[Congressional Record Volume 144, Number 72 (Friday, June 5, 1998)]
[Extensions of Remarks]
[Pages E1058-E1061]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  COMMITTEE ON RESOURCES OVERSIGHT REPORT ON INTERIOR DEPARTMENT RULE-
                                 MAKING

                                 ______
                                 

                             HON. DON YOUNG

                               of alaska

                    in the house of representatives

                          Friday, June 5, 1998

  Mr. YOUNG of Alaska. Mr. Speaker, today I am filing a report by the 
Committee on Resources entitled Abuse of Power: The Hardrock Bonding 
Rule which presents the results of the Committee's oversight 
investigation of an informal rule-making process at the Department of 
Interior. We are publishing the report in order to open the curtains 
and let full sunlight shine on Interior's rule-making process. The 
issue here is not about mining--it is about the right of a citizen to 
meaningful participation in the rule-making process.
  The report concludes that Department documents obtained by the 
Committee clearly show that undue interference of political appointees 
at Interior in the rule-making was so great that the integrity of the 
rule-making process itself was discredited. In addition, the new rule 
was published despite warnings from Interior's own regulation writers 
and lawyers that they had significant concerns about compliance with 
the Administrative Procedures Act (APA).
  After this regulation was implemented, political appointees at the 
Department of Interior attempted to prevent and obstruct the Committee 
on Resources from carrying out its Constitutional oversight 
responsibilities. A drawn-out string of dilatory tactics was initiated 
after all document pertaining to this rule-making were requested. Some 
records were produced by Interior pursuant to this request, but many 
documents were withheld from the Committee under a prospective claim of 
``privilege.'' The Department also tried to impose rules and conditions 
under which this Committee could have access to documents. After these 
dilatory tactics continued for more than three months, the Committee 
subpoenaed the documents.
  In their dissenting views file with the report, the Minority argues 
that the documents obtained under the subpoena are confidential and 
part of the deliberative process. We disagree. A consensus has emerged 
under the APA that a rule-making record or file should be created in 
informal rule-making. In Citizens

[[Page E1059]]

to Preserve Overton Park v. Volpe, the Supreme Court stated that, 
although agency action is entitled to a presumption of regularity, 
``that presumption is not to shield [the] action from a thorough, 
probing, in-depth review.'' 401 U.S. 402 (1971). These documents are 
part of the rule-making record.
  An appendix to the report contains some of the subpoenaed documents 
which illustrate the serious problems with this rule-making. Perhaps 
this will encourage the political appointees at Interior to comply with 
the laws governing rule-makings and goad the Department into reforming 
their rule-making process to restore meaningful input from the American 
people. Certainly, a higher standard can be expected of the ``most 
ethical Administration'' in American history.
  The Minority also says that ``despite assurances to the contrary'' 
during oversight hearings conducted by Subcommittee on Mineral and 
Energy Resources Chairman Barbara Cubin, the report concludes that 
actions by a special assistant to the Assistant Secretary for Land and 
Minerals constitutes a ``serious conflict of interest.'' The Minority 
is construing more from these remarks than we implied. Indeed, 
immediately after this statement during the June 19th hearing, Chairman 
Cubin told Department officials that ``the cure for this problem or 
perceived problem would be to allow public comment, because the 
appearance isn't very pretty. I mean it really looks bad. . . .'' 
Interior was also withholding key documents from the Committee at the 
time of the oversight hearings. Interior produced these documents, but 
only after they were subpoenaed, nearly two months after these remarks 
were made.
  In fact, Interior recently lost a lawsuit over this regulation. The 
Minority Views to the report try to minimize this stating that the 
court ``did find that DOI [Interior] violated only the procedural 
requirement of the RFA [Regulatory Flexibility Act] by not consulting 
with the SBA [Small Business Administration] on the definition of a 
`small entity.' ''
  The court decision concerned whether Interior obeyed the law in 
issuing the regulation. The court granted a summary judgment against 
Interior, which means that after construing all of the relevant facts 
in the most favorable light for Interior, the court found that Interior 
had no case, and ordered the Department to rescind the regulation and 
start over.
  In her concluding statement, the judge said, ``While recognizing the 
public interest in preserving the environment, the Court also 
recognizes the public interest in preserving the rights of parties 
which are affected by government regulation to be adequately informed 
when their interests are at stake and to participate in the regulatory 
process ad directed by Congress [emphasis added].'' I am attaching a 
copy of this Court decision to these remarks for inclusion in the 
Record.
  The Resources Committee told Interior officials more than a year 
ago--long before the Department was sued--that the new rule was illegal 
because the department violated the rule-making process. We urged them 
to withdraw the rule and correct these violations. Instead, Interior 
wasted taxpayer money defending an untenable position in a lawsuit.
  This whole sorry episode results from the refusal of a few imperious, 
high-level, politically motivated bureaucrats to obey laws that govern 
a rule-making. Accountability is the issue. Political bosses at 
Interior, who love to write regulations for others to obey or face 
severe penalties, refuse to heed laws that regulate their own actions. 
Shouldn't they be accountable too?

   [United States District Court for the District of Columbia, Civil 
                       Action No. 97-1013 (JLG)]

 Northwest Mining Association, plaintiff, v. Bruce Babbitt, Secretary, 
            U.S. Department of Interior; et al., defendants

                               memorandum

       This matter is before the Court on opposing motions for 
     summary judgment. The Plaintiff, Northwest Mining Association 
     (``NWMA'', disputes a final rule enacted by Defendant United 
     States Bureau of Land Management (``BLM'') concerning 
     reclamation of mining lands. The Small Business 
     Administration (``SBA'') submitted an amicus curiae brief in 
     favor of NWMA's position. The Arizona Mining Association and 
     the Nevada Mining Association jointly submitted an amici 
     curie brief, also in favor of NWMA's position. The Court 
     heard oral argument on March 10, 1998. For the reasons that 
     follow, NWMA's motion is granted and the BLM's motion is 
     denied.

                             I. Background

       In 1976, Congress enacted the Federal Land Policy and 
     Management Act (``FLPMA''), 43 U.S.C. 1701, (et seq. (1994). 
     Congress declared in the FLPMA that it is the policy of the 
     federal government, through the Secretary of the Interior, to 
     manage public lands ``in a manner which recognizes the 
     Nation's need for domestic sources of minerals . . . from 
     public lands[.]'' 43 U.S.C.  1701(a)(12).\1\ Congress, 
     however, also recognized the need to manage the public lands 
     ``in a manner that will protect the quality of scientific, 
     scenic, historical, ecological, environmental, air and 
     atmospheric, water resource, and archaeological values[.]'' 
     43 U.S.C. Sec. 1701(a)(8). Accordingly, while managing public 
     lands under the Act, the Secretary and the BLM must ``take 
     any action necessary to prevent unnecessary or undue 
     degradation of the lands'' by ``regulation or otherwise.'' 43 
     U.S.C. Sec. 1732(b).
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     \1\The Secretary is charged ``to promulgate rules and 
     regulations to carry out the purposes of [the] Act.'' 43 
     U.S.C. Sec. 1740. The administrator of these rules and 
     regulations is the Director of the BLM, through the authority 
     and at the direction of the Secretary. 43 U.S.C. 
     Sec. 1731(a).
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       The BLM's obligatory duty to prevent unnecessary or undue 
     degradation of public lands has significant application in 
     the mining industry. The extraction of hardrock minerals, 
     such as gold and copper, often involves the excavation of 
     large open pits, the use of toxic chemicals, disruption of 
     underground water, and various other negative environmental 
     effects. Historically, some miners abandoned their claims 
     after the minerals ran out and left the land disturbed. In 
     many cases, the use of millions of dollars of public funds 
     has been required to reclaim such old, abandoned mining 
     operations and return them to an environmentally sound state. 
     (Def. Mem. at 2-3.)
       In 1981, the BLM responded to this problem by promulgating 
     regulations, set forth in 43 C.F.R. Sec. 3809, which allowed 
     it to require bonds from miners in certain situations. 
     Bonding ensures a miner's compliance with environmental 
     standards by proactively funding the reclamation before the 
     operation begins. In the event of a miner's default of its 
     reclamation obligation, the bond, or other surety, will 
     fund the environmental restoration, not the public. (Def. 
     Mem. at 2-3.)
       The original regulations defined three levels of mining 
     activities: ``casual'' level use, where only negligible 
     disturbance of the land results (43 C.F.R. Sec.  3809.0-
     5(b)); ``notice'' level use, where mining operations are 
     greater than casual use but still disturb less than five 
     acres per calender year and where the operator need only 
     submit a general notification of operations to the BLM before 
     commencement (43 C.F.R. Sec. 3809.1-3(a)-(c)); and ``plan'' 
     level use, where more than five acres per calendar year are 
     disturbed and where the operator must submit a detailed plan 
     of all operations and reclamation to be undertaken to the BLM 
     for approval (43 C.F.R. Sec. 3809.2-9(b)). The original 
     regulations allowed the BLM to require plan level operators 
     to post a bond to ensure the reclamation of disturbed areas, 
     but such bonds were not mandatory to all plan level 
     operations (43 C.F.R. 3809.1`-9(b)).
       On July 11, 1991, the BLM issued a notice of proposed 
     rulemaking to amend its bonding requirement rules. The 
     proposed rule would require bonds for all mining operations 
     larger than casual level use. 56 Fed. Reg. 31,602 (1991). 
     Notice level operators would be required to post a $5,000 
     bond for each claim, Id. at 31,604, while plan level 
     operators would be required to post a bond in an amount 
     specified by the BLM, but in no case to exceed $1,000 per 
     acre for explorational operations and $2,000 per acre for 
     mining operations. Id. at 31,605. Additionally, the proposed 
     rule would allow alternative financial instruments to be 
     substituted or bonds, Id. at 31,602, and would require 
     operators with a history of noncompliance with BLM 
     regulations to file plans on subsequent operations which 
     would normally be conducted on a notice level. Id. at 31,602.
       The BLM stated that it would accept comments on the 
     proposed rule amendments until September 9, 1991, Id. at 
     31,602, but later extended the comment period to October 9, 
     1991 (56 Fed. Reg. 41,315 (1991)).
       On February 28, 1997, almost six years after the original 
     proposal, the BLM issued the final rule. 62 Fed. Reg. 9093 
     (1997). The final rule contained several substantive 
     differences from the proposed rule which are pertinent to 
     this case. Most notably, notice level and plan level 
     operators are each required by the final rule to post bonds 
     for 100 percent of the estimated reclamation costs. Id. at 
     9100, 9101.
       Additionally, the final rule requires notice and plan level 
     operators to employ an outside engineer to calculate and 
     certify the cost of reclamation of the disturbed areas, Id. 
     at 9100-01, provide bonds for all its existing mining 
     disturbances within ninety days (if not in compliance with 
     the rules), Id. at 9103, and meet water quality standards for 
     one year at the reclaimed site before the bond would be 
     released. Id. at 9102. The final rule imposed criminal 
     sanctions on persons who knowingly violate the regulations. 
     Id. at 9103.
       The BLM stated that the rule, as enacted, would not have a 
     significant impact on a substantial number of small entities. 
     Id. at 9099. The BLM defined ``small entity'' as ``an 
     individual, small firm, or partnership at arm's length from 
     control of any parent companies.'' Id. at 9099.
       The NWMA seeks summary judgment under the Administrative 
     Procedure Act, 5 U.S.C. Sec. Sec. 551, et seq. (1994) 
     (``APA'') on the basis that there was no notice in the 
     proposed rule of the 100 percent bond requirement, the 
     professional third party engineer requirement, the water 
     quality requirement, or of the potential criminal sanctions.
       Alternatively, the NWMA seeks summary judgment under the 
     Regulatory Flexibility Act (``RFA''), 5 U.S.C. Sec. Sec. 601, 
     et seq. (1994) (as amended by Pub. L. 104-121, Title II, 110 
     Stat. 864-67 (1996)) on the grounds that, when certifying 
     that the final rule would not have a

[[Page E1060]]

     significant economic impact on a substantial number of small 
     entities, the BLM did not use the Small Business 
     Administration's definition of ``small miner'' and did not 
     follow the appropriate procedure for adopting an alternate 
     definition as required by the RFA.
       The BLM generally denies the NWMA's allegations and itself 
     moves the Court for summary judgment, arguing that the NWMA 
     lacks standing to object. The BLM alleges that, since the 
     NWMA failed to participate in the rulemaking process by 
     filing any comments during the appropriate period, the NWMA 
     lacks standing to challenge the new rule under the APA. \2\ 
     The BLM also alleges that, because the NWMA is not itself a 
     small entity, it lacks standing to challenge the new rule 
     under the RFA.
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     \2\ The NWMA asserts that, in fact, it did submit comments, 
     but that its records of such have been lost in the 
     intervening five years. (Pl. Mem. At 12-13, Pl. Reply at 3-
     7.)
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                             II. Discussion

       The Court shall grant summary judgment ``if the pleadings, 
     depositions, answers to interrogatories, and admissions on 
     file, together with the affidavits, if any, show that there 
     is no genuine issue as to any material fact and that the 
     moving party is entitled to judgment as a matter of law.'' 
     Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 
     (1986).


                        A. Standing of the NWMA

       The BLM claims that the NWMA does not have standing to 
     object to its final rule under either the APA or the RFA 
     because it did not submit comments during the notice and 
     comment period. The NWMA asserts that it need not have 
     submitted comments because the BLM's original rule proposal 
     did not properly inform it that its interests were at stake. 
     The NWMA further asserts that, in any event, it has 
     associational standing as a representative of its members.
       The Plaintiff is correct. The nature of the NWMA's claims 
     under the APA is that there was insufficient notice of the 
     altered and additional aspects of the final rule given by the 
     BLM in its initial proposal. There is no way the NWMA could 
     have submitted comments regarding interests it was not 
     informed were at stake.
       The BLM also challenges the NWMA's assertion of 
     associational standing, contending that it does not apply to 
     rulemaking procedures. The BLM does not provide an 
     explanation of why this is so. In Warth v. Seldin, 422 U.S. 
     490 (1974), and Hunt v. Washington State Apple Advertising 
     Comm'n, 432 U.S. 333 (1977), the Supreme Court refined its 
     associational standing doctrine into a three-prong test.
       ``[A]n association has standing to bring suit on behalf of 
     its members when: (a) its members would otherwise have 
     standing to sue in their own right; (b) the interests it 
     seeks to protect are germane to the organization's purpose; 
     and (c) neither the claim asserted nor the relief requested 
     requires the participation of individual members in the 
     lawsuit.''--Hunt, 432 U.S. at 343.
       The Plaintiff here meets these elements and the Court finds 
     no basis to conclude that rulemaking should be regarded as 
     exempt from this test. Accordingly, the Court finds that the 
     NWMA has standing under the APA to object to the final rule 
     at issue here.
       The BLM also claims that the NWMA lacks standing under the 
     Regulatory Flexibility Act because the language of the RFA 
     extends standing to seek judicial review only to a ``small 
     entity.'' The RFA provides that ``a small entity that is 
     adversely affected or aggrieved by final agency action is 
     entitled to judicial review. . . .'' 5 U.S.C. Sec. 611(a)(1). 
     Section 601(6) of the RFA states, in relevant part, that the 
     term ``small entity'' shall have the same meaning as the term 
     ``small organization.'' Section 601(4) states, in relevant 
     part, that the term ``small organization'' means ``any not-
     for-profit enterprise which is independently owned and 
     operated and is not dominant in its field. . . .'' Here, the 
     BLM does not contest the NWMA's assertion that it is an 
     independently owned and operated, not-for-profit enterprise 
     which is not dominant in its field. (Pl. Mem. at 34-37.) 
     Therefore, the NWMA is a ``small entity'' as defined by 
     the RFA and has standing to object.\3\
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     \3\ It is probable that the NWMA would also have standing to 
     object under the RFA based on associational standing, 
     discussed supra.
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                  B. Plaintiff's Claims Under the APA

       The standard for judicial review of the BLM's actions here 
     is set forth in Section 706 of the APA. The court shall 
     ``hold unlawful and set aside agency action, findings, and 
     conclusions found to be . . . arbitrary, capricious, an abuse 
     of discretion, of otherwise not in accordance with the law.'' 
     5 U.S.C. Sec. 706(2)(A). The Court must show ``great 
     deference'' to the agency's interpretation of its own powers 
     and responsibilities. EPA v. National Crushed Stone Ass'n, 
     449 U.S. 64, 83 (1980) (citation omitted).
       The gist of the NWMA's numerous counts under the APA is 
     that the final rule enacted by the BLM is significantly 
     different from that originally proposed. The NWMA alleges 
     that the differences are great enough to constitute abuses of 
     the notice and comment requirement, 5 U.S.C. Sec. 553(b), and 
     the basis and purpose requirement, 5 U.S.C. Sec. 553(c) of 
     the APA. The final rule, however, ``need not match the rule 
     proposed [and] indeed must not if the record demands a 
     change.'' Kooritzky v. Reich, 17 F. 3d 1509, 1513 (D.C. Cir. 
     1994) (citations omitted). To do otherwise ``would lead to 
     the absurdity that . . . the agency can learn from the 
     comments on its proposals only at the peril of starting a new 
     round of commentary.'' International Harvester Co. v. 
     Ruckelshaus, 478 F. 2d 615, 632 n. 51 (D.C. Cir. 1973). The 
     test is whether the agency gave notice to interested parties 
     that a different rule might be enacted. Kooritzky, 17 F. 3d 
     at 1513. Adequate notice is given if the final rule is a 
     ``logical outgrowth'' of the proposed rule. Fertilizer Inst. 
     v. EPA, 935 F. 2d 1303, 1311 (D.C. Cir. 1991). Therefore, the 
     pertinent question to be asked in this case is whether the 
     BLM's final rule is a logical outgrowth of the proposed rule.
       The determination of what rule is a logical outgrowth of 
     another can be a difficult task and require detailed 
     examination of the administrative record. For instance, the 
     NWMA alleges that the minimum bond amounts required by the 
     final rule cannot be a logical outgrowth of the maximum 
     amounts contemplated by the proposed rule. At first blush, 
     this might seem to be one of the NWMA's strongest arguments. 
     An examination of the administrative record reveals that the 
     rule proposal does, indeed, state that bond amounts for plan 
     level operations ``would be capped at $1,000 per acre for 
     exploration activities and $2,000 for mining activities.'' 56 
     Fed. Reg. 31,603. The proposal goes on, however, to state 
     that ``[c]omments are specifically requested on the adequacy 
     of these definitions.''Id.
       The request for commentary on the definitions reasonably 
     could be construed to include commentary on the adequacy of 
     the dollar amount, which, in turn, reasonably could be found 
     to constitute adequate notice that the rule might be changed. 
     It is uncertain whether additional examination of comments 
     received would be indicative of the adequacy of the notice. 
     It is also uncertain whether testimony at trial might prove 
     dispositive of the issue. In other words, the claim is not 
     readily applies to the summary judgment standard, i.e., that 
     no reasonable factfinder could find for the BLM in this 
     matter.
       The Court does not need to conduct such as exhaustive 
     examination of the administrative record to reach the merits 
     of the NWMA's claims under the APA because of the disposition 
     of their claim under the RFA.


       C. Plaintiff's Claim Under the Regulatory Flexibility Act

       The NWMA's claim under the RFA is that the BLM did not 
     follow the legal procedure required by the RFA when it issued 
     the final rule.
       The RFA requires administrative agencies to consider the 
     effect of their actions on small entities, including small 
     businesses, small non-profit enterprises, and small local 
     governments. See 5 U.S.C. Sec. Sec. 601, et. seq.; 
     Southwestern Pa. Growth Alliance v. Browner, 121 F.3d 106, 
     118 (3d Cir. 1997). See also S. Rep. No. 96-878, at 1-6 
     (1980). When an agency issues a rulemaking proposal, the RFA 
     requires the agency to ``prepare and make available for 
     public comment an initial regulatory flexibility analysis'' 
     which will ``describe the impact of the proposed rule on 
     small entities.'' 5 U.S.C. Sec. 604(a).
       Rather than prepare initial and final regulatory 
     flexibility analyses, the BLM chose to use the exception 
     allowed by Section 605 of the RFA. Section 605 provides:
       Sections 603 and 604 of this title shall not apply to any 
     proposed or final rule if the head of the agency certifies 
     that the rule will not, if promulgated, have a significant 
     economic impact on a substantial number of small entities. If 
     the head of the agency makes a certification under the 
     preceding sentence, the agency shall publish such 
     certification in the Federal Register at the time of 
     publication of general notice of proposed rulemaking for the 
     rule or at the time of publication of the final rule, along 
     with a statement providing the factual basis for such 
     certification. The Agency shall provide such certification 
     and statement to the Chief Counsel for Advocacy of the Small 
     Business Administration.--5 U.S.C. Sec. 605(b).
       In a section of the final rule publication entitled 
     ``Compliance With Regulatory Flexibility Act,'' the BLM 
     stated that the final rule ``will not have a significant 
     econimic impact on a substantial number of small entities.'' 
     62 Fed. Reg. 9099. The BLM stated that, for the purposes of 
     this certification under the RFA, the term ``small entity'' 
     is defined as ``an individual, small firm, or partnership at 
     arm's length from the control of any parent companies.''. Id. 
     The BLM set forth a short factual basis for the 
     certification. Id.
       The nature of NWMA's challenge is that the BLM did not use 
     the correct definition of ``small entity'' (specifically, a 
     small miner) when it made the ``no significant impact'' 
     certification.
       The RFA requires agencies to use the Small Business 
     Administration's definition of small entity. Section 601 of 
     the RFA sets forth, in relevant part, ``[f]or the purposes of 
     this chapter . . . the term `small entity' shall have the 
     same meaning as the term `small business' . . . . '' 5 U.S.C. 
     Sec. 601(6). The term ``small business'' has the same meaning 
     as the term ``small business concern'' under section 3 of the 
     Small Business Act, 15 U.S.C. Sec. 632 (1994). 5 U.S.C. 
     Sec. 601(3).
       An examination of the Small Business Act reveals that the 
     SBA may ``specify detailed definitions or standards by which 
     a business concern may be determined to be a small business 
     concern for the purposes of [the Act] or any other Act.'' 15 
     U.S.C.

[[Page E1061]]

     Sec. 632(a)(2)(A). The SBA publishes these small business 
     definitions in 13 C.F.R. Sec. 121.201. Division B of section 
     121.201 provides, in pertinent part, that mining concerns 
     must have 500 or fewer employees to be considered ``small.'' 
     Id. Therefore, the standard for ``small miner'' which the BLM 
     must use when performing an Initial or Final Regulatory 
     Flexibility Analysis or when certifying ``no significant 
     impact'' is a 500 or fewer employee standard. By using a 
     definition other than the SBA's, the BLM violated the 
     procedures of law mandated by the statute.
       The BLM, for its part, argues that it used a subsequent 
     Congressional definition of ``small miner'' used in recent 
     legislation.\4\ This argument is unconvincing in light of the 
     clearly mandated procedure of the RFA. The definitions 
     section of the RFA uses phrases such as ```small entity'' 
     shall have the same meaning . . . '' and ```small business'' 
     has the same meaning . . . ''. 5 U.S.C. Sec. 601 (emphasis 
     added). Words such as these doe not leave room for alternate 
     interpretations by the agency. The ultimate expression of 
     legislative intent is, of course, and unambiguously worded 
     statute.
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     \4\Specifically, the Department of the Interior and Related 
     Agencies Appropriations Act for Fiscal Year 1993, 106 Stat. 
     1374, 1378-79 (1992). (Def. mem. at 15-26; Def. Reply at 14-
     15).
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       Insofar as the BLM's certification (i.e., that the final 
     rule would have no significant impact on a substantial number 
     of small entities) was without observance of procedure 
     required by law, the NWMA, as complaining party, is entitled 
     to relief, and this Court, therefore, grants NWMA's motion 
     for summary judgment on these grounds.


                 D. Relief to be Granted Under the RFA

       Section 611 of the RFA, entitled Judicial Review, provides, 
     in pertinent part:
       In granting any relief in an action under this section, the 
     court shall order the agency to take corrective action 
     consistent with this chapter . . . including, but not limited 
     to, remanding the rule to the agency, and deferring the 
     enforcement of the rule against small entities unless the 
     court finds that continued enforcement of the rule is in the 
     public interest.
     5 U.S.C. Sec. 611(4)(A)-(B). Consequently, the issue is what 
     the public interest is here.
       The BLM, arguing for continued enforcement, warns of 
     potential publicly funded restoration efforts and cites a 
     ten-year old report showing an estimated restoration cost of 
     $284 million for a parcel of federal land that had been left 
     unreclaimed. See generally GAO/RCED-88-123BR (April 1998).
       The Court, however, is unconvinced by such anecdotal 
     evidence. In fact, the Court does not find that much would 
     change should enforcement be discontinued. Large, open-pit 
     mines are already subject to discretionary bond requirements 
     by the BLM as plan level operations. 43 C.F.R. Sec. 3909.1-
     9(b). Moreover, the BLM admits that it already has in 
     place a policy which requires 100 percent bonding for all 
     mining operations which use cyanide or other dangerous 
     leachates (Def. Mem. at 6,8; Def. Reply at 8.) In other 
     words, to protect the environment against the most 
     potentially dangerous mining operations, the BLM need only 
     exercise its existing powers between a remand and its next 
     final rule promulgation.
       Moreover, the new rule's requirements concerning the amount 
     of regulation on the smaller notice level mining operations, 
     the dollar amounts the BLM can require for all bonds, and the 
     additional procedural expenses incurred by miners when 
     obtaining the bonds, appear to have a large impact on the 
     small miner. Effects on small businesses and industry-wide 
     changes in regulatory expenses, however, are precisely what 
     the procedural safeguards of the RFA and the APA are set in 
     place to address. A claim that the public interest requires 
     an exception to the RFA and APA because of the very interests 
     they protect requires a better showing of threatened societal 
     harm than the BLM has produced here.
       Finally, the BLM states that, upon remand, any new rule 
     promulgation will be delayed because Congress has prohibited 
     the BLM from publishing new hardrock mining rule proposals 
     until November 15, 1998.\5\ See Department of the Interior 
     and Related Agencies Appropriations Act for Fiscal Year 1998, 
     Pub. L. No. 105-83 Sec. 339 (1997). While true, the BLM 
     itself delayed enacting a new rule for roughly nine years 
     after the issuance of the GAO report and five and one-half 
     years after its own rule proposal. The BLM has not explained 
     this delay in light of its alleged urgency. The absence of 
     alacrity by the BLM in this matter convinces the Court that 
     another brief delay will not be contrary to the public 
     interest.
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     \5\ The BLM did not address this argument in its briefs, nor 
     did it file a post-hearing brief. It mentioned this argument 
     briefly during oral argument only.
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                            III. Conclusion

       While recognizing the public interest in preserving the 
     environment, the Court also recognizes the public interest in 
     preserving the rights of parties which are affected by 
     government regulation to be adequately informed when their 
     interests are at stake and to participate in the regulatory 
     process as directed by Congress. For this reason and for the 
     reasons stated in this memorandum, the Court remands the 
     final rule to the BLM for procedures consistent with this 
     opinion. Accordingly, the Plaintiff's motion for summary 
     judgment is denied. An appropriate Order accompanies this 
     Memorandum.
                                                    June L. Green,
                               United States District Court Judge.
     Date: May 13, 1998.