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Mr. RAHALL. Before we hear from our final panelist, Mr. Liver more, the subcommittee will recess for 10 minutes so we can answer this roll call vote on the Floor of the House.

Thank you.

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AFTER RECESS
Mr. RAHALL. The subcommittee will resume its sitting, and we
are on the fourth panelist, Mr. Putnam Livermore from Public Re
source Associates, San Francisco.

Mr. Livermore, welcome once again to the subcommittee.
Mr. LIVERMORE. Thank you, Mr. Chairman.

My name is Putnam Livermore. I am an attorney practicing in the field of natural resource law, particularly hard rock mining, geothermal energy, and public lands issues, and I have also served as attorney for organizations involved with the protection of sensi

: tive natural areas, specifically the Nature Conservancy and the Trust for Public Land.

Today, I am appearing as president of Public Resource Associates, a small group studying public land issues. This group includes my colleague, Elvis Starr, who is seated over there. We have been doing research and exchanging views with conservationists, mining officials, and others on acceptable consensus changes in the Mining Law of 1872.

Mr. Chairman, the central controversy about changing that law is rooted in some environmentalists' determination, on the one hand, to protect sensitive areas and the industry's determination, on the other hand, to have access to all possible public lands for exploration

We wish to suggest provisions that will meet these demands in a way that will provide both sides with improvements over their cur rent situations. This would be a win/ win situation. We have heard here today from this panel and others that, while they think that title I is acceptable and can be lived with, title II still has problems for the mining industry.

So we think that H.Å. 918 does not so far achieve this consensus Despite some good features, it is still

somewhat weighted against the mining industry, we believe in our group. But first we would like to point out some of the bill's positive features. They are as follows:

No. 1, retention of the principle of self-initiation and rejection of a leasing system to govern exploration and claims staking for hard rock minerals on the public lands.

No. 2, elimination of the surface patents so that the surface re mains in public ownership after mining. This is of great importance to the environmental community. We recommend a provision for a patent based on a discovery limited to minerals only.

No. 3, creation of a single type of claim of 40 acres tied to land surveys while, in fairness, preserving the original configuration and rights of existing claims.

No. 4, having the new law supersede State laws, although we urge that State reclamation laws not be superseded. No. 5, elimination of the confusing concepts of "pedis possessio”

. and "discovery,” it should be noted, relating to the pre-patent

period—that is what our group is talking about as requirements to hold a claim during the exploration period and the substitution of the secure type of tenure for claim holders.

Another important provision, No. 6, we think a good provision of the law, is a notice approach for initial test drilling—this is section 201(b)(2)(b)rather than requiring an approved plan of operations at that stage. After all, Mr. Chairman, the essence of self-initiation is more than simply being allowed to put stakes in the ground.

No. 7, inclusion of exploration, reclamation, and environmental studies in the expanded definition of assessment work. It will help reclaim and improve past mining areas and encourage direct environmental improvement by exploration and mining companies.

We have listed in our proposed statement several areas in the bill that we believe could be improved, such as the provision for the definition of the actual right to mine, the provision for additional withdrawals contained in the bill, the civil suits provision, the changing of the undue degradation standard, but there is not enough time today in this oral statement to go into those, although they are contained in our written statement, Mr. Chairman.

We would like to concentrate on the admittedly most difficult issue of land use planning. There are several land use planning principles that we think must be considered before any land use provision is included in this or any bill.

First, trying to plan directly for or against mining on all multiple use lands is a futile exercise since the location of the hard rock mineral resource is, unlike forage, wildlife, water, and recreation resources, unknown while you are planning. Rather, the approach should be to identify surface resources that are important or sensitive enough so that the agency plans protect them from conflicting land uses, including mining. Areas of critical environmental concern-ACEC's—may be the appropriate planning designation or tool.

No. 2, certainty: If the explorationist or developer knows the restrictions up front when going into a planned area, the risks of the agency's new “right to say no" are known and can be dealt with.

No. 3, the land use planning “right to say no" cannot just be an expansion of the withdrawal system. If a mining use, whether exploration or even development, can be undertaken consistent with the mining restrictions applicable to the ACEC, for example, it must be allowed. Mining frequently is the highest and best use of that very small amount of land that contains a commercial ore body. Thus, authorization to say no to mining on sensitive lands must not be seen as allowing the ratcheting of whole new categories of land into designation of "sensitive areas.'

Especially in light of other provisions of the bill, a review of administrative withdrawals should open lands that are now withdrawn for fear of surface patenting or for lack of the right to say no to mining on the sensitive portion of these lands.

No. 4, and last, the transition to such a system must be fair. We suggest the bill provide that in any planning unit the new sensitive lands, or ACEC designations, not be effective to change locators' rights unless the administrative withdrawal review is completed and effective.

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Land use planning should be used to introduce flexibility into the hard rock situation so that all lands are not simply totally with drawn or totally open.

In closing, we would like to offer for the record three documents that we have commissioned that is, our group, Public Resource Associates. One is a memo on problems with prediscovery tenure under the existing system by Kenneth Lee; second, a study of pa tential gross revenues from hard rock royalties by John Wells, and third, an analysis of a number of foreign countries' mining systems in comparison to that of the United States by John Lacey. This s going to be revised, Mr. Chairman, and I think it will be of interest to you and the other Congressmen because this issue has been raised already today and at prior hearings where I think there is some misunderstanding about what foreign laws are, and also comment on what they are is oversimplified by just expressing opinions as to whether there is a royalty or not a royalty and not realizing that it is far more complicated than that and involves not just com paring whether there is a royalty or not but whether there is sev. erance tax, whether there is a national or provincial tax, what the income tax provisions are of foreign laws. would be happy to submit it to you in addition to the one that I

So we are in the process of drawing up such a treatise, and we mentioned.

I would also like to invite your renewed attention to an essay called, “Self-Initiation: The hard rock miner's right," by Thomas S Barrett, who works with the Public Resource Associates, which was entered in the record of your 1987 oversight hearing.

Finally, Mr. Chairman, we would be most happy to work with the committee and your staff in clarifying any of these studies of putting into appropriate legislative language our suggestions and to be helpful in any other way we can.

Thank you, Mr. Chairman.
[Prepared statement of Mr. Livermore, with attachment, follows:)

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mining, geothermal energy and other public lands issues.

I have

also served on the national boards of, and as

an attorney for,

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Associates, a small group that, beginning some years prior to your Mining Law oversight hearing in June 1987, and continuing, has been doing and commissioning research, and exchanging views with miners, environmentalists, federal and state government officials and

others, in the hope of developing consensus on desirable and/or acceptable changes in the Mining Law of 1872. We have made

substantial progress.

Mr. Chairman, the central controversy about changing that Law is rooted in some environmentalists' determination, on one hand, to protect not only environmentally critical natural areas but as much of the rest of the public lands as possible and the industry's necessity, on the other hand, to have reasonable access to all possible public lands for exploration and their use for production of metals vital to the industry's survival and to the nation's economy and security. What we believe your committee and the

Congress want is a Bíll that will meet the demands of both sides in

a way that will provide both sides with improvements over their

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current situations, without unnecessarily or unfairly penalizing either side. It can be done--and in a way that both sides will be

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better served than under the present Law. This would be a win-win

situation.

But H.R. 918, I regret to say, does not so far achieve

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it. Despite some very good features, it comes out weighted against one side, namely, the mining industry, instead of being the

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balanced win-win vehicle it might be.

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Wanting to be constructive, I will undertake in this statement

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to explain that conclusion and to make suggestions for changes that could achieve the fairness and balance we believe you are basically seeking, Mr. Chairman, that are sorely needed in the national

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interest, and without which our group cannot support the Bill.

First, though, I would like to point very succinctly to some of the Bill's positive features, which should be kept in any new

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(1)

Retention of

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self-initiation, and

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rejection of a leasing system, to govern exploration and clainstaking for hardrock minerals on the public lands. This is of fundamental importance to a viable hardrock mining industry for

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(2) Elimination of the surface patent, so that the surface would remain in public ownership after mining. This is of great importance to the environmental community.

recommend provision for a patent, based on a discovery, limited to minerals

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only.

(3) creation of a single type of claim, of forty acres, tied

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