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JUL.23.2008 12:12PM USDI IBLA <br />NO. 7496 - P. 6- - -- <br />IBLA 2007-187 <br />would take to avoid unnecessary or undue degradation as a result of the tunnel <br />project. Reply at 2. LKA asserts that BLM has not demonstrated that, despite such <br />measures, unnecessary or undue degradation would still occur.7 a <br />LKA recognizes that BLM can, under 43 C.F.R. §§ 3809.312(a) and 3809.313, <br />lawfully prohibit LKA from proceeding with the tunnel project under the NO], if it <br />properly determines, as a matter of law, that the proposed operation does not qualify <br />as a notice-level operation under 43 C.F.R. § 3809.11 or § 3809.21. It argues, <br />however, that its proposed exploration, in fact, qualifies as a notice-level operation, <br />since it is not disqualified under any of the provisions of 43 C.F.R. §§ 3809.11 and <br />3809.21: "[BLM's] Decision fails to put forth a lawful reason for denying LKA the <br />right to proceed with the exploration tunnel as a notice(-]level operation," adding <br />that "[BLM] does not establish that any of the conditions that trigger the requirement <br />of a plan of operations exists in this case" Petition at 13-14. <br />!IL Discussion <br />[1] Departmental regulations governing the surface management of mining <br />claims recognize three types of operations on mining claims: "[c]asual use, for which <br />an operator need not notify BLM"; "[n]otice-level operations, for which an operator <br />must submit a notice"; and "[p]lan4evel operations, for which an operator must <br />submit a plan of operations and obtain BLM's approval." 43 C.F.R. § 3809.10. What <br />is at issue here is the distinction between notice-level operations, which are defined <br />by 43 C.P.R. § 3809.21(a), and plan-level operations, which are defined by 43 C.P.R. <br />§ 3809.11(a). <br />7 LKA anticipated the excavation and removal of a total of 7,467 cubic yards of <br />"andesite [and] argillic alteration rock." NOl at 3. LKA broke the total down into <br />5,689 cubic yards of andesite and 1,777 cubic yards of argiilllc alteration rock. Notice <br />of Intent, Attachment G (Volume Estimates). The andesite is described as "a <br />crystalline volcanic rock that contains stable minerals, which are inert to metals <br />leaching." Notice of Intent, Attachment E (Water Management Plan for the LKA <br />Exploration Adit), at unpaginated 2. The argillic alteration rock is represented as the <br />only "waste rock," or rock with add-bearing characteristics, which might be <br />encountered in the tunnel. Notice of Intent, Attachment H (Waste Rock Management <br />Plan), at unpaginated I. Following extraction and removal from the tunnel, both the <br />andesite and argillic alteration rock would be segregated on the surface, using the <br />andesite to encapsulate the argillic alteration rock. All of the material would <br />eventually be covered with topsoil and reclaimed. in general, the argillic alteration <br />rock would have little to no exposure to the air and water: "In the absence of <br />atmospheric oxygen and water, the encapsulated acid-bearing materials will not yield <br />any acids of significance or concern." fit at unpaginated 3. <br />175 IBLA 230