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(a) a provision applying the revised Mining Lav to
"acquired lands," so that there will one systa for
hardrock mining nationwide; and
(b) A set of "findings" that could serve two important
purposes: they could state Congress's recognition that
this is a nining bill, intended to establish a systes
that not only authorizes but encourages mining, and they
could state the committee's goals, against which other
provisions of the bill can be measured. Such a set of
findings would include recognition of certain facts and
principles which I shall suggest in an attachment to this

Now, to return to the land use planning issue that I mentioned
earlier. This committee over the years has heard from the sining
community on the need to improve access to public lands for mining.
The committee has also heard from the environnental community on
inadequacy of Federal land management to

protect environmentally sensitive areas. In many ways this is the debate that led to FLPMA in 1976. Our own research and discussions have explored this debate in the context of land use planning, looking for a win-win situation where access to mining can be increased, while at the same time affording additional protections to certain sensitive areas. Progress has been made, but we believe this issue deserves the further attention of this committee. Thera are several principles that we think must be considered.

First, trying to plan directly for or against mining on all


multiple use lands is a futile exercise, since the location of the

hardrock mineral resource is, unlike forage, wildlife, water and

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unreasonable extreme case analysis. Discussing the impacts of development of "suspected" deposits is a hypothetical exercise,

misleading at best. Rather, the approach should be to identify surface resources that are important or sensitive enough in that

planning district that the agency plans to protect them from conflicting land uses, including mining. This is why "areas of

critical environmental concern" (ACEC's) may be the appropriate planning designation, or tool: designation is discretionary; the areas are controlled but not closed to multiple uses, and the restrictions can and should be applied to other commercial or impacting land uses, not just mining.

Second, the next key principle is 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.

What is unacceptable is

introducing the "right to say no" at the time of approval of the plan of operations, after investment in exploration, ore-body

delineation and mine design.

Section 201(b) (5) of the Bill is

unacceptable for this reason.

If the "right to say no" is not in

the land use plan, adopted in a public process with respect to resources in certain areas in the planning unit, it should not be

introduced at the time of approval of the plan of operations. The



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only way such a provision would be acceptable is if it clearly provided for compensation to the miner for the value of the property on which mining is now going to be denied for a reason not







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known up front in the land use plan.

Third, the land use planning "right to say no" cannot just be

expansion of the withdrawal system. If mining use (exploration, even development) can be undertaken consistent with the management restrictions applicable to the ACEC, it must be allowed. The "right to say no" that would exist on these



designated "sensitive lands" should not be a compulsion to say no, if development could occur consistent with the land use plan and

the constraints necessary to manage the ACEC lands.

Further, if

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exploration could be undertaken consistent with ACEC management, the results of that exploration could be taken into account in a land use plan amendment. Both of these types of flexibility would be preferable to the current withdrawal system.



the Bill must recognize

that maximum

access is


essential to the health of the industry. If the lands are not sensitive, 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

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be seen as a restructuring of public land uses to "ratchet" whole

new categories of land into designation as



Especially in light of other provisions of the Bill, an aggressive 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 "sensitive" lands.

when these processes

(planning restrictions and withdrawal review) are complete, it should be possible to have greater access for responsible mineral exploration and also broader protection of specific nonmineral

resources--a win-win situation.

Fifth, the transition to such a system must be fair.


restrictions should not be imposed without lifting old unnecessary restrictions, 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 at the same time. After all,

under existing law all lands that Congress and the land managers

believe should not be subject to the "right to mine" are either withdrawn or under a protective management standard (such as "nonimpairment" in wilderness study areas). In addition, resources of special value (endangered and threatened species) are protected under separate legislation of general applicability.

Land use planning should be used to introduce flexibility into

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and provide certainty, so that a plan of operations is not subject to denial, or attempts to reject it, for land management reasons that were not stated as an existing basis for rejection when the investment in discovering and developing the ore body was made.

In closing, I should like to have entered in the printed

record three documents commissioned by and for Public Resource PUBLIC RESOURCE ASSOCIATES


(1) a memo on problems with pre-discovery tenure under the existing system, by Kenneth Lee;

(2) study of potential gross revenues from hardrock royalties, by John Wells; and

(3) an analysis of a number of foreign countries' mining systems in comparison to that of the United States, by John Lacy.

I also invite your renewed attention to an essay called Selts

Initiation: The Hardrock Miner's Right, by Thomas S. Barrett, 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 or putting into appropriate legislative language our suggestions--and to be helpful in any

other way we can.

Thank you, Mr. Chairman.

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