[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
                         HARDROCK MINING ISSUES

=======================================================================

                                HEARING

                               before the

                         SUBCOMMITTEE ON ENERGY
                         AND MINERAL RESOURCES

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                    SEPTEMBER 22, 1997, ELKO, NEVADA

                               __________

                           Serial No. 105-53

                               __________

           Printed for the use of the Committee on Resources


                                


                      U.S. GOVERNMENT PRINTING OFFICE
 45-477 CC                   WASHINGTON : 1997
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                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona                SAM FARR, California
JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director

                                 ------                                

              Subcommittee on Energy and Mineral Resources

                    BARBARA CUBIN, Wyoming, Chairman
W.J. (BILLY) TAUZIN, Louisiana       CARLOS ROMERO-BARCELO, Puerto Rico
JOHN L. DUNCAN, Jr., Tennessee       NICK J. RAHALL II, West Virginia
KEN CALVERT, California              SOLOMON P. ORTIZ, Texas
WILLIAM M. (MAC) THORNBERRY, Texas   CALVIN M. DOOLEY, California
CHRIS CANNON, Utah                   CHRIS JOHN, Louisiana
KEVIN BRADY, Texas                   DONNA CHRISTIAN-GREEN, Virgin 
JIM GIBBONS, Nevada                      Islands
                                     ------ ------
                    Bill Condit, Professional Staff
                   Sharla Bickley, Professional Staff
                   Deborah Lanzone, Legislative Staff



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held September 22, 1997..................................     1

Statements of Members:
    Cubin, Hon. Barbara, a Representative in Congress from the 
      State of Wyoming...........................................     1
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................     4

Statements of witnesses:
    Blackwell, Jack, Deputy Regional Forester, Intermountain 
      Region, U.S. Forest Service, U.S. Department of Agriculture    49
        Prepared statement of....................................    68
    Carpenter, John, Assemblyman, Nevada Legislature.............    36
        Prepared statement of....................................   260
    Drozdoff, Leo, Bureau Chief, Mining Regulation & Reclamation, 
      Nevada Division of Environmental Protection, Nevada 
      Department of Conservation and Natural Resources...........    47
        Prepared statement of....................................   264
    Espell, Ron A., Environmental Superintendent, Barrick 
      Goldstrike Mines, Inc......................................     7
    Franzoia, Michael J., Mayor, City of Elko....................    35
        Prepared statement of....................................    71
    Gadt, Larry O., Director, Minerals and Geology Management, 
      U.S. Forest Service........................................    52
    Gustin, Gene, Public Land Use Advisory Council to the Elko 
      County Commission..........................................    20
        Prepared statement of....................................    62
    Hackworth, Royce, Chairman, Elko County Commission...........    30
        Prepared statement of....................................    64
    Jones, Martin R., Senior Manager, NV Environmental 
      Compliance, Newmont Gold Co................................    10
        Prepared statement of....................................    73
    Lesperance, Anthony L., Elko County Commissioner.............    31
        Prepared statement of....................................   217
    Miles, Zane, Deputy District Attorney, Eureka County.........    33
        Prepared statement of....................................    65
    Myers, Tom, Consultant to Great Basin Mine Watch.............    18
        Prepared statement of....................................   185
    Presley, Edward L., National Director, County Alliance to 
      Restore the Economy & Environment (CAREE)..................    22
        Prepared statement of....................................   203
    Reid, Hon. Harry, a Senator in Congress from the State of 
      Nevada.....................................................     5
    Rivers-Council, Jean, Associate State Director, Nevada State 
      Office, Bureau of Land Management, U.S. Department of the 
      Interior...................................................    50
        Prepared statement of....................................    69
    Upton, Bill W., Manager, Environmental Affairs, Placer Dome 
      U.S., Inc..................................................     9
        Prepared statement of....................................    61

Additional material supplied:
    Blaylock, Gregory A., Joseph, Oregon, prepared statement of..   278
    Women's Mining Coalition, Elko, Nevada, prepared statement of   280
    Nevada Gold Cyanide Mill Tailings Regulation.................   139
    Newmont Gold Company, Comments of............................    85



                         HARDROCK MINING ISSUES

                              ----------                              


                       MONDAY, september 22, 1997

        House of Representatives, Subcommittee on Energy 
            and Mineral Resources, Committee on Resources, 
            Elko, Nevada.
    The Subcommittee met, pursuant to notice, at 9:10 a.m. at 
the Stockman Hotel, 340 Commercial Street, Elko, Nevada; Hon. 
Barbara Cubin (chairman of the Subcommittee) presiding.
    Mrs. Cubin. I am not used to holding this. I could get 
carried away here. So if we break out in song, you will know 
why, and we have the right setting for it as well.
    I would like to call the Subcommittee on Minerals and 
Energy hearing to order. I want to thank all of you for being 
here today and it is an honor for me to be here.
    We are a Subcommittee of the Committee on Resources, from 
the Congress, and thank you for your hospitality and thank all 
of you for attending. Let me begin today's hearing by thanking 
Congressman Jim Gibbons. He is a valued member of this 
Subcommittee and we are happy to have him as our host here 
today in Elko, Nevada, in the heart of gold mining country. My 
brother is a gold miner down at Misquite mine, so I sort of 
have a sensitive spot for gold mining.
    Although I came from a small town, Casper, Wyoming, it is 
seldom that we can take time out from our busy schedule in 
Congress to be able to hold these field hearings, especially in 
remote areas like Elko, but it is an honor for us to do that 
and, of course, this is where the folks that are most affected 
by the government decisions regarding the use of the public 
lands live, so it is good for us to be able to come back and 
hear from the very people that are affected by the decisions 
that we make, just how those decisions turn out in real life 
when you have to practice what we bring forward.
    Unfortunately, as is the case with many field hearings, we 
do have a schedule to meet, and we have a 1:55 flight, so we 
have to adjourn promptly at 1 o'clock. I think we will have 
time, but I would like to ask everyone to keep their comments 
to the 5-minute period. We have lights here, and if you could 
do that, that would be greatly appreciated.

 STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF WYOMING

    Mrs. Cubin. This Subcommittee has held two field hearings 
in Congress already on the subject that we will be talking 
about today, and concerning the Secretary of Interior's 
decision to pub-

lish, on February 28 of this year, a final rulemaking bonding 
of hardrock mining operations on public lands, administered by 
the Bureau of Land Management. After having to resort to a 
subpoena, issued by Chairman Young of the full Resources 
Committee, we finally have all of the documents that we 
requested in our inquiry from the Secretary, and what we want 
to know, as of course do you, why the Secretary has allowed 
this rulemaking to become final after such a long lapse without 
new public input.
    He did this despite requests from me, from Congressman 
Gibbons, from your Governor and the senior Senator for your 
State and others to re-propose the rule for new comments. A 
lawsuit filed by the Northwest Mining Association against the 
Secretary, alleging abuse of discretion and failure to follow 
proper rulemaking procedures is in progress in the U.S. 
District Court, where a ruling on cross-motions for summary 
judgment is possible by the end of this month. But whatever the 
outcome of the lawsuit, I believe the Secretary's actions are a 
strong indicator that we in Congress, as well as in the 
regulated industry and indeed the public at large, must remain 
vigilant and insist upon strict adherence to the Administrative 
Procedures Act and the Regulatory Flexibility Act as well, 
which mandates analysis of impacts of rulemaking upon small 
businesses.
    I view the role of Congress to protect the system, while I 
don't always agree with the decisions that are made by those 
decisionmakers in the executive branch, and, therefore, I can't 
always--or really can't intervene on those decisions once they 
have followed the correct procedure. But my job, and I think 
the job of the Congress, and this oversight hearing, is to make 
sure that we protect the procedure, that we protect the policy 
because if we don't do that, there are several things that can 
be guaranteed.
    No. 1, when the procedure is violated, even if you are on 
the winning side this time, the procedure will be violated 
again and you may be on the losing side the next time. Another 
thing that can be guaranteed, especially in areas where the 
environment is being debated, that degradation of the 
environment will occur at some point when the process is abused 
and violation of private property rights will occur. Therefore, 
it is my sworn duty to protect the policy and make sure that 
the agencies abide by those two laws.
    Another thing happening in Congress, this time in the 
Senate, which also bodes poorly for full participation by the 
States in the full 3809 regulations rewrite, which Secretary 
Babbitt announced last winter, last week the appropriations 
bill for fiscal year 1998 for the Interior Department was 
debated. In the version from the Committee was language to 
require the establishment of a committee of Western Governors' 
representatives to report to Congress on the proper roles of 
States in mining, permitting and reclamation matters.
    The report would ensure the Governors a place at the 3809 
table, so to speak, but incredibly, the administration 
threatened to veto if such a provision were to remain. It is 
astounding to me that the agency should think that the 
Governors of the States affected should not have a place at the 
table. The senior Senator from Arkansas led the charge and 
there was no choice for Western Senators, they said, except to 
bargain away that requirement in return for not allowing the 
BLM to publish the proposed 3809 rule until after December 31, 
1998, and the truth is, the House of Representatives, in which 
Mr. Gibbons and I serve, would very likely have balked at a 
conference committee report, which included the Governor's 
report requirement as another attempt by the quote, 
``subsidized public land miners to stall off necessary 
reform,'' but not because we haven't tried to set our 
colleagues from the East straight or from the East on this and 
other Western issues, but because the folks who want to see the 
industry leave the U.S. altogether are winning the public 
relations wars, so the mail to the Eastern representatives and 
Midwestern Members of Congress is routinely against efforts to 
restore the multiple use concepts and multiple use for public 
lands.
    A trip in August, in which the Speaker of the House, the 
Majority Leader, the Majority Whip, all total about 14 Members 
of Congress, came back and were educated on Western issues, and 
the folks from the East and from the industrial Midwest were 
amazed at what they saw when they compared what they actually 
saw to what they thought was happening out here on the public 
lands.
    As you in the mining industry well know, increasingly, it 
is a Superfund or the Clean Water or the Clean Air Act tail 
wagging the 1872 mining law dog. In other words, so what if 
irresponsible efforts to reform the 1872 mining law is staved 
off for another Congress, if air, water or other environmental 
thresholds are adopted in statute or regulation, which 
effectively deny permit issuance.
    Unfortunately, the Federal laws which the EPA administers 
and delegates to the States, which demonstrate willingness and 
ability to implement them, by the way, are not generally within 
the jurisdiction of the Committee on Resources. A notable 
exception is the Endangered Species Act. Nevertheless, the 
genesis of the 3809 regulations is clearly the Federal land 
policy management--excuse me--FLPMA, I just will quit 
stuttering. We all know what FLPMA is, but FLPMA does reside in 
the jurisdiction of our Committee and therefore we can have 
this hearing.
    The Secretary of the Interior does, indeed, have a mandate 
to prevent unnecessary and undue degradation of public lands. 
We all agree with that. I don't believe there is a single 
person in this audience who would deliberately degrade the 
environment. The 104th Congress voted to establish a 5 percent 
net proceeds royalty, require payment of fair market value for 
the services stated within a claim to be patented and establish 
a trust fund for reclamation of land abandoned by miners, prior 
to the modern reclamation requirements.
    This was called sham reform by the administration, and 
others. Apparently the sham reform was not enough of a good 
faith showing by the Congress to warrant further dialog. 
Instead, in a move that a Washington Post reporter even labeled 
as stealth mining law reform, Secretary Babbitt has shifted the 
debate to a forum in which he has the most broad control, but I 
do pledge to use this chairmanship to see to it that meaningful 
public input is brought out, that it is received properly and 
dealt with properly, before the 3809 mining rules or the Forest 
Service parallel rules at 36 CFR 228 R, revised. So I do thank 
you for your attendance today and I am going to call on your 
representative, Jim Gibbons, for an opening statement.

  STATEMENT OF HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. Thank you very much, and on behalf of all of 
Nevada, I want to welcome Representative Cubin to Elko, Nevada. 
As Chairman of the Energy and Mineral Resource Committee, this 
is an important opportunity for all of Nevada to have a chance 
to understand just exactly what it is that Congress can do, and 
should do when it comes to protecting this industry, so I would 
like to welcome you to Elko, Nevada, and I would like to 
express my sincere gratitude to you for holding this hearing on 
the precious--in fact, in the precious metal capital of the 
world, here in Elko, the silver State, and I applaud your 
efforts to preserve and protect a vital interest to Nevada and 
to this country. And I know you, as a chemist, and I as a 
former geologist, have a deep appreciation and understanding of 
all of our Nation's mining and mineral industries and it is the 
reason why we feel this is such an important part of our job as 
representatives in Congress.
    By way of introduction, let me say that Nevada, the 
Nation's leader in gold production, has 30 operating gold-
producing companies here and they employ more than 14,000 
people. These people mined an estimated $2.9 billion worth of 
metals in 1995 in Nevada alone. Nevada alone provides an annual 
direct contribution to the Federal Government of more than $113 
million.
    As the second largest employer in the State, mining 
provides $1.5 billion in personal, business, State, and local 
government revenues. That is $1.5 billion. Now, these numbers 
make it easy to realize why mining is such an important part of 
Nevada and why any change in the laws or regulations governing 
mining or mining operations must be closely monitored to ensure 
that the mineral industry is not crippled or endangered by 
personal agendas of special interest groups or individuals 
whose only goal is to eliminate all mining activity on public 
land.
    In a memo from Secretary of the Interior, Bruce Babbitt, to 
the Assistant Secretary of Lands and Minerals, dated January 6, 
1997, Mr. Babbitt stated clearly, quote, ``It is plainly no 
longer in the public interest to wait for Congress to enact 
legislation that corrects the remaining shortcomings of the 
3809 regulations. To that end, I direct you to restart this 
role-making process by preparing and publishing proposed 
regulations,'' end quote.
    Well, to Mr. Babbitt, I would say that Article I, Section 1 
of the Constitution states that all legislative powers herein 
granted shall be vested in a Congress. Democracy and our 
Constitution require that the people be bound only by those 
policies enacted by our elected lawmakers, not appointed 
bureaucrats. Since the New Deal, however, Congress has 
routinely lost the power to make laws and it has lost that 
power to unelected and unaccountable bureaucrats. This must 
stop and the legislative powers must be returned back to 
Congress allowing decisionmakers to be held accountable to 
their constituency.
    If we want to find recent administrative actions doing 
great harm to our political process and to the people of 
Nevada, we do not have to look very far. Clearly, evidence of 
this loss of power and administrative lawmaking were recently 
felt by this great State when the Secretary published new rules 
on BLM hardrock bonding requirements.
    I submit to this Committee that the public was not allowed 
to voice their opposition or their concerns about the substance 
of the final version of the rule. Five-and-one-half years 
before the administration's final enactment of the rule, the 
intention of the Department of Interior was to create 
legislative policy. I believe their actions violated the 
Administrative Procedures Act and were a disservice to the 
people of America.
    Does anyone in the Department of Interior remember the 
preamble to our Constitution which states, ``of the people, by 
the people and for the people.'' The purpose of this hearing, 
of course, will be to explore the Department of Interior's 
effort to revise the hardrock mining surface management 
regulations, 43 CFR 3809, or simply put, the 3809 regulations.
    It is my intention today with your support to hear from the 
people of Nevada, the citizens of this country, the industry, 
the State and then the Federal Government on why we need to 
change 3809 regulations. And if indeed we do, then how best to 
go about changing and implementing the new regulations. It is 
my intention as a Member of Congress not to be caught off guard 
when the Department of Interior makes their changes.
    I encourage public comments on this regulation so that I 
can use every power available to me to ensure that the adage, 
quote, ``for the people,'' end quote, is held true in its 
spirit.
    Madam Chairman, I look forward to this hearing today and I 
would like to thank you and everyone for taking time out of 
their busy schedules to participate in our government process. 
Thank you and I would yield back any balance of time that I 
have.
    Mrs. Cubin. Thank you, Mr. Gibbons. Now that the light is 
on, I could even read his statement. I have just reached the 
age when I have learned that I can't see very close anymore so 
forgive me for my bit of stuttered speech.
    Now we will begin with the testimony on the first panel and 
first I will call on Ron Espell--oh, excuse me, no. We are 
honored today to have a representative from Senator Reid's 
office with us for a brief statement, and so I will ask Karen 
Denio if she will please give the Senator's testimony for us.

 STATEMENT OF HON. HARRY REID, A SENATOR IN THE CONGRESS FROM 
                      THE STATE OF NEVADA

    Ms. Denio. Thank you very much. My name is Karen Denio. I 
am rural coordinator for U.S. Senator Harry Reid, senior 
Senator from the State of Nevada. Senator Reid has asked that I 
read his statement into the record and his personal statement 
is as follows:
    Last Thursday, with the assistance of other Western 
Senators, I fought off a major challenge to Nevada miners as 
the interior appropriations bill came to the floor by fending 
off attempts by perennial foe Dale Bumpers to attach 
legislative riders to the bill calling for a net royalty and 
severance tax on mining operations.
    Additionally, we successfully negotiated a 1-year 
moratorium on any new 3809 regulations. My amendment will 
require the Sec-

retary of the Interior to wait until at least November 15, 
1998, to publish proposed regulations on the 3809 hardrock 
mining regulations. After that, we can use the Reid-Nickles 
Regulatory Reform Act to stop anything particularly offensive 
or dangerous for Nevada miners.
    This past February, Secretary Babbitt stated in an 
interview on National Public Radio that he was going to rewrite 
the current mining laws. His most recent attempt at revising 
3809 regulations is another back-door approach to mining law 
reform. This effort illustrates the Secretary's frustration 
with not getting mining law reform done his way.
    The administration just does not understand the process 
that Congress has undertaken to reform the 1872 mining law. 
Reasonable mining law reform must come through cooperation with 
Congress and Western States, not through covert actions by 
Federal bureaucrats. I fear a negative impact on mining 
operations on public lands. The Secretary's prescription for 
mining law reform is a one-size-fits-all approach. He wants to 
direct uniform Federal standards for a goal placer operation in 
Alaska, surface copper mines in Arizona and underground gold 
mines in Nevada. As any miner knows, this will not work.
    In many ways this proposal is a direct attack on the 
economy of Western States, since the vast majority of Federal 
lands are located in the West. As you know, Nevada has 87 
percent of its land under Federal control.
    According to the Interior Department, the mining law 
revision process has been on hold since 1993 because Congress 
has failed to act on the matter. I resent the implication that 
Congress has not considered mining law reform. Maybe it was not 
to the liking of those who would like to destroy the industry. 
I have written several bills since I have been in the Senate, 
including a 1994 measure that passed both the House and Senate. 
Additionally, the 104th Congress passed legislation amending 
the mining law, however, it was vetoed as part of a larger 
action.
    When mining law reform takes place, Congress should do it 
with the cooperation of the Western State governments. The 
issue of mining reform has been one of the most hotly debated 
subjects in Congress for the past 7 years. Congress has 
considered many controversial amendments, and after debate, 
close votes have occurred. The Secretary continues to push his 
agenda on this Congress and I am proud of the role I played in 
ensuring that no amendments, bills, or bureaucratic shenanigans 
that would have been disastrous to hardrock mining succeeded.
    What is of most concern to me is the Secretary's efforts to 
bypass the Congress on this most important matter. In the past, 
the Secretary has called for collaborative resource management, 
yet he leaves the Western Governors out of the process. It is 
the Western State economies that are most affected by the 
Department's actions. The Department of the Interior wants to 
create new and onerous regulatory requirements that may 
conflict with rules already in place in States where mining 
occurs.
    Since the BLM first wrote the 3809 regulations back in 
1980, States have made vast improvements to their laws 
governing mining, reclamation, and environmental remediation on 
Federal land. Nevada's laws serve as a model for the rest of 
the world. I fail to understand why we need another set of 
burdensome regulations from the Federal Government when our 
State laws already protect our resources and promote our 
economy. Thank you.
    Mrs. Cubin. Thank you, Karen, and will you please send our 
regards and our thanks to the Senator for his testimony?
    Ms. Denio. I will.
    Mrs. Cubin. Now we are back on track. So the first witness 
we will call on today is Ron Espell, Environmental 
Superintendent for Barrick Goldstrike Mines, Inc.
    Mr. Espell. Thank you very much, Madam Chair.
    Mrs. Cubin. I would like to call your attention to the 
traffic signal down here.
    Mr. Espell. I will have to do this without a mike.
    Mrs. Cubin. We will get you a mike. Is that working?
    We will start your 5 minutes over. You will know when your 
time is up because the red light will be flashing in your eyes.

   STATEMENT OF RON A. ESPELL, ENVIRONMENTAL SUPERINTENDENT, 
                 BARRICK GOLDSTRIKE MINES, INC.

    Mr. Espell. Thank you very much for the opportunity to 
appear at this hearing of the House Subcommittee on Energy and 
Mineral Resources today to discuss the regulatory framework 
that governs hardrock mining on Federal lands. My name is Ron 
Espell. I am currently the Environmental Superintendent for 
Barrick Goldstrike Mines, which is the owner and operator of 
the Goldstrike Mine on the Carlin Trend in Eureka County, 
Nevada. I have worked at Goldstrike since 1994.
    My responsibilities include assuring that Goldstrike has 
the proper environmental permits, including approvals from the 
Federal Bureau of Land Management and the State of Nevada. 
Before coming to Goldstrike, I worked for other mining 
companies, consultants to the mining industry and Nevada's 
Bureau of Mining Regulation and Reclamation, so I have many 
years of experience with mine regulation and permitting.
    Mining activities on Federal lands at the Goldstrike Mine 
are regulated by BLM, through a plan of operations that was 
initially approved in 1987. Mining on public and private lands 
is subject to a mining permit from the State of Nevada that was 
initially issued in 1991, after Nevada adopted new mining 
regulations in 1989. Our BLM plan of operations has been 
amended several times and our Nevada mining permit will be 
renewed this year.
    At Goldstrike, we have a significant amount of experience 
with the existing process for permitting mining operations. I 
want to focus my testimony on several key points about the 
current regulations and explain why, from my perspective, 
changes are not necessary.
    One, cooperation between Federal and State regulators is 
essential. An essential element of any effective system for 
mine regulation is cooperation and respect between BLM and 
State mining regulators. Because a mine that operates on public 
lands must be permitted by both agencies, the possibility 
exists for conflicting or inconsistent requirements. We have 
been fortunate that both the State of Nevada and the local BLM 
district recognize the impor-

tance of cooperation. It has been our experience that the 
Nevada State agencies work closely with BLM and the mine 
operator, to assure that requirements are consistent and to 
avoid duplicative requirements, including inspections.
    BLM's existing 3809 regulations encourage Federal/State 
cooperation through cooperative agreements and by provisions 
which explicitly incorporate State reclamation and 
environmental standards into BLM's process for reviewing and 
approving plans of operations. Most importantly, by requiring 
compliance with State standards, the present 3809 regulations 
provide an evolving standard which automatically incorporates 
changes in State laws and regulations.
    Two, BLM should not develop independent performance 
standards. The second point that I would like to make is 
related to my first concern about Federal/State cooperation in 
permitting. BLM should not develop separate environmental or 
reclamation performance standards. As I understand it, 
Secretary Babbitt has asked the BLM task force that is looking 
at 3809 regulations to consider whether BLM should develop 
additional environmental or reclamation performance standards.
    We believe that BLM should not develop additional 
performance standards for two reasons. First, reclamation 
standards must be tailored to the site where mining occurs and 
the type of mining that is proposed. Reclamation on the Carlin 
Trend will require different methods and different standards 
from reclamation in the Arizona desert or the Montana 
mountains. Reclamation at an open pit copper mine is different 
from reclamation at an underground gold mine. A one-size-fits-
all standard imposed from BLM in Washington simply cannot 
accommodate the many different environments where mining will 
occur. Instead, BLM should look to the reclamation standards 
developed by State and local governments who are much more 
familiar with local conditions and land uses.
    Second, separate performance standards developed by BLM 
will likely lead to inconsistent requirements. Every mining 
operation is subject to a long list of permitting requirements 
to prevent pollution of air and water and protect the 
environment. For example, water quality standards are developed 
by States under the authority of the Federal Clean Water Act 
and implemented through permits. There is no reason for BLM to 
second guess existing water quality standards or permits. This 
is particularly important in the area of ground water, where 
Congress firmly stated its intent to leave groundwater 
protection to the States. Rather than create new requirements, 
BLM should simply incorporate State water quality standards or 
permit requirements into its approval of a plan of operations. 
Similarly, every Western State has a modern mining reclamation 
law.
    BLM should not attempt to duplicate those requirements. I 
do not believe that the Interior Department can demonstrate 
that any changes are needed to BLM's current 3809 regulations. 
I hope that these oversight hearings will add to the record and 
encourage the Department to avoid major changes. Thank you very 
much for the opportunity to give this testimony.
    Mrs. Cubin. Thank you very much. Our next witness will be 
Bill Upton of Placer Dome U.S. Inc.

  STATEMENT OF BILL W. UPTON, MANAGER, ENVIRONMENTAL AFFAIRS, 
                     PLACER DOME U.S., INC.

    Mr. Upton. Madam Chair, Congressman Gibbons, my name is 
Bill Upton. I am the Manager of Environmental Affairs for 
Placer Dome U.S. Incorporated. In this capacity I have direct 
and oversight permitting responsibilities for PDUS. Placer Dome 
U.S. Inc. operates three large gold mines in the United States, 
two in Nevada and one in Montana, and conducts extensive 
mineral exploration throughout the West, including Alaska.
    Our United States operations employ a total of 955 people. 
We employ people in Nevada, Montana, Alaska and Kentucky. 
Placer Dome U.S. has a long history of permitting and operating 
on public land in Nevada and Montana. Our most recent 
permitting experience is the expansion of our existing mining 
operations. In Nevada, Cortez Gold Mines began operations in 
1969 and is located primarily on public land administered by 
the BLM and Bald Mountain Mine began operations in 1981 and is 
primarily located on private land but also operates on some BLM 
administered land.
    All of our operations are permitted under the requirements 
of 43 CFR 3809 and have undergone extensive environmental 
reviews pursuant to the National Environmental Policy Act. 
Permitting under 3809 and NEPA has been ongoing at Cortez Gold 
Mines since 1990. The BLM completed their first Environmental 
Impact Statement for Cortez in 1993. Subsequent discoveries led 
to the permitting of our Crescent Pit and preparation of 
another EIS for our pipeline pit and number 2 mill expansion. 
The BLM is currently completing an Environmental Impact 
Statement for the most recent Cortez Plan of Operations.
    The BLM completed an EIS for the expansion of Bald Mountain 
Mine in 1995 and most recently permitted Bald Mountain's LJ 
Ridge expansion. At Golden Sunlight in Montana initial mine 
development was permitted in 1981 under the Montana Mining and 
Mineral Policy Act. In 1995 the mine submitted an application 
to expand operations and the Montana Department of 
Environmental Quality, as the lead agency, and the BLM as 
cooperating agency are completing an EIS for the expansion. The 
remainder of my testimony will center on the BLM's review of 
possible changes to 3809 regulations. PDUS had the opportunity 
to tour several members of the BLM task force conducting this 
review at our pipeline project in April and at Golden Sunlight 
in early September. The task force saw firsthand how many of 
the issues they are concerned with in 3809 are being managed 
effectively under the current regulations in strong State and 
Federal regulatory programs in these States.
    At Cortez, they saw the notice level exploration drilling 
operations and the controls incorporated in these operations to 
prevent unnecessary and undue degradation. They walked over 
areas where similar activities had been conducted the season 
before and which had already been reclaimed and which were 
nearly indistinguishable from the adjacent undistributed land. 
They saw the comparatively low density and intensity of 
disturbance typical of this activity. We explained to them how 
important Notice Level exploration is to our long-term planning 
and survival, how it provides the opportunity to gain timely 
access to prospective areas to further assess their mineral 
potential before investing the enormous amount of time and 
money required to permit plan level disturbance.
    At Golden Sunlight, the task force observed the importance 
of incorporating site-specific conditions into the reclamation 
plan and how this had been accomplished through the existing 
State and Federal permitting program in Montana. They also saw 
the distinct differences in site conditions between Golden 
Sunlight and Cortez. Unlike many other industries, mining can 
only occur where the resource is located.
    The contrast in site conditions between Golden Sunlight and 
Cortez and the resulting differences in their reclamation plans 
are a good example of why one-size-fits-all performance 
standards would be inappropriate for hardrock mining given the 
wide variety of site conditions within which it can occur.
    Pit backfilling, including the enormous expense in dollars 
and resources to accomplish it, the potential adverse 
environmental impacts associated with it, and the loss in 
potential mineable resources it would result in were discussed 
at both operations with the task force. The task force learned 
first hand how this issue was included in the alternative 
analysis during the permitting of both operations and therefore 
is already receiving detailed evaluation as part of an existing 
State and Federal permitting requirements.
    Most importantly the task force saw how permitting and 
regulation of hardrock mining is being effectively coordinated 
with State government both in Nevada and Montana. They saw how 
the permitting role of these States on issues concerning air 
quality and water quality and quantity is being coordinated 
with BLM and effectively carried out in a manner protective of 
public lands.
    In summary, PDUS believes the regulations are working to 
protect public lands. The current 3809 complemented by strong 
State regulatory programs have provided for and will continue 
to provide for the adequate protection of public lands. We have 
not seen any evidence to show additional regulations is 
warranted. The examples I've provided from our operations in 
Nevada and Montana are testimony to the fact that current 
regulations are comprehensive and when properly implemented in 
coordination with State programs adequately protect the public, 
as well as private lands. Thank you and I will do my best to 
answer any questions.
    [The statement of Mr. Upton may be found at end of 
hearing.]
    Mrs. Cubin. Thank you very much. Can you folks in the back 
hear the testimony? Hold it, if you will, please, Mr. Jones, 
hold the microphone closer to your mouth.
    Mr. Jones. How is that? Is that better? OK. That is better.
    Mrs. Cubin. Thank you. Do you want to use the stand there, 
or hold it, it doesn't matter, whatever you are most 
comfortable with.
    Mr. Jones. I will hold it, that is fine.
    Mrs. Cubin. Our next witness is Martin Jones, Senior 
Manager of Nevada Environmental Compliance with Newmont Gold 
Company.

STATEMENT OF MARTIN R. JONES, SENIOR MANAGER, NV ENVIRONMENTAL 
                  COMPLIANCE, NEWMONT GOLD CO.

    Mr. Jones. Good morning, Madam Chair, Congressman Gibbons, 
my name is Martin Jones, Senior Manager of Nevada Environ-

mental Compliance for Newmont Gold Company. I am responsible 
for overseeing compliance for Newmont's Nevada operations with 
all Federal, State and local environmental laws, including laws 
relating to exploration, operation and closure. Newmont is the 
largest gold producer in North America.
    Since 1965, Newmont has engaged in mining and processing on 
the Carlin Trend in north central Nevada. Today, Newmont Gold's 
domestic operations remain centered in northern Nevada. In the 
last 15 years, the U.S. gold mining industry has emerged as an 
internationally competitive industry and has accomplished this 
without the need for government loans, subsidies, bailouts or 
tax breaks. In fact, gold mining companies in most cases 
themselves have paid for the community and other infrastructure 
needs necessary to support their operations during a time when 
environmental regulations have been ever increasing, and it has 
done this while paying its employees wages that are higher than 
any other segment of American workers.
    Over two-thirds of our nation's gold production takes place 
in Nevada. Gold mining generates over 51,000 jobs in Nevada, 
and precious metal producers paid over $141 million in Nevada 
State and local taxes in 1995. Newmont and other mining 
companies work hard to ensure that their operations on public 
and private lands are conducted in an environmentally 
responsible manner and in accord with all applicable State and 
Federal regulatory programs. These programs are numerous and 
are scrutinized by many agencies, including the Nevada 
Divisions of Environmental Protection, Water Resources, and 
Wildlife, the U.S. EPA, Fish and Wildlife Service, Army Corps 
of Engineers and the Bureau of Land Management.
    We recognize and accept our obligation to properly close 
and reclaim mining sites after their useful life. In the late 
1980's, Newmont worked closely with the Nevada Mining 
Association, Nevada Division of Environmental Protection and 
the Sierra Club to develop a State reclamation program that 
would ensure reclamation of public and private lands.
    Today, we will focus on the BLM regulations applicable to 
hardrock mining on public lands, known as the 3809 regulations, 
the basic substance of which has been in place since 1980 and 
has proven more than adequate to protect public lands. Despite 
the rhetoric of mining industry critics, we have not seen 
evidence indicating that these regulations have led to 
significant problems or that regulatory changes are necessary. 
This is especially true for States like Nevada, that have 
comprehensive environmental mining and reclamation and 
regulatory programs.
    In 1992, BLM conducted a comprehensive review of the 3809 
regulations and concluded that the centerpiece of the program, 
a rule that prohibits unnecessary or undue degradation of 
public lands, was fully adequate. As the Committee is no doubt 
aware, Secretary of the Interior Babbitt last spring appointed 
a task force to review the 3809 regulations and proposed 
revisions, including revisions that would impose prescriptive 
and inflexible nationwide standards.
    In connection with the task force efforts, Newmont 
submitted extensive comments. I ask that these comments be made 
a part of the record for this proceeding and will very briefly 
summarize them for you. Under the existing 3809 program, 
persons wishing to engage in mining on public land must submit 
a plan of operation for approval by BLM. Before approving the 
plan, BLM undertakes a comprehensive assessment of all 
potential environmental impacts and if any are found, the plan 
of operation is modified as appropriate.
    In addition, operations in Nevada must comply with 
standards imposed by the State: Mining, reclamation and 
wildlife protection regulatory programs. These programs ensure 
that the design and operation of each facility is appropriate 
for the physical, geological and hydro geological condition at 
each site. Tailoring operation and reclamation plans to site-
specific conditions is essential.
    Hardrock mining involves many different minerals in mining 
and processing techniques and occur in a widely varying 
environmental setting. Unlike other industries, operators of 
mines cannot locate their mining sites in settings where 
compliance with national design standards might be feasible. 
Mining can only take place where the minerals are located. For 
these reasons, a host of authorities, including the National 
Academy of Science, EPA, the Western Governors Association, 
have recognized that site-specific flexibility is an absolute 
necessity for regulations affecting hardrock mining.
    In conclusion, Newmont believes the 3809 program has worked 
well to protect public health and the environment and public 
lands, a conclusion shared by the Western Governors 
Association. Despite their assertions to the contrary, 
environmental groups have failed to identify any but a small 
number of isolated instances where modern mining operations on 
public lands subject to modern environmental programs have led 
to significant environmental problems that could have been 
avoided by more prescriptive national standards.
    Instead, critics of industry focus on environmental 
problems existing at historic sites, while mining occurred long 
before the advent of 3809 regulations. In Newmont's view, the 
current regulatory scheme should not be altered unless BLM can 
show that significant real world problems exist that cannot be 
addressed under the existing program. Certainly no such showing 
has been or in our view could be made with respect to public 
lands located in Nevada. Thank you.
    [The statement of Mr. Jones may be found at end of 
hearing.]
    Mrs. Cubin. Thank you, Mr. Jones, and now if you don't 
mind, we would like to just ask each one of you a few questions 
and we will start with Representative Gibbons.
    Mr. Gibbons. Thank you, Madam Chair. First, let me ask for 
all of you, maybe, a brief comment on industry standards in 
terms of reclamation, environmental practices, et cetera. Do 
you feel that the industry standards today with regard to those 
issues, whether it is environmental protection, reclamation, 
habitat protection, have been met and are constantly being 
reviewed within the industry itself to step forward at the 
proper time to advance both the industry and the environment 
within your operations?
    Mr. Upton. Yes, I believe they do. I know through our trade 
associations, the Nevada Mining Association in particular, we 
share a great deal in terms of our own individual standards 
within companies and between companies, and share that work 
that we are doing collectively, and I think, yes, the standard, 
the industry standard, is at a level that challenges or at 
least represents well the regulatory standards.
    Mr. Espell. Just to respond to that a little bit 
differently, I am also, aside from my duties at Barrick, I am 
the Reclamation Subcommittee Chairman for the Nevada Mining 
Association. We have both, through the NMA and through the 
individual companies, under the current regulatory framework, 
there is enough flexibility that we have a very cooperative 
agreement and a working relationship between the Federal 
regulators that the BLM--and the State agencies, where we work 
together to identify reclamation needs and objectives, and in a 
very cooperative spirit come up with advancing techniques to be 
able to meet those needs and under the current system, those 
sorts of things are possible and are being done.
    Mr. Jones. To give you the short answer, yes. Newmont 
endorses the Nevada standard. We apply that standard worldwide. 
It doesn't matter if we are in Peru or Uzbekistan or Indonesia. 
We find the Nevada standard for our industry provides a balance 
between economic factors and protection of the environment.
    With respect to 3809, the definition of undue and 
unnecessary degradation allows for changes without having to 
rewrite it, I think this is the keystone of 3809, and so allows 
for an evolution of techniques and technical problems, 
resolution of technical problems. As we get better at 
reclamation and get better at operating, then those standards 
become commonplace in the industry and the 3809 is then updated 
by applying the unnecessary and undue degradation rule.
    Mr. Gibbons. Thank you. Now, if the industry itself has 
certain standards that are met, and perhaps, as you have 
indicated, they are uniform throughout most companies that 
operate mining operations here in Nevada to meet those permit 
requirements. Let me ask you just a two-part question. One, if 
they do have, and they do meet, and this is not something like 
re-inventing the wheel, as we have done on these standards, why 
does it take so long for a mine to get permitted here in Nevada 
and how can we, as a State, and you as an industry, work with 
the BLM to actually expedite that process, because, after all, 
we also want to hear solutions, not just complaints. We want to 
hope that through this process, you can help us communicate 
with the bureaucracy in its reevaluation of 3809 to make 
better, but better for everybody, not just for one group or one 
special interest. So my question would be, if you didn't 
understand it, I would repeat it, but I hope you understood it.
    Mr. Jones. I think I do. I would like to think that we hold 
ourselves to a higher standard than other mining companies, but 
I am sure I would get disagreement here. Permitting takes long, 
and that is probably some of our frustration with the process. 
It does take long lead times to permit. We found at Newmont 
that working with the BLM district to let them know our 
upcoming schedules, what we have on the agenda, so that they 
can clear their schedules to work on the documents, and then we 
hold meetings when we finish, to discuss what went right, what 
went wrong, where can we streamline the process to make it more 
efficient.
    I don't think, including the BLM review of notice level 
activities, that is now being required, has helped because we 
have now taken people who are overworked and don't have enough 
resources, and we have burdened them with more work. I think 
that we should consider giving BLM more resources to help us 
with the permitting process.
    Mr. Espell. To add to that a little bit differently, some 
of the things we have seen that add to the overall timing of 
the permitting process is any time there is a duplication in 
the Federal permitting process, duplication of things which are 
already permitted and evaluated under the current State 
programs, we have been working very closely with the Nevada 
State office of the BLM to identify the sources of duplication 
and develop MOUs between the State and the BLM in order to be 
able to try to avoid those duplications. The changes that are 
proposed in the 3809 regulations actually go countercurrent to 
that philosophy and incite more duplication as opposed to 
trying to encourage a lack of duplication of the programs.
    Mr. Upton. Well, yes, sir, our permitting process has been 
lengthy, and for many reasons, understandably so. I think our 
biggest concern is the 3809 rules being contemplated would only 
increase that. The bonding regulations that were adopted have 
again added to staff time at the agencies to where they are now 
required to spend much more time reviewing notice level 
activities and the bonding requirements now in place for those 
and so it is just a plethora of additional review and 
requirements and time on the part of the staff that in turn 
builds time for us on the other hand, too, to get them the 
information they need, so it is both, yes, we have had lengthy 
processes, but we see what is being talked about as only 
aggravating that and exasperating an already overload situation 
with agencies.
    Mrs. Cubin. Thank you very much. I just have a couple 
questions. Mr. Upton, I will start with you. You mentioned in 
your testimony that one size-fits-all site requirements won't 
work for hardrock mining. And there will be testimony later on 
today from people who think that the Federal Government 
shouldn't own any lands, but since they do right now, what I 
want to ask you is what should the Federal role actually be?
    I think that most of the people that I know, that I work 
with, think that the States can do, will do, and do a good job 
of protecting the environment. In Wyoming I know environmental 
standards are higher, many times, than Federal standards, and 
their own State legislature has imposed that level. So what 
should the Federal role be, and what should the State role be 
and what should the role of the industry be?
    Mr. Upton. Well, we support a strong oversight role by the 
Federal agencies, but we think that the site-specific 
conditions that occur within a State, and the complexity to 
those clearly lie with the State agencies, and even the local 
government agencies to have a strong role in determining the 
permit requirements and the compliance requirements for those 
operations, and that, yes, the Federal Government has a role in 
providing oversight and consistency between States, but on the 
same hand, it is important to have those site-specific 
conditions recognized in the permitting process and compliance 
aspects of an operation, so that we are dealing with the proper 
aspects out there in that sense.
    Mrs. Cubin. So you said, and I don't want to be putting 
words in your mouth, I want your opinion. You said that they 
should coordinate and see that there is consistency among the 
States, and did you say set standards?
    Mr. Upton. No, I said the States should be in the standard 
setting role.
    Mrs. Cubin. In a couple words again, what should the 
Federal role be?
    Mr. Upton. Oversight in the context of looking at the 
standards between States, and applying and assuring some 
reasonable level of consistency between States.
    Mrs. Cubin. So is it your opinion, and maybe you don't 
know, because I don't, I have to vote on all the States issues, 
but is it your opinion that the State standards are adequate to 
protect the environment in land, water and air?
    Mr. Upton. In the States we operate in, yes.
    Mrs. Cubin. OK. Thank you very much.
    Mr. Espell, you mentioned in your testimony that you have 
had pretty decent experiences in dealing with public land 
managers who you work with and so a lot of times I think when I 
am saying things that are critical of the Federal agencies, I 
don't make it clear that generally I am speaking of the 
Washington bureaucracy and how their decisions negatively 
impact people on the land.
    My experience has been uniformly, when I am dealing with 
local land managers, that generally they do a good job, they 
care about the land, they are our neighbors and they are our 
friends and family, and I think you referred to that somewhat. 
I mentioned also in my opening statement the leadership trip to 
the West and how the things we had learned there, there were 
three things that we wanted, three messages we wanted them to 
go home with. That was the States can, will, and do a good job 
of regulating and enforcing environmental statutes; that 
resources can be developed on the public lands as well as the 
private, of course, and still allow us to be good stewards of 
the land and that multiple use is good land management policy.
    Could you just go into a little bit more for me, what sort 
of problems you have had with--maybe just give a couple 
examples, of Federal dictates that aren't good for the economy, 
good for the resource, good for anything, where there may have 
been a little bit of disagreement at the local level.
    Mr. Espell. Sure. I think Nevada is probably the best 
example, although my experience has been completely in Nevada. 
From what I have seen of other programs, Nevada has an 
excellent working relationship between the State agencies and 
the BLM, and other Federal agencies, which, you know, reside 
here, the State offices of those agencies. That working 
relationship and that cooperation actually extends all the way 
to the initial development of the State programs, which were 
based on consistency between the State programs and the Federal 
programs.
    In Nevada, for example, a reclamation permit application 
for the State and the BLM's plan of operations is the same 
application. It is a one-stop shopping kind of an idea. That 
cooperative agreement, which reduces the permitting time and 
the burden on the companies, is effectively destroyed by 
changes in the Federal regulations, which then drive 
inconsistencies between the Federal programs and the State 
programs, so, therefore, what I see is where the model should 
be what we have developed here in Nevada, for a cooperative 
agreement between the Federal and State programs, where the 
differences in requirements are transparent to the operator, 
the program is developed in accordance between State and 
Federal programs. Anything that is done on the Federal level, 
seems to be trying to do just the opposite to separate and 
provide inconsistencies between the programs.
    Mrs. Cubin. Thank you. Mr. Jones, does your company go 
beyond what is required in the permits on reclamation and 
repairing maybe old damage? I think Mr. Upton's company has 
just recently gotten an award for that and I guess what I am 
trying to find out is do other companies do that as well, do 
they invest money, really beyond what is required of them, to 
try to be good neighbors or do they not?
    Mr. Jones. Yes, ma'am. We also received an award in 1995, 
the Governors Award for reclamation excellence for riparian 
habitat upgrading. We worked with local ranchers and our TS 
ranch to improve the habitat. Last year, we were involved in a 
cooperative effort to reseed fire-burned, fire-damaged acres, 
and the benefit is to wildlife and to the ranchers, and to us 
as a landowner, in that it made the land more valuable. We in 
mining recognize that we have impacts on the Earth, and that is 
the nature of our business, and we accept responsibility for 
this. And in order to compensate for those impacts, it is 
necessary to do certain things, and we take that on and we do 
those things.
    Mrs. Cubin. Well, thank you. I gave a pitch for Barrick and 
I didn't know you had won an award. Congratulations, I am glad 
you have, but I guess I can't leave Placer out--excuse me, I 
can't leave out Barrick, right.
    Mr. Espell. Yes, we have several different programs going 
on in the State. The one we are currently involved in is a 
restoration project at the Marys River, slightly east and north 
of Elko, in improving riparian habitat, actually reestablishing 
the cutthroat trout habitat in the upper regions of the area of 
the drainage, which actually, the head water is up in the 
Jarbidge mountains. Previously, there has been culverts and 
different things that have been put in the river that we are 
working with with the BLM and Trout Unlimited to actually 
engineer stream restoration.
    Mrs. Cubin. I didn't know there were cutthroat trout out 
there. I thought Wyoming was one of the last places, beautiful 
places on Earth that had cutthroat trout.
    Well, Bill, since I goofed up on you twice, would you like 
to tell us about your award?
    Mr. Upton. The award that Placer received was for 
reclamation in our Alligator Ridge mine where we stepped out, 
and because of the long history of mineral exploration at that 
site by a number of different operators, and the need to bring 
up current reclamation in that area for a lot of the past 
exploration areas, that many of them were even pre-3809 areas.
    Our Bald Mountain operation went ahead and reclaimed a 
number of areas that were not necessarily our responsibility, 
but brought them up to date and that was in essence the 
foundation for the award. They did an excellent job with 
reclamation with it, but primarily the stepping out and 
recognizing there was a need there. I think our best successes 
have been where we began working with local agencies, Federal 
and State, one on one, even outside the permitting process 
where we can collaborate on whether it is wildlife habitat 
enhancement or reclamation. That has been our real big success 
story, where it is not something that is written in the permit, 
it is something that, on the grounds, needs to be done. It is 
the right thing to do and that is where our real successes have 
been for our company, and I think the industry in Nevada.
    Mrs. Cubin. This might not be a fair question and if you 
don't have an opinion, that is fine. But since hardrock mines 
don't pay royalties yet, I understand, and that might be why 
you don't have an opinion on this, but the resource advisory 
councils that were established in land use and planning and so 
on, recommended, among other things, eco credits. Do you have 
an opinion on how eco credits would work in your own industry?
    Mr. Upton. Well, I think the best example we have would be 
in wetland litigation where we deal with no doubt loss issues 
and mitigation. I think there is an example of some sort for 
eco credits where we do, if we are going to effect wetlands and 
water in the U.S., we can mitigate those impacts by going out 
into adjacent areas and enhancing wetlands or creating new 
wetlands and we do get credit there, so I am sure there will be 
opportunities to work with a system like that. I am not real 
familiar with how it would be applied in hardrock industry, but 
I am sure the experiences we have had on working with offsite 
wild habitat work and so forth would work well in those 
situations.
    Mrs. Cubin. And the bottom line would be to improve the 
environment, so do you think that there is a potential for 
that, through the use of the eco credit system.
    Mr. Upton. There seems to be, yes. I think we are well 
versed at working with ecosystem management and looking at the 
whole picture, so I would think, yes, hardrock mining could 
work with something like that.
    Mrs. Cubin. And I have exceeded my questioning time but I 
would appreciate a brief response from the other two.
    Mr. Espell. I guess to followup on what Bill said, the only 
current system that we work under that is similar to that is 
under the Corps of Engineers 404 permit for wetlands 
mitigation. I think most of the mining companies right now are 
already doing something like that, without any sort of benefit 
of some sort of eco-credits or something, that the companies on 
their own are performing that right now without a push.
    Mr. Jones. First, let me correct a fact? We don't currently 
pay royalties to the U.S. Government, but we pay royalties. We 
pay royalties to private landowners, where we have operations 
and we pay a net proceeds tax to the State of Nevada.
    Mrs. Cubin. Thank you.
    Mr. Jones. I know you are aware of that and I wanted to set 
the record straight.
    I am not very well versed in coal and coal regulation and 
so on and I am not able to comment knowledgeably on ecosystem 
credits. I think there is room to talk about them and I think 
probably we are doing a lot of the things now, but I can't give 
you an intelligent answer whether I support that or not. Thank 
you.
    Mrs. Cubin. Thank you very much. I do appreciate your 
testimony, and the answers to the questions and now you should 
go back and make some more net proceeds for Nevada. I would 
like to call the next panel forward, Dr. Tom Myers, Gene Gustin 
and Edward Presley.
    I will remind the witnesses that you are allowed 5 minutes 
for your testimony. The traffic light will be right there in 
front of you. You can't miss it, and I will try to hold my 
questioning to 5 minutes next time, too. We will begin the 
testimony with Dr. Tom Myers, Consultant to Great Basin Mine 
Watch.

  STATEMENT OF TOM MYERS, CONSULTANT TO GREAT BASIN MINE WATCH

    Mr. Myers. Madam Chairman, Congressman Gibbons, on behalf 
of the Sierra Club and Great Basin Mine Watch, thank you for 
this opportunity to testify this morning. My expertise and 
research on this issue primarily concerns water quantity and 
the impacts of mining on groundwater hydrology and the surface 
expression of groundwater, primarily springs, streams, rivers, 
streams and riparian areas.
    My invitation to speak specified this and asked me to 
address water resources and the regulations regarding water 
resources. For my research, I have used public information 
obtained from the Nevada State Engineers Office, the U.S. 
Geological Survey, Nevada Division of Environmental Protection 
and the Bureau of Land Management, as well as data published in 
environmental impact statements.
    I will focus my oral discussion on the hydrologic impacts 
and needed mitigation. My written testimony includes many 
specific examples and specifies many changes in 3809 
regulations that we believe would help. I have also attached 
copies of a couple of articles and abstracts I have recently 
published to my written testimony.
    Pit dewater imposed four primary hydrologic impacts: First, 
groundwater levels lower in the vicinity of the mine, which 
impacts spring and surface water, by changing the flow gradient 
in the vicinity of the mine. For example, there has been a 
spring about 7 miles from the Lone Tree Mine, which went dry, 
presumably due to dewatering. Second, the open pit and drawdown 
cone around the pit are a deficit to be made up after mining 
and dewatering ceases.
    The pit was originally all rock and pore spaces filled with 
water would have made up only about 1 percent of the pit and up 
to 20 percent of the pit that was in alluvium. After mining 
ceases, pit lakes will form with water that must come from 
somewhere. In this regard, the two most impactful mines on 
local groundwater deficits are the Twin Creeks Mine, northeast 
of Winnemucca and the Lone Tree Mine, between Battle Mountain 
and Winnemucca. Twin Creeks will create a 460,000-acre-foot pit 
lake, which will be the second largest man-made lake in Nevada, 
if we include Lake Mead.
    The Lone Tree Mine deficit of almost 1.1 million acre feet 
sits just 2 miles from the Humboldt River. Third, quality of 
water in the pit lakes depends on the source of water refilling 
them. BLM predicts this water quality using complicated 
geochemistry models. However, the models depend on the quality 
of the hydrologic data, including predictions of the inflow to 
the pit.
    I presented a paper 2 weeks ago at American Chemical 
Society which shows the very reasonable assumptions of the 
geology into the pit led to estimates of inflow at the pipeline 
deposit pit for the refill to vary from 8 to over 100 years. 
Fourth, pit lakes will evaporate water in perpetuity. This 
represents a permanent loss of water from the flow in local 
basins.
    The pipeline pit at full development after the several 
piecemeal expansions are complete will evaporate well over 10 
percent of the total recharge. Cumulative impacts of mining are 
rarely considered although NEPA requires such consideration. 
For example, the Humboldt River watershed contains 18 mines 
that are either currently or soon to go below the water table 
and require dewatering. Total deficits from these mines 
represent 62 percent of the water stored in the surface aquifer 
of the Humboldt River.
    Total deficits in the Humboldt River Basin equal more than 
25 years of the entire river flow at the city of Winnemucca. 
Fortunately, I do not own water rights or property I want to 
develop downstream on the Humboldt River. It cannot be 
overemphasized that these impacts are unprecedented in the 
history of mining anywhere in the world.
    While mining companies return large profits from 
underregulated mining, society is allowing a massive 
uncontrolled experiment on the environment of northern Nevada. 
It is not too late to do anything about it, but we are reaching 
that point. The rest of this testimony includes discussion 
about what the BLM could currently be doing and needed changes 
in the regulatory framework. Many of the impacts discussed 
above could be avoided or mitigated by reclamation of the pits, 
including complete or partial backfilling or through adequate 
bonding to either remedy or compensate individuals adversely 
impacted in the future.
    Section 3809 provides BLM's regulations to govern hardrock 
mining permitting. Currently, BLM is attempting to modify or 
reform these regulations. First, I emphasize that the BLM, 
under current regualtions, has the authority to adequately 
regulate and mitigate these impacts. They are reluctant to 
assert the authority so regulatory reform will help them in 
this process, as I will elaborate below or actually in my 
written testimony. BLM is required to prevent unnecessary and 
undue degradation.
    Unfortunately, we focus on surface-to-surface, while 
ignoring the long distance impacts of drawdown and water 
contamination, impacts which may not occur until after mining 
ceases are even more difficult for the agency to consider. 
However, the impacts of drawdown caused by dewatering and pit 
refill clearly impact surface water and land.
    For example, drawdown has already caused sink holes to form 
in Maggie Creek. It has caused springs to dry. When stream flow 
was substantially reduced, the riparian vegetation may dry, 
which is also a surface impact. This type of impact clearly 
reduces the abil-

ity of land, far from the site, to support multiple use, 
including grazing and recreation. I see I am out of time and I 
have a couple pages to go, but I am going to jump to the end to 
finish up then.
    The Sierra Club and Great Basin Mine Watch strongly support 
needed changes in Section 3809 regulations. We also support 
enactment of the Rahall bill, which is H.R. 253, which I 
believe is currently in front of this Subcommittee. Many of our 
concerns will be remedied. Many of the suggested regulatory 
changes would be codified. It specifically refers to the 
protection of water resources. It establishes a fund to clean 
up degradation to surface and importantly water resources 
caused by previous mining.
    The gold mining industry has expanded from a million ounces 
in 1980 to 13 million ounces today. This is a remarkable 
expansion and has led to rapid growth in rural Nevada and other 
States. It is a very important part of the economy of Nevada 
and should remain so. But future citizens of northern Nevada, 
ranchers, farmers, Native Americans and cities should not be 
paying the debts created by present day mining. We request 
baseline standards to protect the environment of northern 
Nevada and the Western United States. Thank you for this 
opportunity to testify.
    [The statement of Mr. Myers may be found at end of 
hearing.]
    Mrs. Cubin. Thank you, Dr. Myers, and I regret that we 
don't have time for your entire testimony to be given verbally, 
but it will be in the record.
    And the next witness we will call on now is Gene Gustin, 
Public Land Use Advisory Council to the Elko County Commission.

 STATEMENT OF GENE GUSTIN, PUBLIC LAND USE ADVISORY COUNCIL TO 
                   THE ELKO COUNTY COMMISSION

    Mr. Gustin. Well, Madam Chairman and Congressman Gibbons, 
welcome to Elko. I sincerely appreciate your willingness to 
conduct this oversight hearing on this most vital issue to this 
area. More importantly, that you are reaching out for 
constituent input is very encouraging, and I am also encouraged 
by your opening remarks on this subject. Having been involved 
in the mining industry in the Western United States for some 27 
years, in several different capacities ranging from tramp 
miner, to superintendent of mining of two large operations, to 
mining claim holder, to owner of an independent contracting 
business serving mining. I have been afforded many different 
perspectives on the evolution of the regulatory regime and the 
political and populist perceptions of the value of mining in a 
modern day life to this country. But how these perceptions and 
attitudes interface with reality and legality is the subject at 
hand today.
    I believe the current efforts to rewrite, through 
administrative fiat, mining rules and regulations that have 
taken over 130 years to evolve and be refined is at best the 
height of bureaucratic arrogance and at worst, a crude 
misdirected illegal power play that simply cannot be tolerated 
by Congress, the States, the courts or the people of this 
country.
    Why are we bringing forth words here today to our duly 
elected representatives asking them to rein in the activities 
of a government employee to run wild? An appointee, within 
whose purported purview it is to write the regulations, 
implement the rules, review and adjudicate the systems 
concerning basic individual rights which violate the separation 
of powers doctrine. This Western United States subject of this 
medieval realm who thought he owned the possessory title in 
mining, grazing, water or agriculture rights and the rights to 
make improvements on such is then dragged through a kangaroo 
gathering called the Court of Administrative Appeals where the 
legislative, executive and judicial branches have been rolled 
into one easy instrument of rule without recourse.
    And what is the alleged mechanism justifying this complete 
bypass of our system of checks and balances and separation of 
powers, the purported proprietary interest of the Federal 
Government in 87 percent of the State of Nevada. Where did we 
go wrong? A series of Supreme Court decisions, most recently, 
the decision of Printz vs. United States, on June 27, 1997, 
where Justice Scalia instructed us, ``The separation of two 
sovereign spheres is one of the Constitution's structural 
protections of liberty. Just as the separation and independence 
of the coordinated branches of the Federal Government serve to 
prevent the accumulation of excessive power and in one branch 
the healthy balance of power between States and Federal 
Government will reduce the risk of tyranny and abuse from 
either front.''
    They even commented in that decision on what a novel 
phenomenon this was, as they hadn't started seeing this type of 
overregulation until the 1970's. Finally, and I quote, we held 
in New York that Congress cannot compel the States to enact or 
enforce a Federal regulatory program. Today, we hold that 
Congress cannot circumvent that prohibition by constricting the 
States officers directly. The Federal Government may neither 
issue directives requiring the States to investigate particular 
problems nor command the States officers or those of their 
political subdivisions to administer and enforce a Federal 
regulatory program.
    It matters not whether policymaking is involved and no 
case-by-case weighing of the burdens of benefits is necessary. 
Such commands are fundamentally incompatible with our 
constitutional system of dual sovereignty. Accordingly, the 
judgment of the Court of Appeals for the Ninth Circuit is 
reversed.
    Now, I know the Honorable Members here today are familiar 
with and understand the intent of the court's instruction, so I 
ask you today, are Members of Congress ready to tackle this 
issue politically and legally or will the burden fall to the 
directly affected parties yet again? Mining is America's 
financial backbone. The mining laws are the last great vestige 
of acquiring proprietary interests by common law principle, 
mixing sweat with soil to earn equity. Mining has made America 
strong without subsidy.
    I have witnessed 70 percent of the mining claims be 
regulated and taxed out of the business in the last several 
years. I have experienced a 40 percent reduction in my personal 
business this year because of an illegal bonding rule 
implementation. Mining has been under an escalating P.R. 
Assault for the past several years. We try to respond with 
reason and logic and compliance and what does it get us, more 
assault and more restrictions.
    The current attempt to rewrite through 3809, through the 
administrator, I believe, is a misdirected effort and I think 
that the Congress ought to challenge, legally, in the Supreme 
Court, to as-

sure that its role in the legislative process is properly 
assured. And I see my time is out, but, again, I thank you for 
the opportunity to present my views on this. Thank you.
    [The statement of Mr. Gustin may be found at end of 
hearing.]
    Mrs. Cubin. Thank you, Mr. Gustin. Our next witness will be 
Edward Presley, National Director of County Alliance to restore 
the economy and environment.

   STATEMENT OF EDWARD L. PRESLEY, NATIONAL DIRECTOR, COUNTY 
     ALLIANCE TO RESTORE THE ECONOMY & ENVIRONMENT (CAREE)

    Mr. Presley. Good morning, Madam Chair and members. I would 
like to also welcome you to Elko, and I thank you for the 
opportunity to give testimony here today before your Committee. 
I am just going to make reference, Madam Chair, to my written 
statement and request unanimous consent it be submitted for the 
record then.
    Mrs. Cubin. Without objection.
    Mr. Presley. I will give a little different view than what 
you have heard from the industry. Obviously, I am one of those 
working in research and working on legal defense teams and 
plaintiff teams, suing the Federal Government, being sued by 
the Federal Government. I am that one that brings that 
unorthodox position that the Federal Government does not own 
the land out here. And we have that position and that question 
before the Supreme Court of the United States now in a petition 
for writ of cert for the October term in a case called United 
States vs. Gardner.
    What I want to provoke you into realizing here today is 
that we can talk all about what has gone on with Mr. Babbitt 
violating the Administrative Procedures Act. We see that the 
mining companies up here who have billions of dollars invested 
out here are held at bay and under extortive measures by the 
Federal agencies and the local managers, and, Madam Chair, I 
would respectfully take some issue with you on your statement 
that the local land managers for the Federal Government are 
doing a good job and it is the bureaucrats back in Washington. 
I somewhat find out there is a bit of a roll reversal that 
occurs there, simply because I was the plaintiff in a case 
called Barton v. Babbitt where we had to bring a civil rights 
lawsuit because of our activist measures that we took out here 
in the public lands issues that the United States Attorney's 
Office was the nest for the Federal agencies and the local 
people going in there trying to get criminal indictments on us 
to commit a chill factor on our activism out here, and we 
successfully brought that, which then shifted from a criminal 
investigation against us and then brought about the United 
States vs. Nye County lawsuit, that was nationally known out 
here.
    Now, I don't want to brand all Federal agents out here and 
all Federal employees, but I do want to tell you that I would 
have not known about that had a Federal agent not supplied me 
with the minutes of the meetings that occurred inside the 
United States Attorneys Office when they were trying to indict 
us, and Mr. Gustin was one of these plaintiffs here, too. What 
we have and what I have given with the visual up here is that 
you see a map of Nevada. Now Federal agencies will color the 
Western United States in various different colors out here to 
commit an optical illusion out here, but that is the truth, 
that 87 percent of black up there puts us under a quasi type of 
military occupation out here, and I will tell you why it makes 
such a bold statement.
    As long as the Federal agencies are in charge of that much 
of the State, there is no common law, there is no State law 
that is applicable, because they operate under only admiralty 
and equity jurisdiction. A lot of people do not understand 
this, that the Federal agencies have no authority to protect 
rights out there on the public lands. Only you at Congress, and 
I would direct your attention to the very last page of what I 
submitted for the record. The courts have told us this, and on 
page 19 of our brief to the Supreme Court, listen to what the 
Court said back in 1850, and it is still good law today, under 
Downes and Midwell. The Constitution deals with the States, 
their people and their representatives.
    The sole object of the territorial clause was to transfer 
to the new government the Northwest territory and to give the 
power to apply that territory to the objects and dictates by 
the States. The Constitution--now listen to this very clearly. 
The Constitution does not extend to the territories of its own 
force. We are not under any constitutional protections and that 
is the problem that is out here, and if you don't quit claim 
the land over to the States, and if you do keep control of it, 
you have to remove all rulemaking from the Federal agencies. 
You cannot have any police power that is vested in these 
Federal agencies. It must be invested in the State.
    You must also statutorily remove all types of litigation 
that go on in public land matters and remove that from the 
Federal judiciary and the administrative law judiciary that has 
been set up. You have it under your power under Article 1, that 
is the only way we will be able to keep our rights intact out 
here and I thank you very much for your time and attention.
    [The statement of Mr. Presley may be found at end of 
hearing.]
    Mrs. Cubin. Thank you for your time. And we will start the 
questioning with Representative Gibbons.
    Mr. Gibbons. Thank you, Madam Chairman, and first, let me 
address a brief question to Mr. Presley, who has just recently 
finished his testimony, and I would ask a very brief analysis 
of how you came about the conclusion that the Federal 
Government does not own the land here in Nevada, if you could 
do that very briefly for us.
    Mr. Presley. Thank you, Congressman, good question. It was 
in 1993, I had a client that had a problem with the Bureau of 
Land Management on grazing, and, also, there was some mining 
problems in Clark County, dealing with the desert tortoise 
issue down there, of which there was a full force and final 
decision that came out, full force and effect decision that 
came out to remove grazing from the desert tortoise habitat.
    Now, they are under the Endangered Species Act, and the 
first thing I noticed, since we had come through the Nevada 
legislature in dealing with AB-77, the so-called sage brush 
rebellion 2, was that it didn't appear that the Federal 
Government owned any property out here, I will say, except 
Nellis Air Force Base and that is within Article 1, Section 8, 
Clause 17. So my forte is in the Freedom of Information Act and 
I performed a Freedom of Information Act request to the 
Department of Interior, BLM, and their Solicitor took charge of 
my request and came back and said they had no documents 
responsive to my request when I asked them for the deed to this 
land.
    But since then, what has happened out here is that they 
have claimed ownership under the Treaty of Guadalupe Hidalgo of 
1848 when we had the conquest against Mexico. They are claiming 
that as their jurisdiction here today, which clearly makes that 
black encampment there of Nevada a territory and enclave of Mr. 
Babbitt, and there is no State there. The only place that there 
is State, members of the Committee, the only place that is the 
State of Nevada are those white spots up there and they are 
noncontiguous and we are beholding to these Federal agencies to 
get from point A to point B, so we are not a complete State.
    And Madam Chairman, you have the same thing in Wyoming, Mr. 
Hansen would have it over in Utah, and in Alaska, Mr. Young 
certainly deals with that. That is what brought the question 
about they didn't have it and I tried to zero all of my 
research and for the arguments and for the Nye County case and 
now the Gardner case, I zeroed it in that they do not own the 
land because they couldn't produce title and that is the 
question we have before the Supreme Court of the United States, 
which I am here to say, unequivocally has never been before the 
Supreme Court of the United States in the 200 plus years of its 
existence. Thank you.
    Mr. Gibbons. Thank you. Dr. Myers. I presume your Ph.D. is 
in science of some sort.
    Mr. Myers. My Ph.D. is in hydrology.
    Mr. Gibbons. Hydrology. How would you abate or stop the 
water table drawdown due to an open pit mine? How would you 
stop that, in a surrounding area?
    Mr. Myers. During mining, the water table has to drawdown.
    Mr. Gibbons. We understand that, how would you stop that.
    Mr. Myers. Through recharge in the local basin. Part of 
what I had to leave out was testimony that, in fact, there are 
a few mines that are recharging the local basin. It is not 
working as well as it is supposed to. There are other mines 
that should be recharging better. We have argued, in 
environmental documents, certain mines should be recharging. We 
will argue it is only done where it is a very inexpensive thing 
to do.
    Mr. Gibbons. Let me move on, and understanding that issue, 
you talked about some mines that are not recharging and 
suppose, for example, let's take the Lone Tree Mine, which 
takes its water, cleans it, puts it into the Humboldt River and 
sends it down to Rye Patch Reservoir for farmers and ranchers 
to use. Is there a problem with the water quality in that water 
they are putting in the Humboldt?
    Mr. Myers. I don't recall constituent problems, I mean, 
specifics. I know there were temperature problems, the 
temperature in the Humboldt River increases rather 
substantially from just above their discharge point to just 
below and that is because the water is geothermally heated that 
they are dewatering.
    Mr. Gibbons. Let me ask another quick question. If water 
rights, in probably 16 of the 17 Western States are State 
prerogative, I mean a State jurisdictional area, why should the 
Federal Government step in and deal with water, water rights?
    Mr. Myers. Well, for one, the 3809 regulations specifically 
state the BLM is required to enforce State law and we would 
argue that if the State is not adequately doing it, then the 
BLM is required to do that.
    Mr. Gibbons. And you have a complaint with Nevada's 
environmental treatment of its water within a State then?
    Mr. Myers. We do.
    Mr. Gibbons. Then it would be better, I presume, under your 
testimony to go tell the State of Nevada to change its water 
quality laws.
    Mr. Myers. But since we are focusing on 3809 today, it 
specifically states, in several different locations in those 
regulations that the BLM is required--excuse me, is required to 
enforce State regulations. It doesn't say where the State fails 
to do so, but it says the BLM is responsible for seeing to it 
that that is enforced, and that would be a BLM oversight. I 
mean, previous speakers have talked about the BLM having a 
responsibility for oversight.
    Mr. Gibbons. You also mentioned that due to the drawdown on 
some of these areas, the water table has lowered, and some 
people should be compensated for that. Who is not now 
compensated for the drawdown of the water table that should be 
compensated for?
    Mr. Gibbons. We would suggest that most of the impacts will 
occur, actually, after mining has ceased, after the pits have 
refilled, when you draw the water table down a thousand feet, 
1,300 feet at a couple of places, that that drawdown cone 
continues to expand after mining ceases. The pit refills, I 
mean, for example, you mentioned Lone Tree, there is 1.1 
million acre feet of deficit being created around that mine. 
The Twin Creeks Mine has 660,000 acre feet of deficit. That 
water is going to come from somewhere and we don't know--I am 
not going to say it is all coming from the Humboldt River.
    What I am saying is we don't know where it is coming from 
and for those reasons we would suggest adequate mitigation, 
bonding and escrow account would be set-aside so 30 years from 
now the people who are affected could be compensated or the 
situation could be remedied.
    Mr. Gibbons. Mr. Gustin, let me turn to you now briefly in 
the time I have remaining. What suggestions would you have as 
to how to better resolve the conflicts that you stated in your 
testimony, in terms of regulatory authority, State powers, 
Federal powers, what would you suggest?
    Mr. Gustin. Well, to me, the only way this is going to be 
resolved successfully is that the people who live in the areas 
that are affected have a lot more authority to say how things 
are done. I realize that in general, that might create a little 
fear in the hearts of mining industries, but I am pretty sure 
that when the State assumes a much larger role, that you will 
see consistency from States.
    The State of Nevada has been a leader in mining regulation, 
and it works well. We have the most experience with that, and 
as has been previously testified, I believe that the experience 
that is gained in places like Nevada can be transferred 
anywhere else and a lot of States look to Nevada for leadership 
on this issue.
    Mr. Gibbons. You mentioned also in your testimony that your 
business has been specifically impaired or harmed by current 
regulation changes, and maybe you could help this Committee a 
little by explaining how the new bonding requirements or the 
changes in 3809 have specifically impacted your business and as 
you see it, how has it specifically impacted mining operations 
on public land in the State of Nevada.
    Mr. Gustin. In early March, while I have been in business 
for roughly 18, 19 years in the exploratory end of things, in 
early March, it looked like another routine year as near we 
could tell. We were getting our level of inquiries as to 
drilling on projects on public lands.
    Once it was announced that there were proposed changes on a 
30-day comment period on the bonding, for almost 6 months, 
nobody knew what to do, nobody could get drilling permits. I am 
sure that our businesses suffered 50 percent as well as many 
other people I am aware of in the industry. Many times, the 
regulatory agencies failed to consider not only the direct but 
the indirect impacts, I mean, all the way down to the mom-and-
pop grocery stores and gas stations and everybody in the State 
of Nevada had become very dependent upon the expenditure of 
exploration dollars in this State, which are currently off, 
probably 70 percent, from where they were 3 to 4 years ago.
    I don't know how 1997 is going to shape up, but I am sure 
it is going to be a significant decrease, even the major mining 
companies had difficulties going outside their operations plan 
area to even get a small permit for any level of disturbance, 
so myself, we have seen our business off 40 percent, cutting 
salaries and having to lay people off and that kind of thing. I 
don't see any resolve until the States have more of an ability 
to affect this process and it is not controlled out of 
Washington, DC, or at least if it is controlled out of 
Washington, DC, it is through our duly elected representatives 
here today, and, you know, we have about compromised ourself 
out of existence here, trying to get through this, and I don't 
follow the industry closely per se, but, you know, when you 
have large capital investments, and you have to project over 
long periods of time, these kinds of attack through the 
regulatory process, like on bonding, it is just devastating, 
just devastating, and we can't tolerate much more of that kind 
of activity.
    Mr. Gibbons. Thank you, Madam Chairman.
    Mrs. Cubin. Thank you. I think I will start with Dr. Myers. 
I am not trained in hydrology, as Representative Gibbons said 
earlier. I am a chemist, so I do know, or at least have an 
opinion on, I guess, as every other scientist would have to 
say, on what is good science and what is not good science, and 
that is one of the key areas of conflict over a lot of 
environmental things. People who don't know much about science 
and scientific models don't know how to judge whether they are 
getting good science or not, and I find today I am sort of 
placed in that position because I don't know much about 
hydrology. So I guess I just should ask, does the State--I am 
sure the State engineer has seen your opinion and testimony 
today. And does he give credence to your analysis or are you at 
odds.
    Mr. Myers. Well, I hesitate to speak for the State 
engineer. He acknowledges that there could be impacts in the 
Humboldt River Basin, but he has not--he, of course, does not--
well, basically, about 15 years ago, the State of Nevada made a 
decision that it was going to support the mining industry and I 
believe we are reluctant to really strongly enforce it.
    I mean, there is a policy of the State engineer to not 
allow groundwater withdrawals to exceed the recharge in a 
basin, unless it is on a temporary basis, and that is what we 
are doing, you know, some of these withdrawals exceed the 
recharge, but only temporarily. We, of course, have a concern 
then. I mean, our mine is projected to last to the year 2036. 
That begins to stretch the definition of temporary, I think.
    Mrs. Cubin. I don't want to put words in your mouth, just 
as I didn't before, but you seem to be saying to me that if the 
State engineer won't enforce Nevada's ground water laws, then 
the BLM ought to step in and do that; is that right.
    Mr. Myers. I believe they have the authority--well, the 
State engineer is required to interpret the laws, and to 
enforce them as he sees fit, and he is doing so, we would argue 
about that interpretation, I think is the best way I should 
characterize that.
    Mrs. Cubin. OK, then, question. Do you think the BLM ought 
to come in then and enforce or interpret Nevada's environmental 
laws?
    Mr. Myers. I think they have a requirement to, at least 
with regard to, for example, the Clean Water Act, them and the 
EPA together. They need to protect the public lands of Nevada. 
Their job is to prevent unnecessary and undue degradation. If 
contaminated water or drawn-down springs is causing unnecessary 
and undue degradation, and we would argue that it does, then I 
believe the BLM has the authority and needs to do more about 
that, and the problem is that some of these impacts may be 7 
miles offsite. How do we argue the current regulations specify 
or imply surface disturbance and it implies, due to the mine, 
right at the mine, but a dry spring, 5 miles away, is also an 
impact on the surface.
    Mrs. Cubin. But Nevada does, in fact, have primacy on the 
Clean Water Act, and the Federal Government granted that 
primacy, so for me, it is hard to get the balance there. I 
mean, I just--well, go ahead.
    Mr. Myers. The EPA also would have oversight on that 
primacy, though, I believe, and I will give one specific 
example. On the Jerritt Canyon Mine, we got from the Division 
of Environmental Protection, about an inch of water quality 
reports. All throughout them, there are specifics where water 
quality standards were not met. There has been nothing done 
about these particular----
    Mrs. Cubin. Who is that from?
    Mr. Myers. The Nevada Division of Environmental Protection. 
That is why we will argue that the BLM does need to look, you 
know, they have an authority there that they really should help 
encourage better enforcement.
    Mrs. Cubin. But Jerritt Canyon is Forest Services isn't it.
    Mr. Myers. I'm sorry, Jerritt Canyon is Forest Service, 
that is correct. But the point deals with, you are asking about 
the State enforcing the Clean Water Act. That is the instance I 
have on top of my mind at the moment. There are others. There 
are instances, I believe at pipeline and others that we have 
collected the data, we look at it, and we are just building a 
large pile of that evidence right now.
    Mrs. Cubin. And surely you can sympathize with those of us 
who aren't experts in hydrology trying to figure out who to 
believe.
    Mr. Myers. Yes, and I would like to emphasize, what we 
emphasize with regard to water quantity and hydrology, I am not 
the water quality expert here. I tend to focus on water 
quantity. We try to emphasize the uncertainty of the problem. 
We think we are permitting with a great deal of uncertainty and 
one of the only ways to get around an uncertainty is through 
bonding and through mitigation.
    Mrs. Cubin. And I don't know of anyone that questions 
whether or not bonding is necessary. I think everyone believes 
it is. I guess it is how we go about deciding what that bonding 
should be that is in question--no, not what the bonding should 
be, how the bonding should be derived and whether or not there 
ought to be public input and apparently the BLM thinks there 
should not, and I certainly think there should but that will be 
decided in court.
    You mentioned our colleague on the Subcommittee, Mr. Rahall 
of West Virginia and the mining law reform bill that he 
introduced in this Congress again, which has been referred to 
this Subcommittee. What you didn't mention, so I will, and it 
is not your obligation to mention it, is the fact the last 
Congress did pass several reforms to the 1872 Act and that the 
1872 Act has been amended many times throughout the years, and 
I mentioned in my opening statement that the bill, H.R. 2491, 
among other things, established a trust fund for abandoned mine 
land reclamation, which we were careful to put in the hands of 
the State, by the way.
    What that bill did not do, and what the Rahall-Bumpers bill 
wants to do, is to create incredible disincentives for 
investment in public lands, because that bill requires so-
called suitability reviews. And I would say that no prudent 
miner or prospector would invest the huge sums of money that 
are necessary to develop a new mine if they are really subject 
to anyone claiming the faintest harm to things like impairment 
of view shed aesthetics, any kind of lawsuit that could come 
forward.
    I think what the Rahall-Bumpers bill would essentially 
eliminate is any new mining period, and while I certainly agree 
and respect that you have every right to hold your opinion 
about that bill, I hope that--well, no, I don't hope that, but 
I certainly have my right to that bill and the authority 
whether or not to bring that bill in and mark it up. I think we 
offered some good amendments to that 1872 bill. And to Mr. 
Gustin and Mr. Presley, both of you presented very thought-
provoking testimony, and, frankly, Mr. Presley, I really, 
really hope you win, but that is in the Supreme Court right 
now, and so I don't think I or anyone on the Committee really 
can take any sort of a professional stand on that.
    As a duly elected Member of Congress, I am mindful of the 
property clause, Article 4, Section 3, Clause 2, which does, 
indeed, state that Congress shall have the authority to make 
all the meaningful rules and regulations concerning disposal of 
public property and the territories, but, unfortunately, 
previous Congresses have al-

lowed the executive branch to encroach on what truly ought to 
be our jurisdiction, and we are trying, we are working every 
day, to try to get that authority back because I believe 
constitutionally it was granted to the Congress and not to the 
executive branch. Would you like to comment on that?
    Mr. Presley. Yes, Madam Chair. You raise the Achilles heel 
point to this whole problem we have out here with 3809 
atrocities that occur. The property clause has been misapplied 
inside the States, inside our State and inside your State. 
However--and I fully appreciate the fact that through the 
political process, that Congress has to nibble back at this, 
when you have got, you know, Representatives in Congress like 
Mr. Rahall, who are coming from clearly the opposite end of the 
envelope. But you may want to have your legislative counsel 
back there really delve into the Administrative Procedures Act 
and what it actually applies to.
    You see, there is a misconception out here that it applies 
to the Code of Federal Regulations and gives autonomy to the 
Federal agencies and promulgating rules to implement the 
statutes of Congress and that simply is not the case. As a 
researcher, when I go in, I don't only look at the Code of 
Federal Regulations, of which 3809 came from, I will look at 
their handbooks and their manuals and the Administrative 
Procedures Act mainly applies to those handbooks and manuals 
and that Congress still has the regulatory power over these 
agencies.
    And here is my specific suggestion to you, and an 
introduction of legislation, that when you have something 
involving the public lands out here, until the ownership issue 
is addressed, or you are able to muster enough to get a quit 
claim deed to the State of Nevada and the rest of them, what 
you do do is you put something in the legislation that says, 
``and we really mean this.''
    In other words, if there are water rights out there on the 
public lands and the Federal agencies are going to manage, you 
must say that you cannot make those attacks on those decries 
and those adjudications that have happened at State Court, 
specifically, rights acquired under common law of the State 
shall be supreme in the implementation and management of 
Federal land managers under the public lands. That would go a 
long way with us. I have been in the administrative courts. I 
have brought an Administrative Procedures Act case. The Federal 
judiciary of administrative courts just simply say you don't 
have any rights out there.
    So you see there is no remedy at law for us when we are in 
the adjudicating process and that costs the client hundreds of 
thousands of dollars. Just one little thing like that in 
legislation that says the common law of the State that has 
brought about the recognition of those rights on public lands, 
grazing and whatever, mining, especially, would go a long way 
in curing everything. Thank you.
    Mrs. Cubin. Thank you. And thank all of you for your 
testimony. We will be calling the next panel forward at this 
time. Royce Hackworth, Dr. Anthony Lesperance, Zane Miles, 
Michael, because I am not even going to try your last name. You 
can tell me how you, how to say it when you get here, and John 
Carpenter, please come forward.
    Thank you. We will begin this panel with Royce Hackworth, 
of the Elko County Commission.

 STATEMENT OF ROYCE HACKWORTH, CHAIRMAN, ELKO COUNTY COMMISSION

    Mr. Hackworth. Madam Chairman Cubin and Congresswoman 
Gibbons, I am Royce Hackworth, Chairman of the Elko County 
Commission and owner of Hackworth Drilling, Inc. I want to 
welcome you to Elko, and I appreciate the Subcommittee coming 
to the people and the area where the revision of 3809 
regulations will effect. It shows the mining industry and the 
residents of Elko County and the United States the willingness 
and the concern we have had with getting the facts, and whether 
the BLM needs to rewrite the 3809 regulations.
    Elko County is 10.9 million acres in size and yet only 28 
percent of it is under private ownership. The other 
approximately 72 percent of the county is public lands under 
Federal Management. On public lands in Elko County, the mining 
industry does explore for and find many valuable mineral 
deposits, such as gold, silver, copper, barite bentonite and 
gypsum, just to name a few.
    The mining industry creates many good paying jobs in 
exploration and development of these resources. On average, 
industry pays in excess of $38,000 a year plus benefits in the 
jobs it creates. Jobs that are created employ people with 
Ph.D.s, all the way down to those who did not complete high 
school. The mining industry creates good-paying jobs for men 
and women alike. These high-paying jobs are at the level where 
their employees do not depend upon State and Federal subsidized 
housing, food programs, health care programs, to live the 
American dream.
    In fact, the industry and their employees pay taxes to 
support those who depend upon State and Federal programs just 
to live. And with the current change in legislation coming 
about, we see a shift moving back to the States and from the 
States back to the county to help pay for these programs. My 
concern is the change in attitude toward the mining industry by 
the Federal agencies, by the implementation of undue and 
excessive regulation.
    What troubles me is the method and the reasoning the BLM 
has used in deciding to change the 3809 regulations. I do not 
believe, nor will I accept the Secretary of the Interior having 
the power to circumvent the NEPA process and Congress in 
changing 3809 regulations. The BLM does not clearly define a 
purpose and need along with a definitive and specific proposed 
action for public scoping as NEPA regulations require that EIS 
briefly specify the underlying purpose and needs to which the 
agency is responding in proposing the alternatives, including 
the proposed actions.
    When the Secretary makes a statement, it is plainly no 
longer in the public interest to wait for Congress to enact 
legislation. I fear for the future of our country. For the 
framers of our Constitution or you as duly elected Members of 
Congress should or would believe that any Federal agency could 
obtain or try to circumvent the powers given to Congress. 3809 
regulations are not an impending emergency or a national 
security, so why should the Secretary be permitted not to 
follow the normal NEPA process or circumvent congressional 
wisdom.
    The Federal public land agencies cannot, nor should not be 
given unlimited ability to create regulations without 
congressional oversight. Let me give you a couple of examples 
of regulations run amuck by the Federal land agencies in our 
county. Here in Elko County, U.S. Forest Service employees of 
the Humboldt Toiyabe National Forest are protected by agency 
regulations that prohibit them from being subpoenaed to testify 
before a grand jury, a classic example of a Federal employee 
being immune from the laws that every citizen of the United 
States has to abide by.
    Where logic doesn't work when it comes to Federal land 
managers, just following the regulations they are in charge of, 
we have Jarbidge Community Cemetery. Elko County is trying to 
obtain a 1-acre addition to expand the current cemetery. The 
U.S. Forest Service comes back to the county with a 20-year 
lease for the 1-acre parcel.
    The county is in a dilemma. We do not know whether to 
rename the cemetery the Jarbidge Community Time Share Cemetery 
or the Jarbidge Lazarus Cemetery. With the current boldness of 
the Federal land agencies in creating new regulations, I feel 
they believe they have been granted a higher power of 
authority. However, I do not believe they will be able to raise 
the dead every 20 years to renew their cemetery lease. This 
year the BLM enacted new bonding requirements for claim holders 
on public lands, without following the NEPA process correctly. 
This is just putting more nails in the coffin for the mining 
industry in the United States.
    We have already seen a 70 percent reduction to claim 
holders when the hundred dollar holding fee per claim was 
enacted. By not encouraging people and companies to look for 
mineral discovery here at home, we are driving the mining 
industry outside our country of good paying jobs. I am here 
today as a county commissioner asking you to please stop the 
BLM from enacting undue regulations on the mining industry. 
Current regulations are being handled by the States and current 
Federal law. Please use whatever power you have to curtail the 
Secretary of the Interior for not following the true NEPA 
process in creating regulations.
    Also, I am asking you to invoke newly enacted bonding 
regulations and have the bonding regulations go through the 
true NEPA process that defines the purpose and needs in a way 
the law intended it to be enacted. In the State of Nevada, we 
have a comprehensive, regulatory environment to protect the 
citizens and the lands in our State and I thank you for the 
opportunity to make this testimony.
    [The statement of Mr. Hackworth may be found at end of 
hearing.]
    Mrs. Cubin. Thank you, Mr. Hackworth.
    Next, we will call on Dr. Anthony Lesperance. You tell me 
how to say your name.

  STATEMENT OF ANTHONY L. LESPERANCE, ELKO COUNTY COMMISSIONER

    Mr. Lesperance. You did pretty good. I can't even spell it 
yet. Madam Chairman and Congressman Gibbons, I request 
unanimous consent that my statement and the attached exhibits, 
which are two lawsuits, be made part of the record. I consider 
these lawsuits very, very important.
    Mrs. Cubin. Without objection.
    Mr. Lesperance. Thank you. Today, you are hearing much 
about the 3809 regulations and impact that the actions of this 
nature have upon the economy. Our business, Great Basin 
Agriculture, has been a major player in mine and exploration 
reclamation. Consequently, we are in a unique position to 
engage the impacts of regulation, such as 3809.
    Without belaboring the point, it is sufficient for me to 
say those impacts are very significant. Perhaps it might be 
more important--more appropriate to analyze why regulations 
like 3809 occur to begin with and what actions of this nature 
might really represent. Every single department of the Federal 
Government is a bureaucracy. Bureaucracies must either grow or 
stagnate.
    How do bureaucrats make a bureaucracy grow? Very simple. 
They either increase the mass their agency regulates or 
increase the complexity with which it regulates. Either action, 
if successful, increases job security, promotion, and all the 
benefits associated with bureaucratic growth. That is how 
regulations like 3809 come into being. The 3809 is only the tip 
of the iceberg.
    Growth of bureaucracy is difficult enough for those of us 
who produce weather to contend with, but when the bureaucracy 
becomes unethical, it presents a set of problems that at best 
are almost impossible to deal with and at worse, could well 
lead to total anarchy. It seems to be a given that 
bureaucracies must grow. Only you in Congress can control that 
with fiscal restraint, a fact which despite all the rhetoric, 
Congress has failed to do, but what about the ethics of the 
bureaucracy.
    Let's examine the ethics of agencies we here in Nevada most 
frequently deal with, the land management agencies. I will 
briefly mention a few events central to ongoing litigations. 
The cutting of fences or opening of gates so that legitimate 
reasons can be found to trespass livestock permittees; the 
mechanical covering of springs with dirt to disallow further 
use of water from those springs for irrigation; the movement or 
hiding of historical survey markers to confuse issues on 
location; the hiding or destruction of the historical documents 
absolutely necessary for settling of disputes; the physical 
changing of monitoring data to make livestock grazing look 
damaging; the hiring of so-called experts to present distorted 
historical and factual data to support agency position.
    The elimination of years of outstanding research, because 
it no longer supports philosophy and, yes, even the threat of 
death if one dares to oppose the government action including 
the taking of personal property, and 3809 is simple. Just 
compound the bureaucratic red tape until complying becomes 
physically and financially impossible. Agencies that control 
the public domain want full control and that includes water.
    I am aware of no less than six litigations between private 
individuals, political bodies, water districts and others and 
the United States, concerning water rights here in Nevada. The 
United States Forest Service leads a parade, close behind is 
the Department of Interior, including BLM and the BIA. Control 
of water in the West is control of all that occurs in the 
landscape, including mining.
    I will call your attention to two of these litigations. I 
am providing you copies of both the suits, the first involving 
the Truckee-Carson Irrigation District, requests repayment of 
1,057,000 acre feet of water, including interest, for water 
allegedly stolen from Pyramid Indian Reservation between 1973 
and 1988.
    I will not go into the details of the ramifications, but 
loss of this suit would bring upon the water users of the 
district, as well as the towns of Fallon and Fernley, but it is 
sufficient to say the results of losing that suit will be 
catastrophic. Worth more concern, however, is the case known as 
the Walker River suit.
    The United States is laying claim to all water of the 
Walker River watershed from the crest of the Sierra Nevada 
Mountains in California, to and around Walker Lake in Nevada. 
Their claim includes all surface water, as well as under 
groundwater within the entire basin. Theoretically, if won, the 
water would be transferred to the Walker River Indian 
Reservation for beneficial use. However, what seems to go 
unnoticed is much of the land being claimed by the government 
for the reservation, includes mountains totally capable of 
being irrigated.
    Further, the reservation does not want the water, although 
again that doesn't seem to be very important in the eyes of the 
government. The distasteful part of the Walker River case is 
the fact every water user for the reservation will lose their 
water. That includes 1,200 active claims, resolving certainly 
what must be the single largest takings case in the history of 
this country.
    Finally, I would call your attention that you must never 
forget that all wealth, by its very definition, ultimately 
comes from the land of the associated waters. When you regulate 
the ability to create wealth out of existence, it will be but a 
few short years before our national economy is in shambles. Add 
to that the ever-increasing takings of private property rights 
and anarchy will surely follow. Thank you.
    [The statement of Mr. Lesperance may be found at end of 
hearing.]
    Mrs. Cubin. Thank you very much. I21The next witness will 
be Zane Miles, Deputy District Attorney for Eureka County.

   STATEMENT OF ZANE MILES, DEPUTY DISTRICT ATTORNEY, EUREKA 
                             COUNTY

    Mr. Miles. Thank you, Madam Chairman, Congressman Gibbons. 
I convey the regrets of Pete Chiny, our County Commissioner 
Chairman, that he can't be here today. Pete is back in 
Washington to testify today before another committee on another 
interior matter, and you have me as a substitute.
    Mrs. Cubin. We are glad to have you.
    Mr. Miles. I again would ask that our written remarks be 
incorporated in the record and we will excerpt them very 
briefly today.
    Mrs. Cubin. Without objection.
    Mr. Miles. You know, perhaps the most disturbing current 
trend in the Department of Interior is apparently, it is 
believed, that the bureaucracy in Washington, DC knows what is 
best. The bureaucrats regularly ignore local government, just 
as they regularly ignore the Congress of the United States. It 
is appalling to me that Secretary Babbitt can declare that 
since Congress has chosen not to act on some of his pet 
projects, that he will impose his beliefs anyhow by adoption of 
bureaucratic rules and regulations.
    I would suggest to you that Secretary Babbitt take the same 
oath you did and that I did and protect and defend the 
Constitution of the United States, and what he is doing is such 
an egregious violation of the concept of separation of powers 
that I find it appalling that Congress has not found some way 
to draw rein upon such a headstrong approach.
    On a State and local level, the State of Nevada and 
Nevada's mining counties have an excellent record of common 
sense of environmental and other controls of the mining 
industry. Our enforcement is thorough, thoughtful, unbiased, 
complete, effective, and accomplished with due regard for the 
benefits resulting from mineral development.
    If Congress, in its wisdom, is to decree that environmental 
rules are to be applied to small sites, like the new 5-acre 
rule, the Nevada Division of Minerals and NDEP, Department of 
Environmental Protection, and the local district attorneys will 
enforce those laws. We have done so in the past, and in other 
contexts.
    Ironically, when I got into Elko yesterday, I picked up 
Saturday's edition of the Elko Free Press, and on the front 
page is a rather lengthy story, headlined, ``State Fines 
Newmont $23,500.'' Newmont mining is a very environmentally 
responsible organization.
    Our county is the largest coal-mining county in the world, 
and we work closely with Newmont, Barrick, Homestake, Placer 
Dome, the others, and Newmont does a good job, but they can 
have problems just like anyone else; mistakes can occur. And 
when the mistake did occur in this case, the State stepped in 
and took administrative action. Had the administrative action 
not been sufficient, the State would have come to the local 
District Attorney's Office and asked us to take criminal 
action, which we would have been authorized to do. That hasn't 
been necessary at this point, it has occurred in others.
    I will give you another example. In Lander County, the 
county to the West of us, a few years ago, there was a very 
small migratory bird kill where some birds got through netting 
and managed to get into a cyanide-laden pool. As I recall, the 
fine in that, for the death of two migratory birds, two ducks, 
was $50,000, $25,000 a bird, and that matter was handled by the 
State Department of Wildlife and the local District Attorney 
there in Lander. There is no need that we can see to bring in 
Federal regulations and Federal agents to enforce what the 
State of Nevada is already doing and doing very well. If there 
are two things I can leave with you today as thoughts, it would 
be these.
    First, I feel that Congress must take its lawmaking powers 
more seriously, take back the rules, and sharply limit the 
power of unelected bureaucrats to make rules and regulations 
with the force of law, and, second, where Federal laws, rules 
and regulations are needed, Congress should mandate that its 
laws be enforced in the State and local governments if the 
States and local governments are willing to do so. Direct 
Federal enforcement is unnecessary unless States and counties 
refuse to act. That has certainly not been the case in Nevada. 
Again, thank you very much for coming to gold country to hear 
what we have to say.
    [The statement of Mr. Miles may be found at end of 
hearing.]
    Mrs. Cubin. Thank you very much, Mr. Miles, and we are glad 
to have you here, even though your boss had to be some place 
else. We might have even picked you, you don't know.
    Next, I will ask Mayor Michael Franzoia.
    Mr. Franzoia. That is exactly right, good pronouncing.
    Mrs. Cubin. Thank you.

     STATEMENT OF MICHAEL J. FRANZOIA, MAYOR, CITY OF ELKO

    Mr. Franzoia. Thank you, Madam Chairman and Congressman 
Gibbons for allowing me to have the opportunity to address you 
today. I personally welcome you to the great city of Elko. You 
are here today to listen to testimony regarding the mining 
industry. As a citizen of this city for the past 17 years, I 
would like to share with you the impact we have experienced for 
mining. All of this I have witnessed firsthand.
    Elko continues to be a growing, thriving community. In 
1980, our population was less than 10,000 people. We now have a 
population that approximates 19,000 and we are projected to 
reach a population of nearly 31,000 in the next 15 years. 
Initially, this growth represented impact challenges to our 
high quality of life, but to these challenges, the community 
began receiving many things we otherwise may have waited for 
and perhaps would never have realized.
    Growth has been good for Elko and the mining industry has 
played an important role in our success. Let me give you a few 
examples. To bring new families into the area, the mining 
industry invested in permit quality housing developments. This 
moved Elko away from being a boom town in a traditional sense, 
a traditional boom town is one that grows temporarily, then 
upon industry downturn, literally moves out. Permanent 
investment into Elko by the mining industry ensures long-term 
community sustainability.
    Another one, investment by the mining industry into our 
recreational facilities enables us to offer activities to 
citizens and visitors of all ages. Donations in cash and 
services to recreational projects include equipment, parks, 
sports fields and a ski facility. Access to cultural activities 
and events have improved for all of us.
    Our museum is in the middle of a major expansion, the 
Western Folk Life Center, which is a major attraction for 
citizens and visitors alike, and the Great Basin College now 
has a theater where we can enjoy a variety of entertaining 
performances. All of these are benefactors of the generosity of 
the mining industry.
    Education has been enhanced in Elko. What was once known as 
Northern Nevada Community College is now Great Basin College. 
This fine institution offers education and training in a wide 
variety of fields, including mining technology, and we are all 
watching for this institution to become a 4-year college in the 
near future.
    The mining industry and its employees have been great 
supporters of our college, as well as our public school system. 
A new junior high is now in use in the Spring Creek area thanks 
to the mining industry's major contribution to the project. We 
are glad this indus-

try has impacted our community. It has been a positive impact 
on our quality of life.
    Any legislation regulations that harm mining is certainly 
not in the best interest of this community and any impact 
should be considered on the impact that it has with our 
community. I would like to thank you for providing me the time 
to share this excitement I feel about the city of Elko and our 
growth and the things we have to celebrate in our community, 
much as a result of our mining industry neighbors. Thank you 
again.
    Mrs. Cubin. Thank you, Mayor.
    Our next witness will be Assemblyman John Carpenter, but 
before he testifies, I would like to let everyone know that 
Senator D. Rhoads was invited to this hearing to testify as 
well, but he did have a prior commitment and he is submitting 
his testimony for the record. I understand he is on a cattle 
call and coming from Wyoming, I know how important that is. 
Assemblyman Carpenter.

  STATEMENT OF JOHN CARPENTER, ASSEMBLYMAN, NEVADA LEGISLATURE

    Mr. Carpenter. Thank you, Madam Chairman and Congressman 
Jim Gibbons, my fellow assemblyman a few years back. I would 
like to put a little different spin on the situation of mine 
dewatering Dr. Myers told you about. I think that our big 
problem with mine dewatering is going to come when the mines 
want to quit dewatering. At that time, there are going to be 
many agricultural interests that have come to depend upon the 
mine dewatering and they are not going to like to see those 
pumps shut off.
    The great wetlands that have been created by mine 
dewatering, people are not going to want to see them dry up, 
but I do think one thing will happen and that is Nevada is 
going to have some of the best fishing holes in the world.
    In regard to the Nevada legislature's concern about the 
hardrock mining regulations, their changes, after joint 
hearings, the legislature adopted Assembly Joint Resolution 
Number 7, which expresses outrage over the procedures followed 
by the United States Bureau of Land Management in adopting the 
new rules. The resolution outlines procedural issues and urges 
the Secretary of the Interior to suspend or withdraw the rules.
    In the packet that has been handed to you is an actual copy 
of the resolution. It goes on to state many of the problems 
that have been expressed here today. I think that you can read 
the resolution and see for yourself that the legislature of the 
State of Nevada was very concerned about this kind of 
rulemaking. I would like to remind you that the Nevada 
legislature that passed this resolution comes from the most 
urban State in the Nation. You would not think that with our 
open spaces that we would be the most urban State in the 
Nation, but with the majority of the population in Las Vegas 
and Reno, that is the situation. So I think it goes to show 
that the urban people are concerned about rural Nevada, and so 
that when people from Washington, the bureaucrats, start taking 
pot shots at us, everybody gets up in arms.
    As you are aware, the rule was not withdrawn and it took 
effect on March 31, 1997. Not having been successful in getting 
the rule modified, the legislature recognized the need to 
assist miners in complying with its requirements. The Senate 
bill 440 was enacted. The measure expands Nevada's existing 
program through which mining operations and exploration 
projects can obtain performance bonds to ensure reclamation of 
their mine sites.
    Under existing law, operations that disturb 5 acres of land 
or more in a calendar year are eligible to request a bond 
through the State bond pool. Senate bill 440 expands the 
eligibility to include operations that disturb less than 5 
acres per year as required by the Federal regulations, as well 
as projects of any size that must post a reclamation bond 
pursuant to county requirements.
    I believe that the new bonding regulations are just a 
continuation of Secretary Babbitt's war on the West. In regard 
to mining, without small miners on the ground doing 
prospecting, much of our large mines would not exist. I think 
that if Secretary Babbitt feels that if we could shut off this 
exploration as Chairman Hackworth said, we will drive another 
nail in the coffin of the miners. These regulations are having 
a very adverse effect on our livestock industry here. 
Utilization standards on riparian areas are driving our 
ranchers off the land, there is no question about it.
    Mrs. Cubin. Feel free to give your entire testimony if you 
want to.
    Mr. Carpenter. It is too long, I don't want to do that. I 
would just like to say, though, that Congress must exercise 
veto power over agency regulations. It seems no one can control 
the bureaucracies, even cutting the budgets does not seem to 
help. And so the agencies are forced to comply with laws. No 
citizen is safe from the tentacles of unnecessary regulation.
    In Nevada, we now have--the legislature has the authority 
to veto any agency regulations. As Jim will remember, the 
legislature passed a statute to give us that authority. The 
Governor did not like that and he filed suit, and the Supreme 
Court ruled that the legislature did not have oversight of 
agency regulations so that was the last time we had a 
constitutional resolution that gave the legislature veto power 
over the regulations that the bureaucracy was trying to 
propose. So I think that it is necessary that the Federal 
Government, the Congress, also gets that authority back. Thank 
you very much for being here and listening to us.
    [The statement of Mr. Carpenter may be found at end of 
hearing.]
    Mrs. Cubin. Thank you very much for being here. Questions, 
Mr. Gibbons.
    Mr. Gibbons. Thank you, Madam Chairman. Perhaps one. John 
Carpenter, very early on, since he and I shared a great deal of 
our life together in a State legislature, especially on 
national resources. Do you feel that by the resolution that the 
State of Nevada has, AJR Number 7 here, that there was a 
concern by the State legislature that new bonding regulations 
were not needed; that the laws and provisions of the State with 
regard to the protection of the environment, the water quality, 
air quality, et cetera, were adequately covered by existing 
laws, regulations, and was that the reason why you decided to 
pass this resolution, in light of the changes of the proposed 
changes in 3809?
    Mr. Carpenter. Thank you, Jim. I don't think there is any 
question but that the regulations that Nevada has in place are 
ade-

quate. They are a model for, as we heard here today, for the 
industry, not only in the United States, but throughout the 
world. And we really didn't see any reason to have these 
changes.
    For instance, one of those changes is that you have to have 
an outside consultant come in and look at your reclamation 
projects. That doesn't make any sense at all. That is just like 
saying that the people that you--people you choose for your 
staff, that they ought to have somebody looking over their 
shoulder all the time. It is absurd to do those kinds of things 
and Nevada is a leader. I think that, Jim, you were in the 
legislature with myself when we promulgated the statutes, and 
they are very thorough. They provide for more than adequate 
protection for the environment, and I believe that the 
legislature felt that, you know, we are doing our job and we 
just don't need all that direction from Secretary Babbitt.
    Mr. Gibbons. Thank you. Zane, in your job as the Assistant 
District Attorney, do you feel that your office, as well as the 
State of Nevada, are adequately enforcing the laws with regard 
to environmental issues and reclamation as permitted through 
State requirements.
    Mr. Miles. We enforce the law so that we agree with them or 
not, and often we don't. Eureka County is in the fortunate 
situation, since we do have the largest gold production county 
in the world, we have the resources for local government to do 
its job, and we are certainly capable of doing whatever 
enforcement is necessary. I have no qualms at all about--and 
neither does my boss, about filing a criminal action, if, in 
fact, the circumstances would justify it.
    On the other hand, we have what is called prosecutorial 
discretion, and in its best sense, that means that we can look 
at a situation and determine whether the offense is accidental, 
deliberate or whatever, and that happens throughout the State. 
This Newmont fine, administrative fine, is a perfect example. 
The fine was reduced slightly because Newmont cooperated and 
bent over backward to cooperate with the State Department of 
environmental protection, and consequently, the NDEP never came 
to us for any sort of a criminal prosecution, and none is 
needed. If one were needed, yes, we would do it, we certainly 
would.
    Mr. Gibbons. OK. Mike, let me turn to some of the comments 
that you made with regard to infrastructure, development, and 
support for the mining industry toward the city of Elko and its 
needs, assuming that we understand that Elko has been, for a 
long time, the sort of bedroom community for many of the mine 
workers who work in Eureka County or outside of the area.
    Do you feel that with your position as Mayor, that you will 
experience a less or degraded interest by the mining companies 
in helping with infrastructure needs in future development if 
3809 regulations impose new and more burdensome costs upon the 
mining companies?
    Mr. Franzoia. Oh, yes, I would definitely say that would be 
a detriment to the city. Right now we get a lot of support on 
recreational facilities. Like I said, anything involving new, 
but if there is a downturn on the requirements, obviously it is 
going to be a cost factor for the mines, with less funding 
sources available for those improvements to the city and, yes, 
I think we would suffer greatly in a lot of areas, not only in 
city infrastructures, but support that the mines have with 
other organizations in the community, such as soccer, little 
league and those kinds of functions, which we have a great 
situation here where we have a lot of volunteers that are out 
there and the same token would be--on a nonfinancial basis, 
would be the support of the employees in those same activities 
as volunteering goes.
    A lot of these things that happen in our community make it 
the way it is, and we support, even with the Western Folk Life, 
putting that on, our results of the activities and people 
getting involved, donating their time, aside from donating 
money from the mines, so we have a lot of mining employees that 
participate in these things and it is crucial, and any 
downgrade to the situation we have, being that we are the 
community for the mines and we are impacted greatly more than 
any other city on the corridor, at least in the county, it is a 
detriment to us, no question about it.
    Mr. Gibbons. Let me ask a followup question. Do you notice 
the deterioration in the quality of life, whether it is air 
quality, particulate matter in the air or something because of 
the current operations of mines in and around the Elko 
community?
    Mr. Franzoia. Not at all. The only thing I see that is a 
detriment is increased traffic, but we work on that. As long as 
the community grows either 4 percent a year or 2 percent a 
year, eventually you are going to deal with additional traffic 
problems, but actually I have a tendency to pride myself when I 
travel out of town to tell everybody how good Elko is and how 
blue the skies are and we may have 3 or 4 days a year with fog, 
and it usually breaks up by 10 in the morning. Otherwise, the 
only particulate matter we see coming through is when the winds 
blow up and we get dust all the way from Lovelock that is 
airborne for hundreds and hundreds of miles, so otherwise we 
don't see at all an impact from air quality or standards of 
life in the city.
    Mr. Gibbons. Wasn't, 1994, Elko named one of the most 
desirable communities to live in in the United States?
    Mr. Franzoia. Nineteen ninety four, Elko was considered one 
of the best small towns in America, the quality of life being a 
major focus and also the economic values of the community and 
cultural activities we have in the community, all played a part 
in that recognition.
    Mr. Gibbons. Let me turn my attention over to Royce 
Hackworth, who talked earlier about mining industry and 3809 
regulations. Do you feel, in your position as a county 
commissioner, that the citizens of Nevada, in general, will see 
a marked improvement in the quality of their life, on a county-
wide basis with a major overhaul of the 3809 regulations 
pertaining to mining.
    Mr. Hackworth. I don't see where you would see a major 
improvement, but what we see is currently the rules and the 
regulations that are out there that the mining district has to 
follow seem adequate. There may be some areas they want to look 
at, but at the same time, a major overhaul of it, I don't see 
it as a benefit to the assistance of Elko. What I see is, and 
we are seen in the industry as mining companies today that have 
properties all on pri-

vate land taking 28 months just to get a permit through, to go 
through all the permitting agencies they have to.
    You add the tier of the Federal Government on top of it, 
and it extends that period of time. Some of the permitting goes 
in conjunction, but the issue of it is the major overhaul that 
comes in. It delays the potential of that mine opening, and 
they will look at the economic impacts it has for the 
regulation to become so severe. It will change the economics of 
that mine working.
    But the other thing that really changes a lot and I don't 
think a lot of people recognize this is if those regulations 
become very severe or unduly in their implementation, what it 
does is it affects the future of anybody living in Elko County. 
We have big mines today that could show production going on 
until the year 2030, but at the same time, who is looking for 
the next mine off of their main site that they have right 
today. The grass roots exploration is a thing that even in my 
own business, and Mr. Gustin stated, were indicator species for 
the industry. And I am going to tell you, it is off, this year 
we are at 50 percent of where we were approximately 7 years 
ago. And this is where I get really concerned.
    It is not--the Barrick and Newmont have good land 
positions, are finding things on their own property, but who is 
looking for the next one, and everybody says, oh, you will 
never find a Barrick, Newmont. I think Placer Dome is an 
example of what they have done on that trend and that is real 
close to their own block right at this point in time, but 
somebody looking outside of those trend areas, those are the 
things we are seeing happen, those are the areas I have a 
concern with is because nobody is looking, as they did 10 years 
ago, for the next one.
    Mr. Gibbons. So you see with the new changes, there will be 
a dramatic downturn in the exploration of new mines, based on 
the burden of proposed changes to the 3809 regulations, so that 
exploration will not be out there to the degree where we will 
find major bodies that will be both economically advantageous 
to not only the State of Nevada and the people of Elko, but the 
United States as well.
    Mr. Hackworth. It reduces that potential dramatically is 
what it does.
    Mr. Gibbons. Dr. Lesperance, you talked in some detail 
about some of the occurrences that took place, that you have 
great concern with over the actions of some of the Federal 
agents. Have you any personal knowledge of any of these 
activities, like the destruction or covering of springs, the 
destruction or covering of survey monuments, et cetera, that 
you brought up.
    Mr. Lesperance. Yes, I am somewhat knowledgeable about 
surface water rights. I am somewhat knowledgeable about the 
history of Nevada, having worked with land issues for over 40 
years now. Consequently, I am frequently used as an expert 
witness in land issues. In particular, during the last, you 
know, about the last 5 years, I have been intimately involved 
in two major takings cases in central Nevada against the Forest 
Service and a case here in Elko County in which the county was 
involved in the Forest Service, in a lawsuit, and still is. And 
most of what I referred to come directly out of those 
litigations.
    All three are still in process, although one is closely 
being settled out of court, with basically the cave-in by the 
Forest Service, so one, I think, we are going to do pretty good 
in. But all of those things I mentioned come directly from the 
various litigations. They were also the reason, I feel, it was 
absolutely necessary that this county enact a grand jury and 
they did call for that grand jury in 1994 to look more 
thoroughly into these matters of some of the problems between 
private industry, even county government, State agencies, and 
the Federal Government, and that is why I called for that. As 
you will recall, we had a successful petition, and somewhat 
over a year ago, we did enact a grand jury.
    Mr. Gibbons. Some of your information came directly from 
employees in the Federal Government who were witness to this 
themselves?
    Mr. Lesperance. No, we don't get too much information from 
the Federal Government. They refuse to participate in the grand 
jury proceedings. Obviously, they do participate in the 
lawsuits. Most of my knowledge has come from investigative 
efforts that have resulted in uncovering of the various facts 
and are part of the litigation at this point in time.
    Mr. Gibbons. Perhaps, Doctor, I should also ask you what 
your Ph.D. is in.
    Mr. Lesperance. Various sciences, biochemistry, nutrition 
and ecology.
    Mr. Gibbons. Now, let me ask the final question here and I 
will turn it back over to the Chairman. Have you been 
financially impacted by 3809 regulations since their inception?
    Mr. Lesperance. From a practical standpoint, no, it has had 
very little impact upon us because we are basically out of the 
reclamation business at this point in time. Our firm was, I am 
quite sure, would have been considered in the late 1980's, 
early 1990's, to be basically the reclamation leader. From the 
practical standpoint, we were involved in reclamation projects 
throughout the West, final reclamation, primarily writing of 
reclamation plans and actual final reclamation, which includes 
the seating process, so forth and so on.
    Because of my involvement in these lawsuits and as well as 
my involvement in the grand jury, there has been significant 
pressures brought to bear on our firm and at this point in time 
we are essentially out of the reclamation business. From a 
practical standpoint, therefore, 3809 has not got much impact 
on me because our businesses are nonexistent. I am quite sure 
it would have if we were still at the level of reclamation as 
we were 5 years ago. It would have a significant impact.
    Mr. Gibbons. Thank you.
    Mrs. Cubin. Thank you. I don't know exactly who to ask this 
question of so I think I will start with you, Assemblyman 
Carpenter. You have identified one of the biggest problems that 
we have at the Federal level and you indicated you also have at 
the State level and that is that due to separation of powers, 
we don't have the ability to do very much about regulations 
that are passed by the executive branch. And I have been trying 
to figure out a way that we could do this and I have had 
several ideas and I would like your opinion on this one. What 
would you think about every Fed-

eral law that was passed, and the regulations that accompany 
it, being sunsetted after 10, 15, 20 years. I don't know the 
amount of time, but if we--well, I am not going to try to sell 
you on it. You just give me your impression on it. Would you 
think that would be workable?
    Mr. Carpenter. Well, thank you, Madam Chairman. I would 
like to think it would be workable. I would think, though, that 
the--if you could sunset them every few years, why couldn't you 
review them and if they were not following the intent of 
Congress, then amend that original law to take care of the 
situation that you saw that had placed too much of a burden.
    It would seem to me that, you know, there are a few things 
that make sense, even coming out of Congress and the State 
legislature. Most people don't want to believe that, but 
sometimes they do, that we probably wouldn't want to get rid 
of, but I sure think you ought to be able to review them, and 
if the agencies are going counter to the thoughts of Congress, 
then you should be able to change that statute.
    Mrs. Cubin. Well, I would suggest that sunsetting them 
would have that exact effect, because if the law no longer 
applied, then it would be sunsetted. If it did, but needed 
changes, those adjustments could be made, and if it didn't, 
then you would just reenact the same thing, but that would not 
put us always on the defensive.
    At that point, we would have a chance to have our--you 
know, to be at the table and to update even those laws. I know 
that that is sort of a radical-sounding idea, but I think, 
really, when it comes right down to it, that will work better 
than trying to figure out how we can have oversight or how we 
can really have much affect on regulatory reform.
    As you probably know, the Congress passed a law that said 
that within 60 days after a rule was made final, that they 
could overturn it with a two-thirds vote in each House. Well, 
essentially, especially with the Congress that is as 
politically divided as we are today. That is essentially like 
having no oversight at all. So that is a problem and that 
brings me back to Mr. Miles.
    Mr. Miles, certainly I couldn't agree with you more. You 
talked about the separation of powers. And I am going to make a 
statement which probably comes as a big surprise because I have 
been doing more talking than you have, and then I would like 
you to comment on this.
    I agree with you that the Congress has given up its 
responsibility to the executive branch, and I also agree with 
you that it is appalling that Congress hasn't been able to 
reign in this administration, but I would suggest that this is 
a lawless administration, and that very separation of powers 
that you were talking about, Mr. Babbitt, having said, since 
the Congress won't pass the mining law, I will, and he has done 
that on many things. It is that very separation of powers that 
if we uphold our constitutionally sworn obligation, we can't 
tread on that either.
    Really, the only vehicle the Congress has is asking for a 
special prosecutor from the Attorney General. In this case, we 
have a lawless administration, who is using the Justice 
Department to protect them from public scrutiny, to protect 
them and refusing to, in certain circumstances that are not in 
the purview of this Committee, but refusing to even appoint a 
special prosecutor. What do you recommend we do?
    Mr. Miles. I think the problem, Madam Chairman, goes to the 
very basis of legislation enacted by the Congress. I spend 
about half of my life struggling through the Code of Federal 
Regulations, and when I do that, each time I read a 
bureaucratic rule of regulation, I go back and I try to look at 
the law from which that regulation is supposed to have been 
adopted, and the authority that is cited by the bureaucrats and 
in many, many cases, I can't find in the law.
    What happens is that Congress naturally, because that is 
how the system is supposed to work, enacts legislation in broad 
strokes, and in order to get through the political process in 
Congress, the strokes are made even broader as the various 
sides make their input, and pretty soon you end up with a 
statute which is so broad that it can be interpreted to mean 
almost anything that a bureaucrat wants it to mean and that is 
exactly what is happening to us.
    And I think the only way that we are ever going to rein 
this in and get back to the division of powers that the 
Founders envisioned is for Congress to be more specific in its 
legislation, and perhaps even to the point of Congress, when it 
enacts a law, adding a clause to the effect that this law shall 
not be interpreted as, and listing the things that you might 
fear that the bureaucrats might do that you definitely want to 
say that they shouldn't do.
    Mrs. Cubin. I think that is good advice. And, also, I want 
to support your statement about your research, having looked 
into how they get rules and regulations, based on the statutes 
and you wonder where they ever came from. On the law 
enforcement regulations that the BLM proposed and subsequently 
withdrew, our investigations indicated that not only did they 
base it on really obscure things in the statute, but then they 
based some of those authorities on regulations that they 
themselves had passed.
    In the case of the bonding requirements, this Subcommittee 
asked for documents as to how that--they said that they had 
taken public input and we wanted to know every detail about how 
they actually arrived at that final rule, so we asked for 
documents, and they refused to provide them. The Chairman 
finally had to subpoena them, but in their refusal, basically, 
they said that they would give us the documents they wanted us 
to see so that they would have oversight of what documents we 
would see to have oversight of them. Isn't that them having 
oversight of themselves?
    Mr. Miles. That is pretty circular reasoning, isn't it?
    Mrs. Cubin. Well, I have to move on. Mr. Lesperance, you 
sound like my husband. Sometimes people think he is a little 
bit radical, but I am going to tell you what. I think that you 
are exactly right where it is.
    While I don't condone, and I doubt that you do, people 
taking the law into their own hands, as is happening around the 
Western States with the militias and so on, when we look at 
Waco and Ruby Ridge, we have to see how desperate people are 
and how far the Government has pushed on them to get them to be 
that desperate. What kind of a government has such desperation 
when people only want the rights that they have been 
guaranteed? What reception do you get around when you talk 
about the things that you discussed here today and submitted in 
your written testimony?
    Mr. Lesperance. Madam Chairman, I would like to call your 
attention to my statement and the attached lawsuits. There are 
two attached lawsuits. The first is the Truckee-Carson lawsuit 
and the second, which is about one-third of the way through the 
total document, is called United States District Court for the 
District of Nevada, United States of America, and Walker River 
Paiute Tribe versus Walker River Irrigation District, and if 
you will look on page 2 of that document, and for the next 
eight pages, you will see a list of names. I hope you see that.
    Mrs. Cubin. I noticed that last night.
    Mr. Lesperance. There are 1,200 plus names in there and the 
list is not complete. I happen to have spent a number of years 
in the area and I know many of the people in both California 
and Nevada, and I have talked with some of these people very 
recently. These are honest people. These are people that have 
been born on these ranches, third, fourth, fifth and even 
sixth-generation people, and they are not going to leave real 
easy. But when you take the water away from those people, if 
they lose this suit, which is inconceivable to me, but if you 
do take the water away from those people, I cannot predict what 
they will do.
    I know them, I know how they live, I know how they got to 
where they are at today, and they are not going to go down real 
easy. But it is interesting, I will throw another little 
wrinkle in here so you have a better understanding of how 
devious the bureaucracy is. I do not believe that the Justice 
Department and/or the Department of Interior really believes 
they can win this lawsuit, this fight, with the effort they are 
putting into it.
    Coincidentally, last week, the Bureau of Land Management 
started a program in the Eureka Walker River offering to buy 
everybody's water rights. Now, that is after they have been 
subjected to this lawsuit, have already had to come up with 
their legal counsel, which is costing millions of dollars, and 
now the BLM is saying, well, you know, we will buy your water 
rights. That is a corrupt government, that is a corrupt 
bureaucracy and that is what has to be straightened out if this 
country is going to survive.
    Mrs. Cubin. It has been reported that Bruce Babbitt has 
stated, and I don't recall the convention, but that all of the 
water within the borders of the United States of America should 
belong to the Government of the United States of America.
    Mr. Lesperance. He has made that statement. We here in 
Nevada still operate under the State and perhaps we are 
mistaken, feeling we still own the water.
    Mrs. Cubin. We do.
    Mr. Lesperance. I am quite sure constitutionally, that is 
correct. But the other factor that you really need to 
understand is even though the Department of Interior may 
initiate a lawsuit, what happens next, the Department of 
Justice steps in. I have had the privilege of looking at eight 
Federal lawyers at one time. How possibly can anybody in this 
State survive an onslaught of that nature? We don't have the 
money. Nobody has that kind of money. The Department of Justice 
has as much money as they want.
    Mrs. Cubin. And as much time as you can pay them while you 
are paying your own attorney at the same time.
    Mr. Lesperance. That is correct. It becomes very, very 
frustrating.
    Mrs. Cubin. Back to Assemblyman Carpenter. You talked about 
the constitutional resolution that was passed, I think you said 
it was passed by the legislature. What is the procedure on 
that? In Wyoming it has to be passed by two-thirds of the House 
and Senate and then in the next general election it has to be 
put on the ballot. What is the procedure in Nevada and where is 
that resolution?
    Mr. Carpenter. Thank you, Madam Chairman. The procedure in 
Nevada is it passes the legislature twice. It does not have to 
be two-thirds majority, just a simple majority passes the 
legislature twice and then it is put on the ballot, and the 
people vote on it. And as far as this constitutional amendment 
that I was talking about that gives the legislature the 
oversight or veto power over agency rulemaking, it did pass the 
people, was passed by the people in the last general election, 
and so now the State legislature does have that oversight 
power.
    Mrs. Cubin. And more States should do exactly what Nevada 
has done, I think. After the resolution you passed about the 
bonding regulations, did you hear from the Secretary or did you 
hear from any representatives of the Department of Interior?
    Mr. Carpenter. The only thing we heard was they were not 
going to change it, and they confided in our committee chairman 
that they were not going to change these regulations, and so 
that was the extent of their response, that, you know, so what, 
try to change them when you really don't have the authority to 
do it.
    Mrs. Cubin. In your face.
    Mr. Carpenter. That is right. And I think, though, that 
what these hearings bring out, in my mind, is that a number of 
years ago, we didn't think that the government was our enemy. 
We thought that the government was going to do right for us, 
that they were going to protect our properties and our right to 
make a living; that they really weren't our enemies. But we 
have seen, through the last number of years that there are 
other people out there that want to take our way of life away 
from us, for what reason, I don't know. But I think that we are 
finally, hopefully getting the message to the politicians who 
have it in their power to change these things, and I think with 
yourself and Congressman Gibbons and other people that we are 
finally making some headway and we are going to see, I hope in 
the next 15 years, a big rollback of what has happened in the 
last number of years.
    Mrs. Cubin. I can tell you firsthand that I have seen that 
in the Congress, and I know that it is hard, when the only news 
from Washington you get is the Eastern liberal media. A lot of 
times people out here in the country don't even know what we 
are talking about and the debates we are having and there are 
more than just Representative Gibbons and I that care about 
this and care about it very, very deeply and it is all of our 
obligation. We can't stop and we can't shut up. We have to keep 
talking about it and bringing this out into the light of day so 
that everyone can see it because I am going to tell you, people 
in the East do not believe it. They don't believe it when we 
tell them these things happen. We have to prove it to them over 
and over. But that is why we are here and that is what we need 
to do.
    You were right when you said, I think you were the one that 
said that even cutting the money at the Federal level doesn't 
work, and that is right. It doesn't work because we did that. 
We did that in the 104th Congress and you know what happened, 
we can't--well, we appropriated money to the BLM, Park Service, 
Forest Service, on and on and on, and where we said that they 
should spend money, they didn't. They spent it where they 
wanted to spend it. They moved it to programs that we didn't 
want to fund. Again, we are back to this lawless 
administration, when you have an administration that doesn't 
care about the law, and I am convinced the Clinton 
Administration, through and through, doesn't care about the 
law. Then they just spend the money where they want and you 
know what they did, they took money away from the services.
    I am not certain about this, but like in permitting, and in 
areas that directly hurt our constituency, they even targeted 
at us, but nonetheless, we have to keep up the good fight. I 
had one last thing.
    Mayor, this isn't a question, but I wanted to congratulate 
you on the activities that are going on in Elko. It was an all-
American city or one of the best small towns to live in.
    Mr. Franzoia. It was the best small town in America. It was 
based on a population criteria, so we have outgrown that now. I 
think it was under 17,000 or 15,000, population.
    Mrs. Cubin. Wyoming and Nevada have an awful lot in common. 
We have a city, Lander, Wyoming, that has been awarded one of 
the most livable cities in the country as well, and Assemblyman 
Carpenter said, which shocked me, Nevada is the most urban 
State in the Union. Wyoming is the most rural. We don't have 
one single metropolitan area in Wyoming, I am proud to say.
    Back to the mayor, your cowboy poetry week is my favorite 
thing. I was not able to come for that, but Baxter Black is one 
of my favorite guys and if you all had time I could recite some 
cowboy poetry for you, but we have to check out of the hotel, 
so congratulations on what you do. Thank you for your 
testimony.
    We are going to take a 10-minute break. We need to check 
out of our rooms and get packed up so we can leave so you can 
all go have a cup of coffee or whatever and we will reconvene 
in, let's make it 15 minutes.
    [Recess.]
    Mrs. Cubin. The Subcommittee will please come to order. I 
would like to ask that the fourth and final panel come forward. 
Mr. Leo Drozdoff, Jack Blackwell and Jean Rivers-Council. Mr. 
Drozdoff--is that it?
    Mr. Drozdoff. Perfect.
    Mrs. Cubin. I am getting better--is a Bureau Chief of 
Mining, Regulation and Reclamation for the Nevada Division of 
Environmental Protection. And we will ask him to lead off with 
the testimony.

 STATEMENT OF LEO DROZDOFF, BUREAU CHIEF, MINING REGULATION & 
   RECLAMATION, NEVADA DIVISION OF ENVIRONMENTAL PROTECTION, 
    NEVADA DEPARTMENT OF CONSERVATION AND NATURAL RESOURCES

    Mr. Drozdoff. OK. Thank you very much. We have provided 
written testimony and what I would like to do in the interest 
of time, and to also be able to talk about some things that may 
have been raised in previous testimony, is just briefly 
summarize the written remarks, and go on from there.
    One point I did want to make at the outset is the State of 
Nevada, Division of Environmental Protection, is a fully 
delegated State; that is, we have delegation agreements from 
the EPA on clean water, clean air, across the board. And 
others, we do a very good job. We have a very good relationship 
with EPA in administering those programs. We also administer 
programs pursuant to State law, as Representative Gibbons is 
aware and as Assemblyman Carpenter is aware.
    We have very comprehensive State laws in the areas of 
groundwater protection, and in reclamation, that are not--do 
not replicate any Federal activity, but are purely State laws, 
and those laws then were used by agencies to craft what we 
consider to be very well-thought-out regulations, and the 
comment has been made a couple times today that Nevada is the 
leader in groundwater protection and reclamation and we are 
proud of that, as being part of that.
    I also wanted to talk a little bit about our existing 
relationship with some of the Federal land management agencies 
that I am sitting here with today. Because of all of the 
negative activities that perhaps have gone on recently with the 
Bureau of Land Management, that sort of casts a dark light on 
what has been and still is what I consider to be a good 
relationship with the Federal land management agencies in the 
State of Nevada, both the State office and the district offices 
in Nevada, as well as the U.S. Forest Service.
    We have lots of things that we work on, it is not a perfect 
system. You have heard some of the testimony today that there 
are areas that need to be improved, and we continue to work on 
that, but the fact is, the programs are in place, the 
communication is in place to get that done. We have good 
memorandums of agreement with both the BLM and with the Forest 
Service. We continually work to improve in those areas. We have 
worked on various initiatives with the BLM and the Forest 
Service in many areas, including a revegetation issue that, 
again, is timely.
    We don't always agree, but we do communicate and I think 
the final product, when it is put together, is a good product. 
We work well with environmental groups and with industry, and 
just to show the States level of interest in that regard, we, 
we, being the State, actually will fund a BLM employee to act 
as a liaison. This is money that is paid to the State, which we 
then contract with the BLM, so that we can further improve 
communications in the areas of long-range issues as well as 
day-to-day activities as they come up, and, again, that is a 
concept that has been embraced by environmental groups and by 
industry.
    And while all those are good things, I did want to quickly 
touch on two areas we do have some concerns with. You have 
heard lots of new testimony on the bonding rule and you would 
agree with a fair amount of that. We think the manner in which 
the bonding rule was passed was inappropriate and we believe 
some of the provisions contained therein were not well-
conceived. Now, it must be said that the State of Nevada 
supports bonding on all public lands, but what we don't agree 
with is some of the areas, such as third-party engineering 
reviews and this water quality criteria.
    Again, Nevada is a fully delegated State and has its own 
State programs for groundwater protection and we don't believe 
that is an appropriate area and we don't believe it was a well-
conceived rule. And last, I wanted to touch on the overall 3809 
regulation review. We have taken that matter very seriously. 
You have touched on that.
    Our Governor has written a letter to the BLM, being quite 
candid on Nevada's concerns about that 3809 process. That is 
included in my testimony, and I think it speaks well to the 
issues that the NDEP and the Department of Minerals, as well as 
the administrative branch of government in Nevada believes. Now 
with that, I guess my time is up and I will close. I did want 
to touch on some things that were raised in testimony. If you 
would like me to wait, I can do that or I can briefly touch on 
some of them.
    Mrs. Cubin. Go ahead.
    Mr. Drozdoff. There was a great deal of talk, some talk, I 
suppose, on water quantity, and now we are the water quality 
folks at NDEP. The State engineer and the Division of Water 
Resources are the water quantity folks. I did have the 
opportunity to briefly speak with the State engineer, who was 
not able to attend, but did want me to mention a couple issues.
    He wanted me to note in the Humboldt River Basin, 90 
percent of the water discharged is either put back into the 
ground, beneficially used in the basin or substituted for other 
uses in the basins. One such notable example would be in the 
case of Lone Tree Mine; a pipeline was built to supply water to 
a power company and that enabled water, then, not to be pumped 
to supply the power company. He also wanted me to offer to 
provide his testimony, if you felt it was appropriate. He can 
do that, or if there were specific questions we can relate to 
him, I would be glad to do that for him.
    I wanted to touch briefly, there was some mention about 
Jerritt Canyon and a Clean Water Act issue and I must say that 
I am not aware of a Clean Water Act issue at Jerritt Canyon. I 
will say this. We do periodically routinely meet with all 
members that--all members of the community. We also meet with 
various environmental groups routinely, and that issue has--a 
lot of issues have been raised, but that issue in terms of a 
Clean Water Act violation have not been raised yet. That is 
something that we will look into.
    We do have some groundwater issues out at Jerritt Canyon 
that again we are managing. We have a remediation activity, and 
that is, again, what we consider to be a groundwater issue, and 
we are dealing with it. And I would like to just stress this 
point about Nevada's regulations. The good State regulations, 
coupled with good enforcement of Federal regulations has 
really, in our opinion, resulted in some of the tightest Clean 
Water Act regulations that exist. We incorporate all Federal 
water quality standards, where appropriate, and we incorporate 
State standards for specific streams when they are necessary, 
and our permits are reflective of that, our permits--our 
operating permits that we issue can contain these same 
limitations, so I think they are very tight, but we would like 
to believe they are well-run, well-administered and we take 
pride in that. So with that, I will close.
    [The statement of Mr. Drozdoff may be found at end of 
hearing.]
    Mrs. Cubin. Thank you very much. Next, I will call on Jack 
Blackwell, the Deputy Regional Forester, Intermountain Region, 
U.S. Forest Service. Mr. Blackwell.

    STATEMENT OF JACK BLACKWELL, DEPUTY REGIONAL FORESTER, 
 INTERMOUNTAIN REGION, U.S. FOREST SERVICE, U.S. DEPARTMENT OF 
                          AGRICULTURE

    Mr. Blackwell. Madam Chairman, Congressman Gibbons, my name 
is Jack Blackwell. I am Deputy Regional Forester for the 
Intermountain Region of the Forest Service. I am accompanied by 
Larry Gadt, the Forest Service National Director of Minerals. A 
summary of our statement is as follows.
    For over 125 years, the mining industry has explored and 
developed locatable minerals underlying Federal lands, under 
provisions of the 1872 mining law. That mining law, and 
legislation since 1872, make public land available for mineral 
development. Under Forest Service regulations, operators are 
required to reclaim land to prevent or control damage to the 
environment so that existing problems with abandoned mines are 
not compounded. Before operations commenced, the Forest 
Service, in conjunction with operators, must establish and 
document in the plan of operations the reclamation standards 
for each site-specific activity.
    When we receive a mining proposal, it is analyzed to 
determine if a plan of operations is necessary. If one is 
necessary, the plan is reviewed to determine if it contains the 
required information and what level of environmental analysis 
is needed. Within 30 days of receipt of a plan of operations, 
the district ranger informs the operator of the status of the 
plan. Once the plan is completed and a bond has been submitted 
for reclamation, the plan is approved. The Forest Service 
strives to process mining operation applications quickly, to 
accommodate the company schedule. For example, here in Elko 
County, the Jerritt Canyon mine expansion and the Dash project 
were permitted in less than 16 months.
    Field units with the heaviest hardrock mining workloads 
have also been encouraging a regulatory review and update for a 
number of other issues. We are examining possible modification 
of the surface use regulations and have included this effort in 
the fiscal 1997 plan of work and that will be extended into 
fiscal 1998. The Forest Service is examining changes to address 
shortcomings in the areas of occupancy, notices of intent, 
plans of operation, reclamation, and bonding. This effort is 
being coordinated with the BLM, review of its surface 
management regulations. The joint agency goal is to have 
regulations as consistent as possible.
    In managing the surface resource effects of operations, 
much work remains to remediate the effects of historical 
operations which have been abandoned. The Forest Service is 
working with other agencies to identify and correct these 
problems. That completes the summary of our statement and we 
would be glad to answer any questions.
    [The statement of Mr. Blackwell may be found at end of 
hearing.]
    Mrs. Cubin. Thank you very much. Next, we will call on Jean 
Rivers-Council, Associate State Director of the Nevada State 
Office of the Bureau of Land Management.

  STATEMENT OF JEAN RIVERS-COUNCIL, ASSOCIATE STATE DIRECTOR, 
NEVADA STATE OFFICE, BUREAU OF LAND MANAGEMENT, U.S. DEPARTMENT 
                        OF THE INTERIOR

    Ms. Rivers-Council. Madam Chairwoman, Congressman Gibbons, 
I appreciate the opportunity to appear here today to discuss 
the status of permitting hardrock mining operations on the 
public lands managed by the Bureau of Land Management. The BLM 
regulates these operations pursuant to the general mining laws 
of the United States and the Federal Land Policy and Management 
Act. I provided the Subcommittee with copies of my full 
statement.
    In the interest of time, I will deliver a summary 
statement. It is important to note that minerals production is 
only one of many resource issues for the BLM in Nevada. About 
67 percent of the total land in Nevada is managed by the BLM. 
In addition, BLM Nevada has recorded over 756,000 mining 
claims, of which 135,000 are still active. More than half of 
all new claims filed annually are recorded in Nevada. About 67 
percent of gold production in the Nation is from Nevada. That 
amounts to over 7 million ounces per year.
    To meet the needs of industry, BLM and other regulatory 
agencies have worked intensively to reduce the time required to 
process notices and plans of operations. In the 1980's, BLM 
recognized the pace of processing these plans was unacceptable. 
We addressed our process and improved it. In the last 2 years, 
the BLM has developed more consistent and predictable technical 
guidelines. Even with the more complex plans of operation 
today, we have decreased review time. The basic Federal 
regulations under which we operate are found in 43 CFR 3800. 
One provision of these regulations relates to smaller 
exploration and mining operations on public lands. These are 
operations with cumulative surface disturbance of 5 acres or 
less. These operators are required to notify the BLM at least 
15 calendar days prior to commencing operations. Operators that 
exceed 5 acres on BLM public land must have a plan of operation 
analyzed and approved by the BLM.
    When the BLM processes exploration and mine plans and 
notices of operations, it must follow all of the numerous 
Federal laws. In recent years, Nevada production has escalated 
from about a half million ounces of gold per year in 1981 to 
over 7 million ounces in 1997. New production activity has 
shifted away from mining and shallow pits. The ores produced 
today are more expensive and challenging to process than those 
mined in the past. In many of the valleys of Nevada, the ore 
lies below the water table. To keep today's mines dry, water 
must be pumped at rates exceeding 30 to 50 gallons per minute.
    This agency works hard to be a good neighbor. One way we do 
that is to work with the State and the Mineral Exploration and 
Mine Permitting Program. The BLM has reached major agree-

ments with the State of Nevada, including two with the Nevada 
Department of Conservation and Natural Resources. The first 
involved development of a program with the Department's 
Division of Environmental Protection for review of exploration 
and mining plans, reclamation bonding, inspections and 
reclamation requirements. Today, there is a joint review 
process in Nevada.
    Under the second agreement, the BLM and the Nevada Division 
of Wildlife are cooperating in developing wildlife protection 
requirements, especially for tailings ponds and other mine 
ponds which contain chemicals used in mining operations. The 
BLM also works closely with the Nevada Division of Minerals 
regarding remediation of abandoned mine hazards.
    Mining has occurred in Nevada for more than 140 years. 
During that time, many prospectors and miners abandoned sites 
without cleaning them up. The State is helping us with this 
problem. Last year more than 100 hazardous mine sites were 
identified and secured by the State. The Division of Minerals 
works with the mineral industry and the counties to make lands 
managed by the BLM safe once more.
    The BLM does and will continue to, practice and use the 
best science to address any new emerging issues. This can be 
achieved only through cooperation with the State and with 
industry. The mutual goal is to provide more consistency and 
better predictability in the process. BLM's hardrock mining 
surface regulations date back to 1981.
    Recent updates have included use and occupancy rules and 
acid mine drainage policy and hardrock mining regulations. 
Secretary Babbitt in January of this year directed the BLM to 
form a 3809 task force which would address shortcomings in the 
current surface regulations, incorporate BLM policies which 
were developed to supplement existing regulations and meet 
BLM's strategic plan of incorporating standards.
    The task force has embarked on a scheduled 2-year effort to 
update the 3809 regulations. Issues to be addressed include 
eliminating or modifying the 5-acre threshold for notices, 
revising the definition of unnecessary and undue degradation, 
expanding environmental and reclamation requirements and 
clarifying casual use. Scoping meetings were held this spring 
throughout the country. We have made public our summaries of 
the comments at the scoping meetings.
    I will conclude here. I believe I mentioned earlier I have 
submitted my full written statement for the record and I am 
prepared to answer any questions that you might have. I will 
try not to exceed my 5 minutes since I have a red light.
    [The statement of Ms. Rivers-Council may be found at end of 
hearing.]
    Mrs. Cubin. Thank you very much. I appreciate that. Now, 
the Committee would like to welcome Larry Gadt. I had no idea 
that you would be here. I am delighted that you are. I don't 
want to put you on the spot, but you have heard bashing, 
including from me, not at you, but at the system and how it 
works with Washington making a one-size-fits-all policy. If you 
would like to just say anything to the Committee for the 
record, I would certainly love to have you do that.

  STATEMENT OF LARRY O. GADT, DIRECTOR, MINERALS AND GEOLOGY 
                MANAGEMENT, U.S. FOREST SERVICE

    Mr. Gadt. Thank you, Madam Chairman.
    Mrs. Cubin. And bashing is way too strong.
    Mr. Gadt. That's all right. I guess that I view the--not as 
much bashing, I guess, I didn't feel this morning. I heard a 
lot of good comments and I really appreciate that. In my visits 
to the field, I ask very simple questions of folks, be they 
local industry or our own employees of how are we doing and how 
are we working together and how are we getting our job done. 
With few exceptions, and there are very few, I hear nothing but 
glowing comments about our ability to work together with the 
industry to do the environmental job we are responsible for and 
at the same time facilitate removal of these resources.
    To be perfectly honest with you, if I knew what the size 
was, if I had all that wisdom, I would not have a clue to know 
how to go about doing that and I don't know if I am answering 
your question, but I don't know what the right size is. In our 
case, we got input from our field to ask what different sizes 
they feel they need and we are still working with that, so I am 
not smart enough or wise enough in my professional background 
to determine that and that is the best I can do on answering 
that one.
    Mrs. Cubin. We are certainly glad that you came and it 
always helps to have people get outside the beltway and hear 
what happens out here.
    Mr. Gadt. Thank you.
    Mrs. Cubin. Representative Gibbons, would you like to begin 
questioning?
    Mr. Gibbons. Thank you. I would be happy to. Let me start 
with Mr. Blackwell, if I may. You mentioned in your testimony, 
Mr. Blackwell, that there is a historical trend over the years, 
up to 1981 regulations that are now in effect, that many 
abandoned mines have gone unreclaimed, or pose a serious health 
or safety hazard to the public. Who bears the responsibility 
today for the reclamation of those mined areas and those mines, 
as you foresee that?
    Mr. Blackwell. Well, I am not an expert in the area and I 
will give a brief answer and perhaps Larry can elaborate, but 
determination of responsible parties on these abandoned mines 
is tricky and time-consuming and onerous business, and using 
the process, as I understand it, we have come up with who we 
believe are the responsible parties, and we use Superfund 
authorities and funding to try to fix these up. As you well 
know, it is an enormous problem all over the West, the 
abandoned mines and different environmental problems with them.
    Mr. Gibbons. When there is no direct responsibility to a 
previous mine occupant or previous mine operator, has the 
Superfund been able and adequate to address the issues that 
face you when you go to reclaim or improve these areas? Have 
the Superfund requirements permitted you to do that, or do we 
need, in Congress, to enact legislation that would allow the 
Superfund to more easily address these issues?
    Mr. Gadt. I will try to answer some of that. On the 
national forestland, we have not completed inventory yet but we 
have--at present, we anticipate around 38,000 abandoned mine 
sites. A small percent of them would actually qualify for any 
funding from CERCLA, RCRA any other source of Federal funds. 
Also, a very small percent of them--actually, if we could 
identify the potential responsible parties, a very small 
percent of those actually fall in the category. So we have a 
very large percent of other areas that we need to have funding 
available and we are pursuing funding available to correct 
those.
    Our 1998 budget that you all just enacted or are acting on 
includes funding to do some of that. I would like to add, 
though, the industry has been very cooperative with us in 
helping us to clean up these sites. Sometimes in existing 
operations, but, also, going into watersheds where we are 
trying to improve the overall quality of the drainage.
    The Western Governors Association, we have a cooperative 
arrangement with them, so with the Western Governors, the 
companies, the source of the funds federally and so forth, we 
have and are pursuing an effort to correct some of these 
problems.
    Mr. Gibbons. Would you suggest, since you said the 
Superfund authority only applied to a very small percentage of 
these operations because of the current language in the law, 
that we should address the Superfund authority language to 
broaden its coverage so that that money, that vast sum of money 
that sits in that fund can be applied to these situations, 
would you recommend that?
    Mr. Gadt. You know, Congressman, I am not an authority on 
Superfund wording and language, and I would rather not comment 
on that right now and maybe do some staff work and get back to 
you if that would be all right.
    Mr. Gibbons. I would like to hear personally from you on 
that issue.
    Mr. Gadt. I will do that. Thank you.
    [The information referred to may be found at end of 
hearing.]
    Mr. Gibbons. Ms. Rivers-Council, thank you, and I know you 
and I have chatted in the past and had an excellent working 
relationship and I know we will continue to do so. Let me say 
that, first of all, in addressing your comments about the need 
to revise the 3809 regulations, do you have a view that there 
is a concern within the agency about the increase in delays of 
permitting due to the changes that are going to be promoted in 
the changes to the 3809 regulations?
    Ms. Rivers-Council. Congressman, I am not certain that I 
could fully respond to whether the changes in the regulations 
will necessarily delay the permitting process. When I reflect 
back on the 1981 implementation of the surface mining 
regulations, we did make a commitment way back then to do a 
review. We have found, over the last dozen plus years, that the 
mining itself has become a little bit more complex. We are 
going deeper into the Earth, the mines are becoming bigger, but 
our partnerships are increasing. I can attest that over the 
last couple of years, the time our process to complete 
environmental impact statements takes, as an example, has 
certainly gone down.
    Mr. Gibbons. So you don't see any changes in the delays 
that would be required for these mining companies in terms of 
their permitting from any proposed changes that would be out 
there.
    Ms. Rivers-Council. I don't see that delays would 
necessarily occur.
    Mr. Gibbons. You mentioned shortcomings in the current 3809 
regulations. Could you explain what you mean by shortcomings?
    Ms. Rivers-Council. An example of the shortcomings of the 
3809 regulations, raised both within BLM and enternally by our 
customers, is the 5-acre threshold for requiring a plan of 
operation rather than a notice.
    Mr. Gibbons. So what you are saying to us is in these 
proposed rule changes, you expect to see an increase in the 
acreage for noticed operations, from 5 acres, say, to 20 or 25, 
something, you know, some increase.
    Ms. Rivers-Council. There is certainly some consideration 
being given to eliminate that rule altogether. It would 
certainly cut out the need for miners to notice the Bureau of 
Land Management when they are going to disturb five acres or 
less.
    Mr. Gibbons. We were just chatting about the fact if you 
eliminated that, then everybody would be under the planned 
operations then and certainly be required to have a bonding 
requirement under the planned operation, if that is your 
intent.
    Ms. Rivers-Council. That is a potential, certainly. But I 
believe, until we have been able to review all of the comments 
that came out of the scoping sessions, and we had over 1,800 
comments, I don't believe we are prepared to say summarily that 
that is going to be the case.
    Mr. Gibbons. With the new 3809 regulations that you have 
got with regard to bonding, there is a requirement in there for 
the review process of the reclamation to include water, water 
quality standards being met. Now, let me ask this question. You 
would agree that that is in there?
    Ms. Rivers-Council. I would agree that there are 
references, very definitely.
    Mr. Gibbons. And the standards have to be met and 
determined before the bond can be released.
    Ms. Rivers-Council. Well, we are not trying to implement 
the standards. That comes under the purview of the State.
    Mr. Gibbons. I am not asking you to regulate the standard, 
just a determination has to be made that the standards are met 
before the bonding can be released; is that not true?
    Ms. Rivers-Council. Congressman, I would hesitate to give 
you a specific answer on that.
    Mr. Gibbons. Your opinion.
    Ms. Rivers-Council. I don't have an opinion until the 
scoping comments have been fully analyzed.
    Mr. Gibbons. This is on the current bonding requirements, 
not future. This is current bonding requirements that the BLM 
has already made a final ruling and put into implementation in 
March 1997, requiring water standards, water quality to be met 
before the bonding can be released. My question would be, if 
Dr. Myers' concerns about 30 years down the road problems will 
arise, at what point can a bonding permittee expect to see his 
bond released if he has paid into this sum his bond, satisfied 
and released, at what point do you expect a bondholder, a 
permittee, excuse me, to expect this to impact his operation?
    Ms. Rivers-Council. If I understand your question, you were 
asking at what point could the permittee expect to have their 
bond returned after the mine has closed.
    Mr. Gibbons. That is correct.
    Ms. Rivers-Council. Or the operation itself has. The 
anticipation would certainly be that upon full satisfaction 
among all the partners, the miner, the State, the Federal 
Government, BLM obviously included, that once that occurs, we 
would be able to return that bond money. Now, that can easily 
translate into a year to 2 to 3 years and currently it is up to 
about 3 years after the operation closes down.
    Mr. Gibbons. If an outside agency challenged the release of 
the bond, for example, the Sierra Club or something to the BLM 
and forced a complaint to be heard, saying 30 years down the 
road this could cause some irreparable damage, that we should 
not release that bond, would your agency then hold the bond 
until the 30-year period?
    Ms. Rivers-Council. I believe I would certainly have to go 
back and rely on my advisors in the office, my technical 
experts, on the exact definitions of how we would review that.
    Mr. Gibbons. Would you go do that for us and give us some 
feedback?
--------
    The BLM bonding regulations provide that 60 percent of a 
bond can be released if reclamation requirements are met for 
backfilling, regrading and stabilization of leach pads, heaps 
and tailings. The remaining 40 percent of a bond cannot be 
released until the disturbed area has been revegetated to 
establish a diverse, effective and permanent cover and until 
any effluent discharged from the area has met applicable 
effluent limitations and water quality standards for not less 
than 1 full year, without violations and without the necessity 
for additional treatment.
    In Nevada, BLM is currently coordinating with the State of 
Nevada Division of Environmental Protection and with 
stakeholders to develop guidance to the industry regarding 
release criteria of the remaining 40 percent of the bond. 
Although the discussions are not complete, it appears that 
based on current experience, release of the bond will occur 
within reasonable timeframes, in full coordination with the 
State regulatory agencies.

    Ms. Rivers-Council. Absolutely. I would be happy to respond 
to that.
    Mr. Gibbons. Thank you. Thank you very much. Mr. Drozdoff, 
I hope I pronounced your name correctly and I apologize. Would 
the State of Nevada be able to achieve, in your opinion, its 
goals, environmental goals, with the industry, and the mining 
industry in particular, even if the 3809 regulations were not 
in effect?
    In other words, if the State of Nevada in its environmental 
protection requirements, today, had the force and effect that 
they do, would they be able to achieve the same environmental 
goals without 3809 in existence?
    Mr. Drozdoff. I would probably say, no. Just because when 
the regulation--for example, with our reclamation regulations, 
I think the State legislature takes very seriously the notion 
of not duplicating activities, and if there was an activity 
that had already been prescribed in Federal regulations----
    Mr. Gibbons. Can you name one for us?
    Mr. Drozdoff. Well, one would be perhaps the 5-acre issue 
on public lands, because of the staffing needs and because, 
again, the reason for nonduplicating of efforts, the State 
legislature did not want to have DEP do the same thing that the 
BLM was doing, so----
    Mr. Gibbons. On a noticed operation.
    Mr. Drozdoff. Exactly, right, so that would be an area.
    Mr. Gibbons. But noticed operations don't have the same 
impact nor the same usage or detriment as a planned operation 
would have.
    Mr. Drozdoff. Clearly, absolutely.
    Mr. Gibbons. Under a planned operation, let's assume the 
BLM removes the 5-acre requirement which would include you to 
have the responsibility for every operation. According to the 
BLM, that may be what they want to do is eliminate the 5-acre 
distinction, putting everybody in a planned operation. Would 
you say, in your opinion, that the State of Nevada has adequate 
laws to cover environmental protection and reclamation for any 
operation?
    Mr. Drozdoff. I suppose we feel very comfortable with our 
regulations that they exist and I am not an expert in 3809, so 
I am at a little bit of a disadvantage there because I don't 
know some of the nuances that may exist. Certainly, from our 
standpoint, the regulations that we have, both cross-medium, 
whether it is air, water, RCRA, we take pride in, we enforce, 
and we do a good job in regulating those activities.
    Mr. Gibbons. I would agree with you as well, so, thank you, 
Madam Chairman.
    Mrs. Cubin. Thank you. I think I will start with Mr. 
Blackwell. Will the Forest Service begin proposing new mining 
regulations after the BLM finishes with their process?
    Mr. Gadt. We are in the process now and we actually started 
with last November, soliciting input from our field units on 
what they felt were the needs, if any, regarding 228(a) 
regulations. Ours have been in place since 1974 and so we have 
received some input from our field units and we are in the 
process of looking at that now to determine what, if any, 
changes need to be made in order to address the field concerns. 
Did that answer your question?
    Mrs. Cubin. Yes, it did. One little caveat here then. I 
certainly hope, and I know the Forest Service would never do 
this, but the BLM did, in taking 5\1/2\-year old input off the 
shelf and then implementing that as a proposed rule, so I 
certainly hope the public will be taken into consideration 
before the rules are put out.
    Mr. Gadt. Our input today has been post January 1997. 
Actually, I think March and April, with I think recent 
validations as recently as like in August, I believe.
    Mrs. Cubin. Is that in-house input.
    Mr. Gadt. Yes, it is all in-house input at this point.
    Mrs. Cubin. But you will go out and do the appropriate 
public--the 60-day comment on the rules and so on.
    Mr. Gadt. Yes, right.
    Mrs. Cubin. I want to make sure you do plan to take public 
input before hand.
    Mr. Gadt. Yes.
    Mrs. Cubin. Great. That is all I need to know. I would like 
to--let me make sure. I have all these notes, I want to make 
sure I don't have anymore questions of Mr. Blackwell. I don't 
see any right here. Mr. Drozdoff, would you agree with the 
statement that there is no problem implementing the new bonding 
rule?
    Mr. Drozdoff. No, I would not agree with that statement. 
They have clearly impacted operations and issues in Nevada, the 
Division of Minerals needed to--or felt it was very appropriate 
to actually get a new State law in place to expand the scope of 
some of its statutes to better accommodate issues that stem 
from the 3809 bonding rule.
    Again, we have committed to work with the State office on 
some of the activities, or some of the needs now that stem from 
3809, but they have clearly created more work for at least two 
State agencies, and so, no.
    Mrs. Cubin. I am not going to ask Ms. Rivers-Council that 
question because on June 19, 1997, Solicitor John Leshy 
testified to the Committee, quote, ``The BLM tells me there is 
no problem implementing the new bonding rule,'' and I don't 
want to get you crosswise with anyone, but I just sort of 
sensed at the time maybe that was an overstatement.
    In earlier testimony, Mr. Drozdoff, someone suggested, and 
I apologize, I can't remember who it was, that the State could 
enforce the Federal law in environment. Would you agree with 
that?
    Mr. Drozdoff. Only insofar as that Federal law has been 
delegated to the State.
    Mrs. Cubin. Assuming it were.
    Mr. Drozdoff. If we have a delegated program, for example, 
under the Clean Water Act and the MPDS program and there was a 
violation of a water quality standard from either a permitted 
or an unpermitted facility, the State would clearly have the 
ability, if it felt necessary, to take enforcement action on 
that.
    Mrs. Cubin. And you feel confident the State could 
recognize your inspection, and then could have the wherewithal 
under enforcement to maintain the high quality of the 
environment.
    Mr. Drozdoff. I do. You know, I think that the State, as I 
stated earlier, the State does take pride and it goes beyond 
DEP at this point. I think the State, whether it is the State 
legislatures or other State agencies, I think the State does 
take pride in what it does in the State and feels comfortable 
in its approach.
    Mrs. Cubin. Just very--you don't have to be specific about 
this, but, generally, are the Nevada State environmental laws 
as stringent as Federal laws?
    Mr. Drozdoff. I would say that they are at least as 
stringent. As I said, when it comes to federally delegated 
laws, we implement specific requirements of those laws and 
regulations into our programs, cross-media, and as we alluded 
to earlier, there are other areas that are not even covered 
under Federal law, such as groundwater protection and some of 
the specifics of our reclamation statutes, State statutes, that 
are also included, so I think that the State enforces, in the 
programs that it has delegation, the State enforces those 
Federal laws appropriately and, further, it enforces its State 
laws and regulations appropriately.
    Mrs. Cubin. You mentioned in your testimony the fact that a 
special levy on miners pays for a liaison person between the 
Nevada Department of Environmental Protection and the BLM to 
en-

sure that the Federal and State permitting is smooth. Would you 
elaborate on how that works and how it is working as well?
    Mr. Drozdoff. Sure I would. It is a relatively new program. 
It has been in place for about a year, and the liaison position 
serves many functions. It serves on large scale issues, such as 
reviewing our memorandum of understanding with the BLM and the 
Forest Service on ways to improve that, but as Ms. Rivers-
Council said, there are other issues that continually have come 
up that require more immediate attention and they are specific 
on the ground issues.
    At a specific mind-set, that may require that the two 
agencies communicate effectively and quickly, and all three of 
those areas, the liaison position has helped. Its genesis was--
the position was a 1-year position that was in place. The BLM, 
the NDEP, environmental groups and industry, it seemed like it 
was doing a good--it was providing a good service. Certainly, I 
would think from the industry's perspective, they were able to 
talk to both agencies at one time, which was an improvement. 
And so I would say it has been a good success, and the point I 
guess I would make about that in relation to the entire 3809 
process is if it is determined that 3809 needs to be reviewed, 
the area where some information would be--it would be 
interesting to hear whether having this sort of flexible 
approach, having the resources to fund liaison positions and 
having ability to put forth meaningful memorandums of 
understanding, I think, would go very far in everybody's role 
of protecting the environment, but at the same point, give 
everybody the tools to do it in a way that makes the most 
sense.
    Mrs. Cubin. One last thing. We certainly would welcome 
written testimony from the State engineer.
    Mr. Drozdoff. OK.
    Mrs. Cubin. I guess I can go ahead and cover this--well, 
never mind. Now, I would like to move to Ms. Rivers-Council, 
and first of all, congratulate you and you, Mr. Blackwell, on 
testimony from Mr. Drozdoff that said how you worked together, 
and that is absolutely the most important thing and it really 
is the only bit of good news I have really received coming out 
into the districts and into the States and I really do 
appreciate that and just encourage you to keep up that level of 
cooperation in working with the local people, the companies and 
the State governments.
    You mentioned the USGS' efforts to study the hydrology in 
the Humboldt Basin. How does this effect differ from Dr. Myers' 
work, the Great Basin Mine Watch?
    Ms. Rivers-Council. I really can't respond to how Dr. 
Myers' work differs or has similarities to what the USGS is 
doing in concert with other partners, universities, industry. I 
really cannot speak to that at all, Congresswoman.
    Mrs. Cubin. That is fine. Let me ask you this question, 
then. What do you think of the concept that if the Nevada State 
engineer does not interpret Nevada environmental laws, water 
laws appropriately, that the BLM should step in and enforce 
those laws.
    Ms. Rivers-Council. I am not sure I understand if you are 
asking me for an opinion or if something has been stated in 
that regard.
    Mrs. Cubin. And this certainly, I want to be fair to Dr. 
Myers, so if he hears something here he disagrees with, I 
encourage you to send in your written response afterwards, but 
after his testimony, I asked him if my understanding was 
correct, that he would suggest that if the Nevada State 
engineer was not interpreting Nevada water law or environmental 
law correctly, or appropriately, that the BLM should step in 
and do that, and you heard his answer.
    Ms. Rivers-Council. I do remember the question now that I 
have heard you ask it again. I guess I have not even considered 
that the State water engineer could not interpret 
appropriately. We do work so closely together, the BLM and the 
State, and our relationships are intact in such a way that if 
there are concerns or disagreements, we are able to at least 
sit down and try to talk through what those issues are. It 
would be very difficult for me to even envision that we would 
have to necessarily step in over the water engineer.
    Mrs. Cubin. Thank you. Congress did the 2-acre exemption 
under Smacker in the late 1980's because there was evidence 
that--when I say ``did in,'' I mean they eliminated it. There 
was evidence that they were stringing--that some coal miners in 
Appalachian, not Wyoming, were stringing some of those 1.9-acre 
sections and so they took that back.
    Do you have any fear that if the 5-acre exemption was 
eliminated, I mean, I have fear that what Representative 
Gibbons talked about might happen. Do you have any opinion on 
what impact that stringing together could have with the 1.9-
acre operations?
    Ms. Rivers-Council. I would hesitate to try to compare the 
mining laws with coal mining because, No. 1, I know very, very 
little about coal mining and probably just a fraction more on 
mining activities. I believe that Secretary Babbitt's intent is 
to fully scope out the impacts of either eliminating the 5-acre 
threshold or maintaining it.
    Mrs. Cubin. So that wouldn't fit at all, then. Everyone 
would just be in operation.
    Ms. Rivers-Council. I think there are a couple of 
possibilities. It could remain that it is a notice issue or it 
could become a full plan kind of an issue, or it could be 
considered along with basic surface use, and that is one of the 
elements of the scoping that is being reviewed, which gets into 
casual use, and that is basic surface disturbance.
    Mrs. Cubin. Thank you. I don't have any more questions. 
Just a statement that I am delighted to see a woman in your 
position because, frankly, sorry guys, we need a lot more 
women.
    Ms. Rivers-Council. Thank you. I agree with you 100 
percent.
    Mrs. Cubin. This will conclude the official part of the--
not the official, but the testimonial part of the hearing. I 
want to say one thing. I know that there are people here and 
people who wish they could be here who wanted to be able to 
testify in front of the Committee, and Jim wanted to make this 
statement.
    Mr. Gibbons. I had it all written out.
    Mrs. Cubin. This is his statement. He is the guy here, he 
can do it.
    Mr. Gibbons. I just wanted to offer, Madam Chairman, 
because of the limited time here today and the number of 
witnesses who wanted to testify who had information that they 
thought would be pertinent to these hearings, that we offer 
them an opportunity to submit in writing, and I would be happy 
to act as the receiver of that information to ensure that it 
got to the Committee and into the public record, any comments 
that they wanted to make, that they feel should be a part of 
the public record here today. So I would ask unanimous consent 
from the Committee that we have an opportunity to submit 
written testimony from those who were not provided an 
opportunity today, within a timeframe and I would limit that to 
about a 3-week period.
    Mrs. Cubin. Actually, we don't even probably need unanimous 
consent. That is the policy of this Subcommittee, although the 
3-week period that you request is longer than is typical. 
Usually we have a 10-day period before we close a record, but I 
am certainly happy to grant a 3-week period where anyone can 
send written testimony or comments on testimony that you may 
have heard and you can send that either to Representative 
Gibbons or directly to the Committee, which is generally the 
way that works, so thank you all.
    And the clerk, who is the real boss of this place, says be 
sure to include that those comments should say for the public 
record when they are submitted. So thank you all very much for 
your attendance here today and your concern about what is going 
on in the State and the country and it has been my pleasure to 
be here in Nevada with you and I do certainly hope to return.
    [Whereupon, at 1:10 p.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]
           Statement of Bill W. Upton, Placer Dome U.S. Inc.

    My name is Bill Upton. I am the Manager of Environmental 
Affairs for Placer Dome U.S. Inc. (PDUS). In this capacity, I 
have direct and oversight permitting responsibilities for PDUS. 
Placer Dome U.S. Inc. operates three large gold mines in the 
United States (two in Nevada and one in Montana) and conducts 
extensive mineral exploration throughout the west including 
Alaska. Our United States operations employ a total of 955 
people. We employ people in Nevada, Montana, Alaska and 
Kentucky.
    Placer Dome U.S. Inc. has a long history of permitting and 
operating on public land in Nevada and Montana. Our most recent 
permitting experience is the expansion of our existing mining 
operations. In Nevada, Cortez Gold Mines began operations in 
1969 and is located primarily on public land administered by 
the BLM and Bald Mountain Mine began operations in 1981 and is 
located exclusively on BLM administered lands. Our Golden 
Sunlight Mine in Montana began operations in 1981 and is 
primarily located on private land but also operates on some BLM 
administered land.
    All of our operations are permitted under the requirements 
of 43 CFR 3809 and have undergone extensive environmental 
reviews pursuant to the National Environmental Policy Act 
(NEPA). Permitting under 3809 and NEPA has been ongoing at 
Cortez Gold Mines since 1990. The BLM completed their first 
Environmental Impact Statement for Cortez in 1993. Subsequent 
discoveries led to the permitting of our Crescent Pit and 
preparation of another EIS for our Pipeline Pit and No. 2 Mill 
Expansion. The BLM is currently completing an Environmental 
Impact Statement for the most recent Cortez Plan of Operations, 
``The 1996 Amendment to the Pipeline Plan of Operations, for 
the South Pipeline Project,'' which was submitted in September 
1996.
    In 1993 PDUS acquired the Alligator Ridge Mine, which was 
originally permitted under 3809 in 1981 by another operator, 
and merged it with our nearby Bald Mountain Mine operations 
which began commercial scale heap leaching operations in 1985. 
The BLM completed an EIS for the expansion of Bald Mountain 
Mine in 1995 and most recently permitted Bald Mountain's LJ 
Ridge expansion. In 1993 Bald Mountain mine received the Nevada 
Governors Award for outstanding reclamation and just this year 
PDUS received the BLM National ``Health of the Land Award'' for 
our reclamation efforts conducted at the Alligator Ridge Mine.
    At Golden Sunlight in Montana initial mine development was 
permitted in 1981 under the Montana Mining and Mineral Policy 
Act and the Montana Environmental Policy Act. In 1995 the mine 
submitted an application to expand operations and the Montana 
Department of Environmental Quality as the lead agency and the 
BLM as a cooperating agency are completing an EIS for the 
expansion.
    Nevada and Montana have primacy for permit programs 
required by the Resource Conservation and Recovery, Clean 
Water, and the Clean Air Acts. In addition both states have 
regulations requiring the reclamation of lands disturbed by 
mining. Each PDUS mining operation has obtained and must comply 
with the requirements of these various state and Federal 
permits as well.
    PDUS supports reasonable surface management and permitting 
regulations for our operations on both public and private 
lands. Based on our experience with permitting mining 
activities on public lands in two different states, we believe 
the current Federal permitting requirements adequately protect 
public lands and that any further Federal permitting 
requirements or regulation would be of little benefit and would 
only duplicate existing State programs and complicate the 
excellent State and Federal permitting and regulatory programs 
in these states.
    The remainder of my testimony will center on the BLM's 
review of possible changes to their surface management 
regulations for mineral operations under 43 CFR 3809. PDUS had 
the opportunity to tour several members of the BLM Task Force 
conducting this review at our Pipeline Project in April and at 
Golden Sunlight in early September. The Task Force saw first 
hand how many of the issues they are concerned with in 3809 are 
being managed effectively on the ground under their current 
regulations and the strong State and Federal regulatory 
programs in both states.
    For example at Cortez they saw Notice Level exploration 
drilling operations and the controls incorporated in these 
operations to prevent unnecessary and undue degradation. They 
walked over areas where similar activities had been conducted 
the season before and which had already been reclaimed and 
which were nearly indistinguishable from the adjacent 
undisturbed land. They saw the comparatively low density and 
intensity of disturbance typical of this activity. We explained 
to them how important Notice Level exploration is to our long 
term planning and survival, how it provides the opportunity to 
gain timely access to prospective areas to further assess their 
mineral potential before investing the enormous amount of time 
and money required to permit Plan Level disturbance (greater 
than 5 acres) under 3809.
    At Golden Sunlight the details of their steep slope 
reclamation plan including a sophisticated soil cover, 
revegetation emphasizing the establishment of native plant 
species and comprehensive reclamation monitoring program were 
observed. The Task Force observed the importance of 
incorporating site specific conditions such as topography, 
soils and precipitation into the reclamation plan and how this 
had been accomplished through the existing State and Federal 
permitting program in Montana. They also saw the distinct 
differences in site conditions between Golden Sunlight and 
Cortez. Unlike many other industries mining can only occur 
where the resource is located. The contrast in site conditions 
between Golden Sunlight and Cortez and the resulting 
differences in their reclamation plans are a good example of 
why ``one size fits all'' performance standards would be 
inappropriate for hard rock mining given the wide variety of 
site conditions within which it can occur.
    Pit backfilling including the enormous expense in dollars 
and resources to accomplish it, the potential adverse 
environmental impacts associated with it and the loss in 
potential mineable resources it would result in were discussed 
at both operations with the Task Force. The Task Force learned 
first hand how this issue was included in the alternative 
analysis during the permitting of both operations and therefore 
is already receiving detailed evaluation as part of existing 
State and Federal permitting requirements.
    Most importantly the Task Force saw how permitting and 
regulation of hard rock mining is being effectively coordinated 
with State Government in both Nevada and Montana. They saw how 
the permitting role of these States on issues concerning air 
quality and water quality and quantity is being coordinated 
with the BLM and effectively carried out in a manner protective 
of public lands.
    We took the opportunity while the Task Force was touring 
our mines to emphasize that while they were considering 
revisions to their 3809 regulations there were many other new 
or pending state and Federal regulatory proposals which 
individually and collectively would have significant affect on 
our operations and our industry in general. The most important 
of these new and pending rulemakings include the following: 
EPA's addition of hard rock mining to the list of industries 
covered by the Toxic Release Inventory requirements, new 
particulate standards for regulating dust, proposed regional 
haze regulations, efforts to possibly narrow or eliminate the 
Bevill Amendment, and proposed Hard Rock Mining Framework, and 
the new BLM bonding requirements. We urged the Task Force to 
consider these recent or pending regulatory changes as part of 
their review.
    In summary PDUS believes, as we showed and explained to the 
BLM 3809 Task Force, the existing 3809 regulations are working 
to protect public lands. As new and expanded mining methods and 
operations begin the current 3809 regulations complemented by 
strong state regulatory programs have provided for and will 
continue to provide for the adequate protection of public 
lands. Contrary to those who oppose mining or would support 
additional regulatory controls on our operations, we have not 
seen any evidence that additional regulation is warranted. The 
examples I've provided from our operations in Nevada and 
Montana are testimony to the fact that current regulations are 
comprehensive and when properly implemented in coordination 
with state programs adequately protect public, as well as, 
private lands.
    I want to thank you for the opportunity to address this 
Committee and will do my best to answer any questions.
                                ------                                


                     Statement of Everett E. Gustin

    Madam Chairman, Honorable Members:
    Welcome to Elko. I sincerely appreciate your willingness to 
conduct this oversight hearing on this most vital issue. More 
importantly, that you are reaching out for constituent input is 
very encouraging.
    Having been involved in the mining industry in the Western 
United States for some twenty-seven years in several different 
capacities ranging from tramp miner to superintendent of mining 
at two large operations, to mine claim holder, to owner of an 
independent contracting business serving mining, I've been 
afforded many different perspectives on the evolution of the 
regulatory regime and political and populist perceptions of the 
value of mining in modern day life in this country.
    But how these perceptions and attitudes interface with 
reality and legality is the subject at hand today. The current 
effort to rewrite through administrative fiat mining rules and 
regulations that have taken over one hundred and thirty years 
to evolve and be refined is at best, the height of bureaucratic 
arrogance and at worst, a crude, misdirected and illegal power 
play that simply cannot be tolerated by Congress, the states, 
the courts or the people of this country.
    Stepping away from generalities and moving into specifics, 
I offer the following for your consideration:

    Why are we bringing forth words here today to our duly 
elected representatives asking them to rein in the activities 
of a government employee run wild? An appointee within whose 
purported purview it is, to write the regulations, implement 
the rules, and review and adjudicate decisions concerning basic 
individual rights violate the separation of powers doctrine. 
The western United States ``subject'' of this medieval realm, 
who thought he owned the possessory title in mining, grazing, 
water or agricultural rights, and the rights to make 
improvements on such, is dragged through a kangaroo gathering 
called the court of administrative appeals, where the 
legislative, executive and judicial branches have been rolled 
into one easy instrument of rule without recourse.
    And what is the alleged mechanism justifying this complete 
bypass of our system of checks and balances and the separation 
of powers?: The proprietary interest of the Federal Government 
in 87 percent of the State of Nevada. The very Federal 
Government of whose mandates include fairness and equality 
between the States and of the Bill of Rights for our individual 
citizens. Where did we go wrong? How many people in the State 
of Nevada and the other western States are chained to the 
arbitrary rule of appointed and, anointed by some, 
administrative henchmen such as the Secretary of the Interior? 
A position now apparently on a historically increasing momentum 
with the inclination to assign itself police powers, ignore 
Federal law attempting to regulate itself, i.e. the 
Administrative Procedures Act, and strip American Citizens of 
their Bill of Rights when engaging in activity out on the land 
that is purported to ``belong to all of us.''
    Justice Scalia writing for the majority in the June 27, 
1997, Supreme Court case Printz vs U.S., instructed us: ``The 
separation of the two sovereign spheres is one of the 
Constitution's structural protections of liberty. Just as the 
separation and independence of the coordinate branches of the 
Federal Government serve to prevent the accumulation of 
excessive power in any one branch, a healthy balance of power 
between the States and the Federal Government will reduce the 
risk of tyranny and abuse from either front.''
    To quote further: ``In the compound republic of America, 
the power surrendered by the people is first divided between 
two distinct governments, and then the portion allotted to each 
subdivided among distinct and separate departments. Hence a 
double security arises to the rights of the people . . .'' and 
``Federal commandeering of State governments is such a novel 
phenomenon that this Court's first experience with it did not 
occur until the 1970's when the E.P.A. promulgated regulations 
requiring states to prescribe auto emission testing . . . and 
on this issue, the Courts of Appeals for the Fourth and Ninth 
Circuits invalidated the regulations on statutory grounds in 
order to avoid what they perceived to be grave constitutional 
issues. The District of Columbia Circuit invalidated the 
regulations on both Constitutional and statutory grounds. After 
the Supreme Court granted certiorari to review statutory and 
constitutional validity of the regulation; the Government 
declined to defend them and instead rescinded some and conceded 
the invalidity of those that remained. . . .''
    And in conclusion, he wrote . . .
    ``We held in New York that Congress cannot compel the 
States to enact or enforce a Federal regulatory program. Today 
we hold that Congress cannot circumvent that prohibition by 
conscripting that State's officers directly. The Federal 
Government may neither issue directives requiring the States to 
address particular problems, nor command the States' officers, 
or those of their political subdivisions, to administer or 
enforce a Federal regulatory program. It matters not whether 
policymaking is involved, and no case by case weighing of the 
burdens or benefits is necessary; such commands are 
fundamentally incompatible with our constitutional system of 
dual sovereignty. Accordingly, the judgment of the Court of 
Appeals for the Ninth Circuit is reversed.''
    I'm certain that the Honorable Members here today are 
familiar with and understand the intent of the court's 
instruction. So, I ask you today, are Members of Congress ready 
to tackle this issue politically and legally or will the burden 
fall to the directly affected parties yet again?
    Mining is America's financial backbone. The Mining Law is 
the last great vestige of acquiring proprietary interest by 
common law principle, mixing sweat with soil to earn equity. 
Mining has made America strong without subsidy.
    I've witnessed 70 percent of the mining claims be regulated 
and taxed out of business in the last several years. I've 
experienced a 40 percent reduction in my personal business this 
year because of an illegal bonding rule implementation. Mining 
has been under an escalating P.R. assault for the past several 
years. We try to respond with reason and logic and compliance 
and what does it get us? More assault, more restrictions. I've 
personally traveled to countless meetings, raised funds for 
lawsuits on behalf of mining, been personally harassed for 
becoming politically active and openly advocating for mining. 
Many others have made these and other sacrifices, but we are 
losing the war. I encourage you to legislate, leverage funding 
and even litigate to bring this insanity to an abrupt halt. 
There is nothing to be gained by allowing the 3809 rewrite to 
advance as proposed, and everything to be lost.
    You have either heard or will hear from others today that 
the mining industry in Nevada does an excellent job under the 
current statutory framework. No notable shortcomings are 
evident. I assure you that an industry already suffering under 
falling commodity prices, over-regulation, severely shaken 
stock market confidence and severely restricted access to prime 
exploration land will have no alternative but to look 
elsewhere. They will continue to take their money, expertise 
and many jobs with them.
    I understand the difficulties you face in Congress from a 
political and ``numbers game'' standpoint. Perhaps a challenge 
to this action on constitutional grounds would be more 
productive for us all. The Supreme Court seems to agree.
    The states are and can continue to be capable of enforcing 
regulations to ensure environmentally responsible mining 
activity. Please pave the way to allow that to happen.
    Thank you for the opportunity to present my views.
                                ------                                


   Statement of Royce L. Hackworth, Chairman, Elko County Commission

    Madam Chairman and Subcommittee Members on Energy and 
Mineral Resources, I am Royce L. Hackworth, Chairman of the 
Elko County Commission and owner of Hackworth Drilling Inc.
    I want to welcome you to Elko the county seat of Elko 
County. I appreciate this Subcommittee coming to the people and 
area where the revision of the 3809 regulations will effect. It 
shows the mining industry, the residents of Elko County and the 
United States the willingness and concern you have in getting 
the facts on whether the BLM needs to rewrite the 3809 
regulations.
    Elko County is 10,900,000 acres in size, yet only 28 
percent of it is under private ownership. The other 
approximately 72 percent of the county is Public Lands under 
Federal Management. On the public lands in Elko County the 
mining industry does explore for and find many valuable mineral 
deposits, such as gold, silver, copper, barite bentonite and 
gypsum just to name a few. The mining industry creates many 
good paying jobs in the exploration of and development of these 
resources. On average the industry pays in excess of $38,000 
per year plus benefits in the jobs it creates. The jobs that 
are created employ people with PhD's all the way down to those 
who did not complete high school. The mining industry creates 
good paying jobs for men and women alike. These high paying 
jobs do not make their employees depend on state and Federal 
subsidized housing, food programs, health care programs to live 
the American Dream. In fact the industry and their employees 
pay taxes for those who depend upon state and Federal programs 
just to live.
    My concern is the change in attitude toward the mining 
industry by the Federal agencies by the implementation on undue 
or excessive regulations. What troubles me is the method and 
reasoning the BLM has used in deciding ehange the 3809 
regulations. I do not believe nor will I accept the Secretary 
of the Interior haviing the power to circumvent the NEPA 
process and Congress in changing the 3809 regulations. The BLM 
does not clearly define a purpose and need along with a 
definitive and specific proposed action for public scoping as 
NEPA regulations require that every EIS ``briefly specify the 
underlying purpose and need to which the agency is responding 
in proposing the alternatives including the proposed actions.'' 
40 CFR 1502.13. When the secretary makes a statement (in his 
letter of January 6, 1997) that ``It is plainly no longer in 
the public interest to wait for Congress to enact legislation . 
. .'' I fear for the future of our country. Nor the framers of 
our Constitution or you as duly elected Members of Congress 
would or should believe that any Federal agency could obtain or 
try to circumvent the powers given to Congress. The 3809 
regulations are not an impending emergency to our national 
security. So why should the Secretary be permitted not to 
follow the normal NEPA process or circumvent Congressional 
wisdom.
    The Federal public land agencies cannot nor should not be 
given unlimited ability to create regulations without 
Congressional oversight. Let me give you a couple of examples 
of regulations run amuck by the Federal Land agencies in our 
county.
    1. Here in Elko County, U.S. Forest Service employees of 
the Humboldt-Toiyabe National Forest, are protected by agency 
regulations that prohibit them from being subpoenaed to testify 
before a grand jury. A classic example of a employee being 
immune from the laws that every citizen of the United States 
has to abide by.
    2. Where logic does not work when it comes to Federal land 
managers just following the regulations they are in charge of--
Jarbidge Community Cemetery. Elko County in trying to obtain a 
one-acre addition to expand the current cemetery. The USFS 
comes back to the county with a 20 year lease for the one acre 
parcel. The county is in a dilemma. We do not know whether to 
rename the cemetery the Jarbidge Community Time Share Cemetery 
or the Jarbidge-Lazarus Cemetery. With the current boldness of 
the Federal Land Agencies in creating new regulations, I feel 
they believe, they have been granted a higher power of 
authority. However, I do not believe they will be able to raise 
the dead every 20 years to renew their cemetery lease.
    3. This year the BLM enacted new bonding requirements for 
claim holders on the public lands without following the NEPA 
process correctly. This is just putting more nails in coffin 
for mining activity in the United States. We have already seen 
a 70 percent reduction in claim holders when the $100 holding 
fee per claim was enacted. By not encouraging people and 
companies to look for mineral discovery here at home we are 
driving the mining industry outside of our country with good 
paying jobs.
    I am here today as a County Commissioner asking you to 
please stop the BLM from enacting undue regulations on the 
mining industry. The current regulations are being handled by 
the states and current Federal law. Please use what ever power 
you have to curtail the Secretary of the Interior for not 
following the true NEPA process in creating regulations. Also, 
I am asking you to revoke the newly enacted BLM bonding 
regulation and have the bonding regulations go through a true 
NEPA process that defines the purpose and needs in the way the 
law intended it to be enacted. In the State of Nevada we have a 
comprehensive regulatory environment to protect the citizens 
and the lands in our state.
    I thank you for the opportunity to make this testimony.
                                ------                                


 Statement of Zane Stanley Miles, Chief Deputy, Eureka County District 
                                Attorney

    Chairman Cubin and Members of the Subcommittee:
    My name is Zane Stanley Miles. I am a member of the Nevada 
State Bar, currently serving as deputy district attorney of 
Eureka County, the leading county in the United States for the 
production of gold. I am here representing the district 
attorney's office and Eureka County. My office and Eureka 
County government are grateful to the Committee for its 
decision to come to Gold Country, U.S.A., to hear our comments 
on proposed revisions to hardrock mining regulations.
    My qualifications to give testimony before you today are 
based upon my extensive experience in and observing local 
government in Nevada, California, Colorado and Washington 
State. During the past 20 years I have served as a district 
attorney or deputy district attorney in three Nevada mining and 
ranching counties and as public defender for Elko County where 
we meet today. Previously, I was the editor of daily newspapers 
in four different states, including two dailies in Nevada, and 
served for some years as state editor and business editor of 
the old Nevada State Journal in Reno. I don't consider myself 
an academic expert, but I do know from practical experience how 
local government works and should work. And I do know a lot 
about rural Nevada and its economy.
    There are many other persons scheduled to testify today who 
are far better qualified than I am to discuss technical mining 
matters. Therefore, our testimony will be concerned primarily 
with the LEGAL effects of the regulations proposed by the 
Department of the Interior.
    It is our belief that there are no legal benefits--and that 
there are substantial legal detriments--to be found in the 
proposed regulations. When subjected to a cost/benefit 
analysis, the proposals fall short of providing any rationale 
for their adoption. The reasons for our belief are set forth 
below.

I--THE MINING LAWS OF 1866 AND 1873 HAVE WORKED FOR 125 YEARS. 
TODAY, THE LAWS HAVE BEEN GUTTED BY INTERIOR'S BUREAUCRACY.

    Congress in 1866 and 1873 enacted legislation intended to 
further and encourage development and use of the mineral 
resources of the Western territories. Those Acts and other laws 
effectively severed mineral rights from the basic fee estate, 
and authorized the public to appropriate and develop the 
minerals. Some authorization (patenting) was expressly spelled 
out in the statutes; the laws also generally recognized the 
Western laws and custom of prior appropriation to beneficial 
use (unpatented claims).
    Subject to bonanza and borrasca, boom and bust, mining 
prospered in the West for a century. The majesty, the greatness 
of the Congressional scheme was that the Western mineral lodes 
were available to anyone willing to tramp the hills and look 
for color. The resources were not solely for big business, they 
benefited the little guy as well.
    For years and years the small miner and prospector could 
protect his interest in an unpatented claim by doing a small 
amount of ``assessment work'' each year. Thus he could hold 
onto a prospect until he could raise cash for development, or 
sell the claim to a larger mining company which had the 
financial resources to turn a claim into a property with a 
positive economic yield. In some cases it requires expenditure 
of millions, even billions, of dollars to convert a hole in the 
ground into a cash cow.
    A few years ago the bureaucrats in the Department of the 
Interior decided that ``assessment work'' was environmentally 
unsound. Instead, Interior decreed that an annual cash fee must 
be paid for every unpatented claim. The result of that ill-
advised decision was to drive the small, cash-starved miners 
and prospectors off their claims. They may have been able to 
finance the required assessment work each year, or do it 
themselves, but most of them could not come up with $200 or 
$100 per year per claim. They were forced to forfeit claims, 
instead of waiting out economic conditions for the proper time 
to develop.
    Ironically, almost all of the forfeited claims in Nevada 
have been taken up by the big mining companies, the very 
companies that Secretary of Interior Babbitt claims are reaping 
unwarranted profits. I don't agree with the Secretary's 
analysis, and Eureka County is pleased as punch to be the host 
county for giant operations such as Barrick, Newmont and 
Homestake. We admire their ability to marshal the billions of 
dollars in resources necessary to develop disseminated gold 
prospects.
    But it is a pity that the big operators no longer depend on 
the small miner and prospector to find mineral resources. And 
most of the blame for that is chargeable directly to Secretary 
Babbitt.
    Let me tell you a brief, illustrative story about former 
clients of mine. They're dead now, and I won't give you any 
names, although a lot of the people in this room will recognize 
the facts. The story actually is pretty well known in our area.
    He was a small miner and prospector all his life. He and 
his wife struggled, sometimes in abject poverty. Things never 
came together for them, but they did stake some promising 
claims. They did the annual assessment work, often themselves 
with pick and shovel, to maintain possession. As time passed, 
she was incapacitated with advanced diabetes; he became deaf 
and his physical strength deteriorated.
    Finally, they were able to sell some 75 claims to one of 
the big mining companies in a deal that would have paid them 
millions over an eight-year span. Life had passed them by, 
however. They were able to buy a new car before he collapsed 
and died from a massive heart attack; she died not long after.
    I wish my clients had been able to enjoy more of the fruits 
of their labors, but at least they received some benefit. 
Remember, they were able to keep their claims because they 
could satisfy the assessment requirements with manual labor. 
Just a few years later, and they would have lost those 75 
claims because they would not have had the money to pay the 
annual fees imposed by Secretary Babbitt. The big mining 
company which paid several million dollars for those claims 
could have simply top-filed and waited until my clients 
forfeited, picking up the claims for next to nothing. 
Naturally, in light of management's responsibility to the 
shareholders, it would have done so rather than paying my 
clients several million dollars.
    Perhaps Secretary Babbitt isn't evil; maybe he is only an 
example of the doctrine of unintended consequences. But his 
policy of requiring annual fees instead of assessment work has 
deprived hundreds of small prospectors in Nevada, thousands 
throughout the West, of the benefit of their labors, of the 
prospect of riches. And that was done by bureaucratic fiat, not 
after considered, measured debate in Congress.
    The Mining Laws of 1866 and 1872 worked, and worked well, 
until the Department of the Interior came under the control of 
a group of well-intentioned but ill-informed Secretary and 
bureaucrats who have imposed adverse regulations without 
approval of Congress. It is up to the Congress of the United 
States to take back law-making power from the bureaucrats, and 
revest that precious authority in the elected representatives 
of the people.
    There is a place, more than that, there is a need, in 
development of the mineral resources of the West for both the 
small prospector and the mega-corporation. Congress should 
insure that there is room for both.

II--STATE AND LOCAL GOVERNMENT ARE CAPABLE OF ENFORCING MINING 
REGULATIONS; THERE IS NO NEED FOR EXTENSIVE FEDERAL ACTION.

    Perhaps the most disturbing current trend in the Department 
of Interior is the apparent belief that only the bureaucracy in 
Washington, DC, knows what is best. The bureaucrats regularly 
ignore local government, just as they regularly ignore the 
Congress of the United States. It is appalling that Secretary 
Babbitt can declare that, since Congress has chosen not to act 
on some of his pet projects, that he'll impose his beliefs 
anyhow by adoption of bureaucratic rules and regulations.
    On a state and local level, the State of Nevada and 
Nevada's mining counties have an excellent record of 
commonsense enforcement of environmental and other controls on 
the mining industry. Our enforcement is thoughtful, unbiased, 
complete, effective, and accomplished with due regard for the 
benefits resulting from mineral development.
    From our viewpoint, certain things aren't really worth 
worrying about. A good example is Secretary Babbitt's new 
regulation which requires bonding for reclamation of areas of 
disturbance of only five acres.
    Nevada's land area is 110,000 square miles, 640 acres per 
square mile. Perhaps a tenth of that area has mineral 
potential. Far less than a tenth of that tenth (1 percent of 
our total area) ever will be subject to surface disturbance. 
Five-acre mine sites just don't amount to much in the greater 
scheme of things. Imposing bonding requirements on five-acre 
sites simply serves to impoverish the small, cash-starved miner 
and prospector who is struggling to develop a prospect.
    However, if Congress in its wisdom were to decree that all 
environmental rules be applied to such small sites, the Nevada 
Division of Minerals and the local District Attorneys would 
enforce the laws. We've done so in the past in other contexts. 
I know of important mines in Nevada which have been prosecuted 
by the local District Attorney for violation of the Migratory 
Bird Act or the Endangered Species Act. Some of us may not 
think much of some of those laws, but as long as they are on 
the books, we'll do our job.
    Generally, in Nevada, our Legislature has seen fit to 
authorize state agencies to contract with the Federal 
Government to enforce such laws. It's part of our frontier 
heritage. If it has to be done, we'd rather do it ourselves. We 
still insist that the phrase, ``I'm from the Federal Government 
and I'm here to help you''! is an oxymoron. So, our Nevada 
Division of Environmental Protection enforces Federal 
environmental law; our Division of Mines enforces Federal 
mining laws; our Department of Wildlife enforces Federal 
migratory bird laws and endangered species laws.
    And in all of those cases, the office of the local District 
Attorney is charged with the duty of prosecution after the 
state offices have completed their investigation of alleged 
irregularities. Only in very limited circumstances does our 
Nevada Attorney General have the authority to intervene in such 
matters.
    In Nevada, we believe that laws should be enforced by the 
political entity closest to the people, county government 
through its district attorneys. We believe that local 
enforcement is much more acceptable to the public than 
enforcement emanating from some bureaucrat's office in 
Washington. The imposition of regulations AND the imposition of 
enforcement from above is antithetical to the American 
experience. We don't need national police forces. 
Unfortunately, in the past 30 years power-hungry Federal 
bureaucrats have moved in that direction.
    Our local District Attorneys prosecute even unpopular laws 
without fear of favor. An example:

    In one of Nevada's mining counties a few years ago a couple 
of migratory birds managed to get inside the netting which a 
mine had erected to keep birds and animals out of a cyanide-
laden pond. The mining company had gone to considerable expense 
to comply with the applicable Federal laws. The exploring birds 
died, of course. The Nevada Division of Wildlife investigated, 
and submitted the facts to the District Attorney. The District 
Attorney, although the decision certainly was unpopular with 
mining interests, prosecuted and obtained a very substantial 
fine in settlement. I believe it was $50,000, or $25,000 per 
bird. The exact amount isn't important. What is important is 
that the state and local authorities handled the matter, 
expeditiously and efficiently, without any need for recourse to 
the Federal courts.
    If I can make any points to you today, it would be these 
two:

    (1) Congress must take its law-making powers more 
seriously, and sharply limit the power of unelected bureaucrats 
to make rules and regulations with the force of law, and
    (2) Where Federal laws, rules and regulations are needed, 
Congress should mandate that its laws be enforced by the states 
and local governments if the states and local governments are 
willing so to do. Direct Federal enforcement is unnecessary 
unless states and counties refuse to act. That has not been the 
case in Nevada.
    Respectfully submitted by the EUREKA COUNTY DISTRICT 
ATTORNEY, William E. Schaeffer, District Attorney
                                ------                                


 Statement of Jack Blackwell, Deputy Regional Forester, Intermountain 
                      Region, USDA, Forest Service

    Madam Chairman and Members of the Subcommittee:
    Thank you for the opportunity to discuss the Forest 
Service's hard rock mining program.
    For over 125 years, the mining industry has explored and 
developed locatable minerals underlying Federal lands, under 
provisions of the 1872 Mining Law. The Mining Law of 1872, and 
legislation since 1872, make public lands available for mineral 
development, allow private enterprise to develop and maintain 
an economically sound and stable domestic mining industry, and 
provide for the orderly development of domestic mineral 
resources.
    Under Forest Service regulations, operators are required to 
reclaim lands to prevent or control damage to the environment 
so that existing problems with abandoned mines are not 
compounded.
    Reclamation must be accomplished to protect other affected 
resources and minimize on-site and off-site damage, and to 
protect public safety. Before operations commence, the Forest 
Service in conjunction with operators, must establish and 
document in the plan of operations the reclamation standards 
for each site-specific activity.
    Currently, under USDA regulations, minerals are considered 
in the overall context of planning for all resources. We have 
made progress in the last few years in administering our 
regulations for locatable minerals, including more thorough 
documentation and disclosure of effects of mineral activities 
under the National Environmental Policy Act. We strive to 
continually improve planning and administrative activities 
under statutory authority.

Hard Rock Mining Permitting Process

    The Forest Service administers 5,000 to 6,000 plans of 
operation each year for hard rock mineral projects. The 
Intermountain Region, of which the Humboldt-Toiyabe National 
Forests are a part, has the heaviest minerals workload within 
the Forest Service. The Region administers about 2000 hard rock 
plans of operation per year.
    When we receive a mining proposal, it is analyzed to 
determine if a plan of operations is necessary. If necessary, 
the plan is reviewed to determine if it contains the required 
information, what level of environmental analysis is needed, 
and if additional time is required to review the plan of 
operations. Within thirty days of receipt of a plan of 
operations, the district ranger informs the operator of the 
status of the plan.
    Once all necessary information is provided, the 
environmental analysis is undertaken to analyze and disclose 
potential environment effects, and alternatives to the 
proposal. The plan of operations may be revised to include any 
additional items identified in the decision which were not in 
the original plan of operations. Once the plan is complete and 
a bond has been submitted for reclamation, the plan is 
approved.
    Generally, projects are processed expeditiously in 
cooperation with the mining companies. The Forest Service 
discusses the proposal with the company to determine how the 
proposal can best meet the intent of the regulations. The 
Forest Service works with other Federal, state and local 
agencies to help coordinate the permitting process and avoid 
duplication. Memorandums of Understanding exist for program-
wide coordination and are also developed for project-specific 
needs to facilitate this cooperation.
    When project applications are received, the Intermountain 
Region strives to process mining operation applications quickly 
to accommodate the company's schedule, within the constraints 
of existing laws and regulations. For example, here in Elko 
County, the Jerritt Canyon Mine Expansion and DASH Project, 
both major undertakings, were permitted in less than 16 months. 
In contrast, a 1996 study commissioned by the Gold Institute 
found that the average time to permit a gold mine in the United 
States was in the range of 4 to 5 years.
    One shortcoming of the Forest Service's permitting process 
for mining operations is our inability to meet consistently the 
timeframes specified in minerals regulations. The Forest 
Service is working hard to have these time frames work concur-

rently with other mandatory time frames, rather than 
sequentially. The Council on Environmental Quality is also 
working to remedy the problem of inconsistent time frames 
through its NEPA effectiveness study.
    Field units with the heaviest hard rock mining workloads 
have also been encouraging a regulatory review and update for a 
number of other issues. Accordingly, we are examining possible 
modification of the surface-use regulations and have included 
this effort in the fiscal year 1997 plan of work, which will 
extend into fiscal year 1998.
    These regulations were first issued in 1974, and no 
substantive modifications have occurred since. They have 
provided the Forest Service and the mining community with the 
means of meeting their mutual environmental responsibilities to 
protect the surface resources of National Forest System lands. 
They are intended to provide that protection without 
unreasonably inhibiting or restricting the activities of 
prospectors and miners.

Current Status of Regulatory Review

    The Forest Service is examining changes to address 
shortcomings in the areas of occupancy, notices of intent, 
plans of operations, reclamation, and bonding. This effort is 
being coordinated with the Bureau of Land Management's review 
of its surface management regulations. The joint agency goal is 
to have regulations as consistent as possible.
    As we stated earlier, managing the surface resource effects 
of operations, much work remains to remediate the effects of 
historical operations which have been abandoned. The Forest 
Service, in cooperation with state and other agencies, is 
working to identify and correct these problems.
    This concludes my prepared testimony and I would be pleased 
to answer questions you may have.
                                ------                                

  Statement of Jean Rivers-Council, Associate State Director, Nevada 
                State Office, Bureau of Land Management
    Madam Chair and members of the Subcommittee. I appreciate the 
opportunity to appear here today to discuss the status of permitting 
hardrock mining operations on public lands managed by the Bureau of 
Land Management (BLM) in Nevada. The BLM regulates these operations 
pursuant to the general mining laws of the United States and the 
Federal Land Policy and Management Act.
    The State of Nevada is often called the Silver State. It became a 
state shortly after the discovery of the rich silver deposits of the 
Comstock Lode on the east side of the Sierra Nevada Mountains. Now, 
more than a century later, gold production in northern Nevada has 
eclipsed the silver production of the famous Comstock.
    It is important to note that proper management of minerals 
production is only one of many resource issues for the BLM in Nevada. 
About 67 percent of the total land in Nevada is managed by the BLM. In 
addition, BLM Nevada has recorded over 756,000 mining claims of which 
135,000 are still active (involving more than two million acres). More 
than half of all new claims filed annually with the BLM are recorded in 
Nevada.
    Today I would like to focus on one aspect of the BLM's Nevada 
programs--the BLM's work with the mining industry. Nevada is the 
largest producer of gold and silver in the United States. About 67 
percent of gold production in the Nation is from Nevada. That amounts 
to over seven million ounces per year. It can be said that the modern 
gold rush started in Nevada. Public lands have played a significant 
role in mineral development in Nevada. They continue to do so.

Processing Trends

    To meet the needs of industry during this rush, the BLM and other 
regulatory agencies have worked intensively to reduce the time required 
to process notices and plans of operations. In the late 1980's, the 
time required to review and approve plans of operations and 
environmental impact statements was measured in years. The BLM 
recognized the pace of processing those plans was unacceptable. We 
addressed our process and improved it. In the last 2 years the BLM has 
developed more consistent and predictable technical guidelines. In 
several areas the agency has taken management steps to improve the 
quality and timeliness of review. Even with more complex plans of 
operation today, we have decreased review time. Some reviews of major 
plans of operations and environmental impact statements in Nevada take 
only twelve to fifteen months.
    In coordination with agencies of the State of Nevada, the BLM is 
now processing 13 major new mining projects, mine expansions, and 
environmental impact state-

ments. There are about 2,300 active existing notices of operations and 
335 open plans of operations on the public lands managed by the BLM in 
Nevada.

Regulatory Framework

    The basic Federal regulations under which we operate are found in 
43 CFR Part 3800. One provision of these regulations relates to smaller 
exploration and mining operations on public lands. These are operations 
which cause a cumulative surface disturbance of five acres or less. 
These operators are required to notify the BLM at least 15 calendar 
days before commencing operations.
    The regulations are different for exploration and mining projects 
on public lands managed by the BLM that exceed five acres of 
disturbance. These operators must have a plan of operation analyzed and 
approved by the BLM. As a Federal agency, the BLM has a regulatory 
responsibility to assure that all Federal laws and regulations are met. 
The agency must properly analyze the information and impacts concerning 
any proposed operation. It has a responsibility to disclose information 
on mining operations to the public, as the ultimate owners of the land.
    When the BLM processes exploration and mine plans and notices of 
operations, it must follow numerous Federal laws. These include the 
National Environmental Policy Act; National Historic Preservation Act; 
Endangered Species Act; Native American Graves Protection and 
Repatriation Act; American Indian Religious Freedom Act; Migratory Bird 
Treaty Act; the Federal Land Policy and Management Act; and the various 
statutes which make up the General Mining Law.

Changes affecting Processing Time

    As I noted earlier, development of mineral resources in Nevada has 
grown rapidly in recent years. Nevada production has escalated from 
about a half million ounces of gold per year in 1981 to over seven 
million ounces in 1997. A large percentage of that production occurred 
on America's public lands. New production activity has shifted away 
from mining in shallow pits with simple leach grade oxide ores. Today's 
production comes from huge, deep open pits. Some of it also comes from 
underground mining. Some mines are producing gold from more than 1,200 
feet below the surface. Furthermore, the ores produced today possess a 
far more complex chemistry and more expensive and challenging to 
process than those mined in the past.
    In many of the valleys of Nevada, the ore lies below the water 
table. In the 1980's, these mines dewatered at an initial rate of 7,000 
to 8,000 gallons per minute. To keep today's mines dry, water must be 
pumped at rates exceeding 30,000 to 50,000 gallons per minute.
    To provide scientific data to support future Federal and State 
permitting and environmental activities, the U.S. Geological Survey 
(USGS) is working as the lead agency with the Nevada Department of 
Conservation and Natural Resources on a water resource study of the 
cumulative impacts of mining in the Humboldt River Basin. Major funding 
has been provided by Barrick Goldstrike and Santa Fe Pacific Gold 
Companies (now a part of Newmont Mining Corporation).
    Major mining corporations have also come forward as working 
participants in the permitting process. They have voluntarily and 
willingly funded third party contracts to prepare National 
Environmental Policy Act documentation. Their willingness to work with 
the system, and to pay a fair share of the cost, has been crucial in 
reducing the length of the permitting process.

Good neighbors, cooperation

    As I mentioned at the outset, the BLM has responsibility for a 
major part of the land in Nevada. This agency works hard to be a good 
neighbor. One way we do that is to work with the State in the mineral 
exploration and mine permitting program. The BLM has reached some major 
agreements with the State of Nevada, including two with the Nevada 
Department of Conservation and Natural Resources.
    The first involved development of a program with the Department's 
Division of Environmental Protection for review of exploration and 
mining plans, reclamation bonding, inspections and reclamation 
requirements. Today there is a joint review process in Nevada.Under a 
memorandum of understanding with the State Division of Environmental 
Protection, we jointly hold over $375 million in reclamation bonds and 
sureties for exploration and mining operations on public lands.
         As part of this agreement, the State of Nevada, 
        through fees paid by industry and allocated by legislation, has 
        created a BLM-State mine permitting liaison position. This 
        person works to resolve mutual concerns regarding permitting. 
        Mining applicants benefit from the efficiency of this joint 
        operation.
    Under a second agreement, the BLM and the Nevada Division of 
Wildlife are cooperating in developing wildlife protection 
requirements, especially for tailings ponds and other mine ponds which 
contain chemicals used in mining operations.
    The BLM also works closely with the Nevada Division of Minerals 
regarding remediation of abandoned mine hazards. Mining has occurred in 
Nevada for more than 140 years. During that time many prospectors and 
miners abandoned sites without cleaning them up. The State is helping 
us with this problem. Last year more than a hundred hazardous mine 
sites were identified and secured by the state. The Division of 
Minerals works with the mineral industry and the counties to make lands 
managed by the BLM safe once more.
    The BLM has and will continue to practice and use the best science 
to address any new emerging issues. This can be achieved only through 
cooperation with the State and with industry. I have already mentioned 
the joint USGS-Nevada study of the Humboldt River Basin. The mutual 
goal is to provide more consistency and better predictability in the 
process. The results include some points in which we can all take 
pride. Let me list some of the products of this collaboration between 
the State, industry and Federal agencies.
         Comprehensive mine revegetation guidelines and 
        standards.
         Consistent water data analysis guidelines for mine 
        plans and environmental documentation.
         Guidelines for ecological risk assessment.
         Statewide guidance on how to address cumulative 
        impacts in environmental impact statements.

Challenges

    The BLM's hardrock mining surface regulations date back to 1981. 
Recent updates have included use and occupancy rules, an acid mine 
drainage policy, and hardrock bonding regulations. Secretary Babbitt in 
January of this year directed the BLM to form a 3809 task force which 
would address shortcomings in the current surface regulations, 
incorporate BLM policies which were developed to supplement the 
existing regulations, and meet BLM's strategic plan of incorporating 
``standards.'' The task force has embarked on a scheduled two year 
effort to update the 3809 regulations. Issues to be addressed include 
eliminating or modifying the 5-acre threshold for notices, revising the 
definition of unnecessary or undue degradation, expanding environmental 
and reclamation requirements, and clarifying casual use. Scoping 
meetings were held this spring throughout the country. We will be 
releasing to the public summaries of the comments at the scoping 
meetings.
    During your stay here in Elko I am sure you have observed that this 
is a vital, growing city with a strong economy. The employees of the 
BLM in Nevada are aware of the important role we play in maintaining 
this healthy, growing economy. During the past decade technological 
advances in the mining industry have allowed the region's gold mines to 
create this expansion. The BLM has kept up with those advances. We have 
reduced the time required to permit development of these mines on 
public land. At the same time, we have learned how to address complex, 
comprehensive plans for mines that are on a scale not imagined twenty 
years ago.
    This concludes my statement. I will be pleased to answer any 
questions you may have.
                                 ______
                                 
                Statement of Hon. Mike Franzoia, Mayor,
    Congresswoman Cubin and Congressman Gibbons
    I would like to thank you for providing me the opportunity to 
address you and personally welcome you to our great City.
    You are here today to listen to testimony regarding the mining 
industry. As a citizen of this City for the past 17 years, I would like 
to share with you the impact we have experienced from mining. All of 
this I've witnessed first hand.
    Elko continues to be a growing, thriving community. In 1980, our 
population was less than 10,000. We now have a population that 
approximates 19,000 and are projected to reach a population of nearly 
31,000 in the next 15 years. Initially, this growth presented impact 
challenges to our high quality of life. But through these challenges, 
the community began receiving many things that we otherwise may have 
waited for, or perhaps, would never have realized.
    Growth has been good for Elko, and the mining industry has played a 
role in our success. Let me give you a few examples:

         To bring new families in to the area, the mining 
        industry invested in permanent, quality housing developments. 
        This moved Elko away from being a ``boom'' town in the 
        traditional sense. The traditional ``boom'' town is one that 
        grows temporarily, then upon industry down turn, literally 
        moves out. The permanent investment into Elko by the mining 
        industry insures long-term community sustainability.
         Investment by the mining industry into our 
        recreational facilities enables us to offer activities to 
        citizens and visitors of all ages. Donations in cash and 
        services to recreational projects include equipment, parks, 
        sports fields, and a ski facility.
         Access to cultural activities and events have improved 
        for all of us. Our museum is in the middle of a major 
        expansion, the Western Folklife Center is a major attraction 
        for citizens and visitor alike, and the Great Basin College now 
        has a theater where we can enjoy a variety of entertaining 
        performances. All of these are benefactors of the generosity of 
        the mining industry.
         Education has been enhanced in Elko. What was once 
        known as the Northern Nevada Community College is now Great 
        Basin College. This fine institution offers education and 
        training in a wide variety of fields, including mining 
        technology. And we are all watching for this institution to 
        become a 4 year college in the near future. The mining industry 
        and its employee's have been great supporters of our college as 
        well as our public school system. A new junior high is now in 
        use in the Spring Creek area thanks to the mining industry's 
        major contribution to the project.
    We are glad this industry has impacted our community--it has been a 
positive impact on our quality of life. Legislation and regulation that 
harm mining is certainly not in the best interest of this community.
    Thank you for providing the time to me to share the excitement I 
feel about this City and the wonderful things we have to celebrate--
much of it a result of our mining industry neighbors.


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