined that a satisfactory vegetative cover has
been established and is likely to continue to grow, any remaining
portion of the surety bond may be released if all requirements have been
met by the operator.
(d)(1) Not less than 30 days prior to cessation or abandonment of
operations, the operator shall report to the mining supervisor his
intention to cease or abandon operations, together with a statement of
the exact number of acres of land affected by his operations, the extent
of reclamation accomplished and other relevant information.
(2) Upon receipt of such report an inspection shall be made to
determine whether operations have been carried out in accordance with
the approved exploration or mining plan.

Sec. 216.10 Inspection: Notice of noncompliance: Revocation.

(a) The mining supervisor and superintendent shall have the right to
enter upon the lands under a permit or lease, at any reasonable time,
for the purpose of inspection or investigation to determine whether the
terms and conditions of the permit or lease and the requirements of the
exploration or mining plan have been complied with.
(b) If the mining supervisor determines that an operator has failed
to comply with the terms and conditions of a permit or lease, or with
the requirements of an exploration or mining plan, or with the
provisions of applicable regulations, the superintendent shall serve a
notice of noncompliance upon the operator by delivery in person to him
or his agent or by certified or registered mail addressed to the
operator at his last known address.
(c) A notice of noncompliance shall specify in what respects the
operator has failed to comply with the terms and conditions of a permit
or lease or the requirements of an exploration or mining plan, or the
provisions of applicable regulations, and shall specify the action which
must be taken to correct the noncompliance and the time limits within
which such action must be taken.
(d) Failure of the operator to take action in accordance with the
notice of noncompliance shall be grounds for suspension by the mining
supervisor of operations or for the initiation of action for the
cancellation of the permit or lease and for forfeiture of the surety
bond required under Sec. 216.8.

Sec. 216.11 Appeals.

An applicant, permittee, lessee, or lessor aggrieved by a decision
or order of a mining supervisor or superintendent may appeal such
decision or order. An appeal from a decision or order of a
superintendent shall be made pursuant to 25 CFR part 2. An appeal from a
decision or order of a mining supervisor shall be made pursuant to 30
CFR parts 211 and 231.

[[Page 610]]

Sec. 216.12 Consultation.

A superintendent shall consult with the Indian landowner with
respect to actions he proposes to take under Sec. Sec. 216.4, 216.6,
216.7, 216.9, and 216.10.