Maine’s Pristine Public Lands In Statutory Limbo: Large Scale Metallic Mining On Public Lands Presently Authorized Under Relaxed Environmental Law

Mining, including Metallic Mining, has been allowed by Statute  in Maine back to 1977 under Title 12, the statute that protects and conserves public lands.  Referred to as the “Mining on Public Lands Statute”,  it designates  “Director of Survey ( Sate Geologist Dr. Robert Marvinney), not DEP, as the regulatory authority for establishing rules and for  writing ,reviewing and approving permits pursuant to those rules.  The “Mining on Public Lands Statute” under Title 12, was last substantively revised in 1985 when Maine was going through its last turbulent push for metallic mining in Maine.  In that same legislative session, a separate one line statute clearly addressed to all other lands  directed DEP and LURC ( Now LUPC) to jointly write rules for metallic mining.  After a 6 year hulabaloo, mostly arising from then DEP Commissioners refusal to accept mining applications without implementing rules and a long delay in getting to that, the “19991 rules” emerged and are still the state’s official mining rules.

Due to a technical error in drafting the new mining staute that replaced that 1985 one liner,  the 2011 statute (PL 2011 C. 653) became law in July 2016 without its implementing regulations which were twice rejected by the State legislature.  The sweeping changes in environmental law  specifically to accommodate metallic mining  therefore also apply  to metallic mining on  public lands.  No rules or procedures have ever been developed for exploration, claims and mining on public lands and the Department of Agriculture Conservation and Forestry’s (JSCACF)public guidance on the Mining On Public Lands Statute makes no reference whatsoever to the mining statute or the DEP/LUPC permitting process directed under Article 9 of that statute.   The current posting dates to September 2013.

According to one long term member of the JSCACF there has never been any discussion of, or reference to, the possible effects on Public Lands of the separate and lower environmental standards set by Title 38 changes to environmental law.  Dr. Marvinney, “Director of Survey” seems to believe that the twice rejected DEP rules apply to public lands as well.

In his testimony September 15th 2016 before the BEP as the only witness in support of the draft mining rules, Dr.Marvinney’s testimony on his authority under the “Mining on Public Lands” statute, seems to conflict with the plain reading of the staute.  Dr. Marvinney asserts that his authority is only for granting or not granting a lease to mine on public lands and that if the lease is granted that lessee would then apply to DEP under the Article 9 of Pl 2011 C.653.  Dr. Marvinney did, however, acknowledge that something like a large scale mine or a large open pit would trigger the requirement for a 2/3  majority approval in both houses of the legislature.

Daniel Tratakoff, Legislative Analyst for JSCENR,  the Committee who created the Metallic Mining Statute, has written to Bowker Associates  that JSCENR has been aware of the contradictions and conflicts between the two different mining statutes  and wrestled with it at length without any clarifying statements or changes to their Mining Law PL 2011 c. 653.

On closer re examination of the legislative history of the Metallic Mining Statute PL 2011 C. 653, it is clear that the concept draft envisioned that the article 9 rules ( then not fleshed out) would provide unified review under DEP/BEP for all metallic mining.  It appears that this was not actually effectuated and that DEP does not have any statutory authority for rule making or permitting under the “Mining on Public Lands” statute.  Perhaps that was intended in the phrase “Mining Applications reviewed uder this Article do not require permitting” but  the clarifying language needed to extend that to Public Lands as well was not part of the overall law ( PL 2011 C. 653) even though other changes to Title 12 were made as part of PL2011 C.653.

Despite overwhelming and committed public opposition, JSCENR has made no changes to its poorly informed badly written law.  DEP has initiated new rule making which was to be briefed on September 7th at 1pm .  That briefing did not occur. BEP has voted unanimously to accept the rule for review  and public comment on it is now open with a public haring secluded  September 15th at 9 AM.  The new rule simply omits all  specific reference to public lands removing specific prohibitions on mining on or near public lands which had initially been in the rule as first submitted to BEP.  New language has been added, however, prohibiting  the “extraction of ore”  on or under coastal waters, great ponds, and  upstream of streams or brooks used for public drinking supply .  If Alder Pond  exceeds which has an active exploration permit has a mineralized vaguely explored deposit under the lake which was deemed not economical for exploration in prior investigation.   Alder Pond was addressed in Dr. Marvinney’s September 15th testimony before the BEP and as a submerged land falls under Title 12, 549 the mining on public lands statute. Apparently the prohibition on ore extractions in the pending Chapter 200 rule does not include Alder Pond.  The “Mining on Public Lands Statute” specifically authorizes the draining or diversion of lakes and  streams “to facilitate mining” thus raising the specter of  draining lakes for use as tailings impoundments or mine waste dumps  or for submarine deposition of Acid Rock Generating waste in lakes or rivers. There is no scientific evidence of “no harm” from such practices nor is there evidence that Acid Generation is permanently suppressed.

Bowker Associates therefore wrote and submitted  following summary to JSCENR, JSCACF, DEP, BEPand “Director of Survey ” Dr. Marvinney  urging them to clarify the present status of existing law as to metallic mining on public lands .  To date we have received no response or acknowledgment.

At the September 7th JSCENR, in an exchange with Deputy Commissioner Loyzim, the JSCENR and DEP acknowledged that the Attorney Generals advice as to jurisdiction for mining rules on public lands comports fully with our analysis.  As this is the last meeting of the presently constituted JSCENR no specific action was taken beyond acknowledging the resolution lies with JSCACF.

There are no transcripts of JSCENR work sessions or meetings but we understand videographer Eric A Tuttle did film the entre segment on mining and we hope to be able to offer you a link to that video on the next few days.

 

Bottom line.  No change in stasus of public lands.

 

Dear Members of the JSCENR, JSCACF, Commissioner Mercer, Commissioner Livesay , Dr. Marvinney and Ms. Bertocci & Members of the BEP

I hope the following analysis will be helpful in addressing the public’s and the legislature’s concerns about metallic mining on public lands. Bowker Associates did not retain counsel in forming this summary nor do we think that is necessary.  It seems very clear that as to rule making DEP/BEP have no authority to write rules for metallic mining on public lands.  That authority rests with Dr. Marvinney as “Director of the Survey“.

The language of the original concept draft was that ALL metallic mining review and approval would fall under DEP through Article 9 however the mining proponent influence was so focused  on JD Irvings interests at Bald Mountain that it appears this was not actually effected with respect to public lands in the final as enacted PL 2011 C.653.

Under the separately titled “Statute for Mining on Public Lands” there is a duty to ascertain that the planned use is “consistent with the trust” and the designated land use of the public lands and its surroundings but permit application and review is under the Director of Survey, not DEP as the law presently reads.

Of course all the Title 38 ( environmental law changes) of PL 2011 C.653 also apply to public lands and of course DEP has authority to enforce those laws however all actually remove  mining so there is nothing to oversee or enforce.

The provisions of the changed Natural Resource Protection Law are in direct conflict with the provisions of Title 12 in that Public Lands Law sets the a very clear dual mandate of “no environmental harm” and  the mandate of consistency with the established “trust” and established land use.  Natural Resources Law modifications specifically states that no  better use than mining exists.

 JSCENR legislative analyst  Dan Tartakoff has already acknowledged that  there are recognized and as yet unresolved ambiguities and inconsistencies  as between the mandate of Article 9 and the separate mandate of the “Mining on Public Lands Statute” and that JSCENR recognized that these ambiguities could only  be resolved in consultation with JSCACF  Mr. Tartakoff in  his written summary to us  said the JSCENR felt there was nothing they could do to resolve this in the timeframe  they had for action last session.

   It is in JSCENR’s power to address that error now by correcting PL 2011 c 653 to recognize explicitly  that the changes do not apply to metallic mining on public lands or to change Title 12 to clearly stipulate that article 9 applies to all metallic mining in public lands. .  Bowker Associates is hereby  making that recommendation as an emergency measure.  That should be taken up as part of the JSCENR briefing on the re initiation of rules and some form of public announcement should be made to clarify for the public what the present legal status is of metallic mining on public lands  and that any public concerns or objections to this status can only be addressed statutorily via change to PL 2011 c 653 Title 38  changes and/ or to the long standing policy of allowing metallic mining on public lands along with many other forms of nonmetallic mining.

   There is no question that the public at  large , the legislature and environmental advocates,   thanks to the work of Lew Kingsbury , will be focused mainly on outrage at the very idea of any metallic mining on public lands other than recreational and artisanal ( e.g. recreational gold panning).  There is no question that this gravely offends public  and bipartisan legislative sensibility.  Taking some protective reassuring clarifying legislative action to address JSCENR/JSCACF intent with respect to metallic mining on public lands may be essential to even preserving the public tolerance for the idea of metallic mining anywhere in Maine.

Lew Kingsbury’s argument that the use of the statutory authority for mining in general  under  the Mining On Public Lands Statute  to automatically allow metallic mining as well  would require a 2/3  vote of the legislature for each project is valid and obviously correct.

That would still apply whether or not JSCENR takes this opportunity to correct its prior action on metallic mining via PL 2011 C. 653.

I understand Lew  has brought this to the Attorney General.

JSCACF and or petition from Dr. Marvinney could and perhaps should trigger statutory clarification affirming Lew’s  reasonable and logical interpretation of the “Mining on Public Lands” Statute. This clarification is currently not part of the Department of Conservations Public Guidance on mining on Public Lands as posted September 2013.

If Director of Survey (Dr. Marvinney) does not concur with Lew’s interpretation ( which seems obviously correct) then the only resolution is statutory via clarifications to the “Mining on Public Lands Statute”

Of course there is no question that public sentiment and likely legislative majority sentiment will be for an outright ban on metallic mining on public lands

This summary/briefing was prepared for, and has been used  in, our ongoing collaborative work with all stakeholders and parties with legal obligation and authority in this matter as well as with press.  It will be posted at our website in its entirety as an ongoing guide and press reference. Our site and our counsel serves the Wall Street Journal, Reuters, Associated Press, Major dailies in Brazil, London and Australia as well as major international mining magazines and journals and US and international investor analysts.

Lindsay Newland Bowker, CPCU, ARM Environmental Risk Manager

Bowker Associates

Science & Research In The Public Interest

15 Cove Meadow Rd.

Stonington, Maine 04681

207 367 5145

lindsaynewlandbowker@gmail.com

lindsaynewlandbowker.wordpress.com

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About lindsaynewlandbowker

Bowker Associates, Science & Research In The Public Interest, is an independent non profit providing self initiated pro bono analysis on key issues with a potential for massive adverse environmental impact . Bowker Associates has been an internationally recognized and cited voice in analysis of the Samarco failure, its consequence, and the possibilties for recovery. In 2015 Bowker Associates collaborated with globally respected geophysicist David M. Chambers to recompile global authoritative accounts of significant TSF failures in recorded history and to analyze these data in the context of gloal mining economics 1910-2010 ( Risk, Economics and Public Liability of TSF Failures, Bowker/Chambers July 2015) In 2014 Bowker Associates commissioned globally respected geophysicist and hydrogeologist Dr. David Chambers to undertake two technical works: (1) development of technical go no go criteria for vetting mine applications tp://lindsaynewlandbowker.wordpress.com/2014/01/05/a-new-statutory-regulatory-framework-for-responble-sulfide-mining-should-this-mine-be-built/ and (2) a case study of Maine's Bald Mountain, an un mined low grade high risk VMS deposit demonstrating the efficacy and accuracy of two risk assessment tools in vetting mine proposals https://lindsaynewlandbowker.wordpress.com/2014/02/28/mountain-x-would-you-issue-a-permit-to-this-mine/ In Maine, Bowker Associates has deeply engaged and been a public voice in the Searsport DCP LPG Tank, The Cianbro proposal for a Private East West Toll Road, JD Irvings rolling pipeline of Bakken crude to its plant in St. John and review of Phase II plans at The Callahan Superfund site in Brooksville, Maine, and Maine's revisitation of mining in statute and regulation... Our only “client”: is always “the pubic interest”. Our model is to focus on only one or two issues at a time so that we have a substantive command of the relevant field as our foundation for ongoing engagement. Our core work is in envirommental risk management, science and technology as well as bringing any available “best practices” models to the fore. The legal and regulatory history/best models are also a major thrust of our work in building and evaluating public policy. Director/Principal Lindsay Newland Bowker, CPCU, ARM is a recognized expert in Environmental Risk Management., Heavy Construction Risk Management and Marine and Transit Risks and has more than 3 decades of engagement in buiding public policy. Appointed by Governor Mario Cuomo to New York State Banking Board (served 1986-1996); President New York Chapter Chartered Property and Casualty Insurers; Environmental Committee, Risk and Insurance Management Society; Director, Convenor/Co-Chair Bermuda Market Briefing "From Captive to Cats" Hamilton Bermuda. Published Articles of Significance The Risk Economics and Public Liability of Tailings Facility Failures, co-authored with David M. Chambers, July 2015 Beyond. Polarization: Superfund Reform in Perspective, Risk & Insurance Managing Risk For Loss Prevention & Cost Control (Jan. 24, 1997). Lead Hazards and Abatement Technologies in Construction: A Risk Management Approach CPCU Journal 1997 Employee Leasing: Liability in Limbo Risk Management June 1 1997 Environmental Audit Privilege and the Public interest Risk & Insurance Managing Risk For Loss Prevention & Cost Control, April 1997 Asbestos:Holes In Abatement Policies Need To Be Plugged, Lloyd’s Environmental Risk International, May 1993 Editor Published Letters Evironmental Risk Management Beware of Facile Policies Like Fetal Protection Business Insurance 1995(?) High Court Review May Increase Sale of Bank Annuities Business Insurances August 8, 1995 Professional Profiles Protecting the Big Apple’s Core Managing Risk For Loss Prevention & Control December 1996 Major Career Highlights First rigorous analysis showing Relationship Between declining ore grades and TSF Failures of increasing consequence ( July 2015) FIrst Documentation that Gentrification Has Same Impacts as Unassisted Displacement from Urban Renewal Sites Direted Court Ordered EIS of FHA Mortgage Scandal Created Nation's First Homeownership Program for Low Income People (SHIP) Created Earliest Geographic Information Systems Using Defense Technology Developed By IBM Designed and Conducted Parallel Census Count to Show Systematic undercount in minority neighborhoods Documented Bias in ISO Territory Rating Plans for Private Passenger Auto Insurance Using ISO's own Rating Techniques Demonstrated Inherent Bias in Mortgage Policies of Banks With Inner City Branches Demonstrated that NY Telephones Plan for Area Code Split To accommodate anticipated cell phone demand was not efficient and would exhaust in 5 years ( which it did) Undertook First Systematic Evaluation of Child Protective Services Caseload Using Multi Variate Analyic Techniques Developed Child Protective Caseload Management and Tracking System (CANTS) and directed implementation in 4 client states including Illinois, Florida and New York Created and Ran Office of Risk Management for NYC DEP the Nations largest Water & Sewer Authority . Designed, Created and Administered Nation's First Owner Controlled Insurance Program (OCIP)for High Risk Tunneling Education Masters NYU Graduate School of Public Administration BSC New School For Social Research Maine Public Schools Deering High School
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