Tuesday, June 7, 2011

Protecting the Chetco River—Where are we now?

In 2008, a Washington based mining company submitted plans to mine almost half the length of the National Wild and Scenic Chetco River, including about 6 miles in the Kalmiopsis Wilderness.  The threat of mining on this beautiful world class salmon and steelhead stream remains strong—especially with the escalating price of gold (from ~ $800 to ~ $1,500/ounce).

In 2010, American Rivers named the Chetco one of America's Most Endangered Rivers.  In 2011, the Pew Environment Group released the report "Ten Treasures at Stake."  One of the ten incomparable areas at risk from mining in the report includes the National Wild and Scenic Chetco River and nearby Rough and Ready Creek.

However, there are efforts underway to protect the Chetco and its nationally outstanding waters:

The Chetco River Protection Act — The Chetco River Protection Act (CRPA) is based on recommendations the Siskiyou National Forest made in the 1994 Chetco Wild and Scenic River Management Plan, after public comment under the National Environmental Policy Act.  It includes the correction of Wild and Scenic River classifications on about 3.5 miles and the withdrawal of about 17 miles from the 1872 Mining Law. With the withdrawal of the 17 miles, the full length length of the Chetco (on National Forest lands) would be formally withdrawn from the Mining Law.  Withdrawal, prevents new mining claims from being located and requires owners of existing claims demonstrate that they have a valid right to mine under the 1872 Mining Law.

Until Congress significantly reforms the 1872 Mining Law, "withdrawal" is the best available way to protect nationally outstanding rivers and landscapes like the Grand Canyon and the National Wild and Scenic Chetco River.  The CRPA was first introduced in the House of Representatives by Congressman Peter DeFazio in 2008. It was reintroduced in the House and introduced in the Senate (Senator Ron Wyden and Senator Jeff Merkley) in 2010 and re-introduced in the House and Senate this year.

The USDA Forest Service's proposed mineral withdrawal — In July 2010, the USDA Forest Service announced that it would submit an application to the Bureau of Land Management to withdraw the 17 miles of the Chetco River subject to the CRPA from the 1872 Mining Law.  The purpose of the interim administrative mineral withdrawal is to preserve the status quo on the river while congress considers the legislation. When announced, it was estimated that the interim withdrawal would take two to three months.  Expectations now (almost 10 months later) are that the Federal Register Notice announcing the interim withdrawal will be published relatively soon (June or July 2011).  The notice trigger an opportunity for the public to comment on the proposed withdrawal in aid of legislation and a public meeting.  Please continue to check Save Our Chetco for updates and comment opportunities.

The right to mine on existing claims is preserved under withdrawals - Miner's will howl that their rights are being taken when the proposed Chetco River mineral withdrawal is announced.  However, under the law, existing claim holders' right to mine will be fully preserved.  Since most of the Chetco River outside the Kalmiopsis Wilderness is covered with existing claims, the effect of the proposed withdrawal will be simply that existing claimants will now have to demonstrate they actually have 1872 Mining Law rights.

Under antiquate law, all "valuable" mineral deposits" on public lands open to the Mining Law are given away for free.  This is bad enough, but what is ignored (unless an area is withdrawn) is the law's use of "valuable" to describe mineral deposits.  It is the discovery of a "valuable" mineral deposit that triggers a mining claimant's right to initiate mining operations on public land.

Unfortunately, Forest Service policy "assumes" Mining Law rights exist, unless an area is withdrawn.  In 1994, the Siskiyou National Forest, despite recommendations, chose not to withdraw the Chetco River outside the Wilderness because they believed there was little mineral value and little chance the area would be mined.  They were incorrect on the latter.  Let's hope they're correct on the former.

See Understanding the 1872 Mining Law and the Bureau of Land Management on Land Withdrawals.  See also BLM's explanation of "valid existing rights" in areas withdrawn from the 1872 Mining Law (scroll to bottom).

The proposals to Mine the Chetco River in the Kalmiopsis Wilderness - In addition to the mining claims on the middle section of the Chetco River—from Boulder Creek downstream to the Forest Boundary (area subject to the CRPA)—the mining company holds three mining claims on the Wild segment of the Chetco River in the Kalmiopsis Wilderness. This part of the river was withdrawn from the 1872 Mining Law in 1984 under the 1964 Wilderness Act and technically again in 1988, under the Oregon Omnibus Wild and Scenic Rivers Act.

The three claims were established in 1983. In withdrawn areas, where there are existing claims, mining can occur only after it's been determined that there's been a discovery of a valuable mineral deposit on or before the date of withdrawal—in other words, it has to be determined that the holder of an existing claim has a "valid right" to mine under the 1872 Mining Law.

Two of the claims (Gold 9 and 10) have no "valid existing rights determination" (VER).  Until there is such a determination, NO mining activities can occur on these two claims.  The mining company claims they are valid.  This declaration is premature and empty.  The reality is—in light of the State of Oregon's implementation of a provision established for waters in Wilderness Areas in 1972 (under the State's authority under the Clean Water Act)—Gold 9 and 10 are highly unlikely to be valid for the following reasons:
  • The claims have to have been valid in 1984 (when gold was around $360/ounce not $1,500/ounce).  
  • The claims are very remote.  There's not even trail access, and the use of motorized methods of travel to them was never previously allowed and is therefore inconsistent with the Wilderness Act.
  • The limitations placed on mining methods by the State of Oregon's Clean Water Act rule, which doesn't allow activities that increase turbidity of the waters in the Wilderness.  Since the clarity of the Chetco's waters are legendary (approaching that of distilled water), it's unlikely that motorized suction dredge mining can comply with the rule (see links to information on the rule below).
One of the three remaining mining claims in the Kalmiopsis Wilderness (Gold 11) was found to have valid existing rights in 1986.  However, the VER that established the right to mine failed to take into consideration the limitations placed on mining methods in the Wilderness by the State of Oregon's 1972 Clean Water Act rule for Wilderness Areas.

The 1986 VER was also flawed because it did not establish that the claim beyond the discovery point was "mineral in character."  If not mineral in character, the size of Gold 11 could be significantly reduced, making it even less likely to be able to be mined economically—using the value of gold at $360/ounce, a mining method that doesn't increase turbidity and non-motorized access across miles of rugged wilderness.

Mining activities in the Kalmiopsis Wilderness also requires an approved mining plan of operations.  The Rogue River-Siskiyou National Forest has suspended the National Environmental Policy Act process for the Gold 11 Plan of Operations, until the mining claimant can demonstrate the proposal complies with the Clean Water Act and the State of Oregon's rule.

See "Oregon Rule and Clean Water Act put Kalmiopsis Wilderness mining plans on hold"

The mining company makes lots of blustery claims about mining in the Chetco in the Wilderness—flying helicopters low over the wild river canyon and talking about mining mining benches or gravel bar—but for the current moment at least, they have no right to mine on any of the three Chetco Rivers claims in the Kalmiopsis, but stay tuned as the situation evolves.

If Wilderness users notice any mining activity on the mainstem Chetco in the Wilderness, including the landing of helicopters or sling dropping equipment with helicopters, they should report this to the District Ranger at the Gold Beach Forest Service Office - 541-247-3600 - and if possible document it with photos or video.

See the following Forest Service and State of Oregon documents for more information about the proposed mining in the Kalmiopsis Wilderness, the Clean Water Act and the State of Oregon's Administrative Rule for Wilderness Areas: