2008-07-28_GENERAL DOCUMENTS - M1978091UG

Home Browse Search

JUL. 23. 2008 12:13PM USDI IBIA NO. 7496 P. 11 - - -- IBIA 2007-187 When unnecessary or undue degradation is likely to occur, BLM is required to take appropriate steps to preclude such degradation, including requiring an operator, pursuant to 43 CAR. §§ 3809.312(x) and 3809.313, to modify its proposed operations In such a manner as "to prevent unnecessary or undue degradation," or barring an operator, pursuant to 43 C.FX § 3809.311(c), from conducting operations where it is unable "w prevent unnecessary or undue degradation." LKA states that, while BLM may require an operator to modify a proposed notice-level operation in order to ensure that it does not unnecessarily or unduly degrade the public lands, the regulation does not allow BIM to totally disqualify an operation from proceeding as a notice-level operation and force the operation to proceed as a plan-level operation based on concerns about unnecessary or undue degradation. We agree with LKA that the regulations in 43 C.F.R. Subpart 3809 do not state that BLM may require one proposing to conduct notice-level operations to file a plan of operations merely because BLM has concerns that those operations might cause unnecessary or undue degradation of the public lands. BLM may properly seek to prevent notice-level operations from proceeding until it is reasonably assured that they are unlikely to cause any unnecessary or undue degradation of the public lands. 14 Thus, BIM could have required LM to provide, as part of the process of reviewing IJWs NOI, additional information designed to address the uncertainties regarding the quality and quantity of the underlying rock and water which was likely to be intersected by its proposed tunnel. While BIM did require additional information regarding those matters, it did not request any further information or require LKA to modify its Nol to prevent unnecessary or undue degradation. is instead, BLM refused to allow the proposed operations to proceed under a notice and required the filing of a plan of operations or a plan amendment. The record does not support such action. 14 LKA properly notes: "If the BLM intends to prevent notice-level operations from occurring based on concerns about unnecessary or undue degradation, then 43 C.F.R. § 3809.313(b) specifically allows the BLM to remand the notice to the project proponent with a request that it be modified further to resolve the BLM's concerns." Petition at 8; see uiso id. at 9 ("If there are lingering, valid concerns about , unnecessary or undue degradation resulting from the tunnel project, then the BLM may ask LKA to address those concerns by further modifying the Notice"). is The regulations expressly state at 43 C.F.R. § 3809311(c) that BLM will review required additional information from the person filing a mining notice to ensure the notice is complete, and that BLM will repeat the process until the notice is complete or until it determines that operations may not proceed "because of your inability to prevent unnecessary and undue degradation." 175 IBLA 235