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N0. 7496 -P. 8 - - - - <br />JUL.23.2008 12:12PM USD1 181A <br />IBLA 2007-187 <br />A. Do LM's Proposed Operations Constitute Exploration? <br />[3] BLM's April 2007 decision holding that LKA's proposed operations do not <br />qualify as notice-level operations rested, in part, on its conclusion that the operations <br />do not constitute "exploration" under 43 C.F.R. § 3809.21(a).10 LKA, however, <br />argues that its proposed operations constitute "exploration." It challenges BLKs <br />conclusion that exploration consists of drilling, but riot sinking a tunnel, such as that <br />described in the NO], and BLM's claim that such tunneling exceeds industry standards <br />and can only be described as production. See Decision at 1. LKA states that such <br />tunneling fits within the regulatory definition of "exploration," which provides at <br />43 C.F.R. § 3809.5 that that term "means creating surface disturbance greater than <br />casual use that includes sampling, drilling, or developing surface or underground <br />workings to evaluate the type, extent, quantity, or quality of mineral values present," <br />but "does not include activities where material is extracted for commercial use or <br />sale." LKA argues that "[c]learly, a tunnel is a type of underground working and, <br />under the rule, a valid method of conducting exploration that is co-equal and <br />alternative to drilling; whereas the tunnel's dimensions are irrelevant to a <br />determination of whether the tunnel is exploratory in nature " n z Petition at 10. <br />The record supports 1.KA's contention that its proposed operations fall within <br />the regulatory definition of exploration. The tunneling that LKA proposes to <br />undertake constitutes "developing ... underground workings" that are intended "to <br />evaluate the type, extent, quantity, or quality of mineral values present." Since the <br />regulation does not specify the size of such "workings," we cannot fund that the <br />proposed tunnel must be considered production, rather than exploration, activity. <br />While it is true, as evidenced by the testimony in Miller, that such a tunnel may be <br />used for the production of mineral ore, there is no evidence here that LKA's present <br />intention is to extract material for commercial use or sale, rather than to evaluate the <br />ro BL.M does not dispute MKs contention that there would not be a violation of the <br />acreage limitation on notice-level operations, regardless of the extent of underground <br />disturbance, because the total surface disturbance associated with its proposed <br />operations will be only 1.22 acres. See 43 C.F.R. § 3809,21(a). <br />II With its Reply, LKA offers the declarations of Delmer L. Brown and Stephen E. <br />Glass. Reply, Ex, 1. Brown, a geological engineer with 42 years experience in <br />mineral exploration and development, and Glass, an environmental scientist with . <br />17 years experience in the mining Industry and Chief Executive Officer of Bluerock <br />Energy Corporation, an underground training company with mining claims, properties <br />and related interests in Colorado and Utah, both state that "the sinking of a adit, <br />shaft or tunnel to explore for the presence, quantity and quality of subsurface <br />minerals is considered a standard form of exploration within the mining industry." <br />Brown Declaration a05; Glass Declaration at 15. Such activity, they both state, "is <br />standard and accepted even if it is not preceded by a drilling program." Id. at 16. <br />17S IBLA 232