Clay, what d oyou make of this?

[Mad Machinist]

https://www.blm.gov/policy/im-2018-093

 

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[winners58]

there was a recent case where they added cleaning up several spots from mining in the past onto a miners PoO
cant find it now, might have been an IBLA case, In that case because it was added but not part of their plan and
since they agreed to it, they were bound by contract. maybe this policy change will add clarity, still be careful what you agree to.

 

[russau]

Winners I agree with your comment and YES be careful of what you agree to ,IT MAY BE PRECIDENT SETTING FOR ALL !

 

[Clay Diggins]

Well...

It's obviously an Instruction Memorandum directed internally to Assistant Directors and All Field Office Officials. It's not a law or a regulation but a management policy clarification.

Basically it's saying the BLM can't make permitting conditional on tit for tat. There has been a long term problem with local land managers making people who apply for permits do a little something for the BLM that has nothing to do with their proposed use so the BLM will hurry their application along.

The example given by Winners is typical. Stuff like "if you repave the campground we will give you a permit to improve the road to your mine" is illegal and amounts to soliciting a bribe. This is pretty common in mine permitting and private property access easements with the BLM. Sometimes it's a wink and a nod and sometimes it's outright arm twisting. This memorandum is an attempt to make it clear that BLM employees can not even suggest that extra work or money not spent on your project will be needed to get permits.

Here's the basis for the instruction:

Compensatory mitigation is “voluntary” when a project proponent’s activities, payments, or in-kind contributions to conduct offsite actions to minimize the impacts of a proposed action are free of coercion or duress, including the agency’s withholding of authorization for otherwise lawful activity, or the suggestion that a favorable outcome is contingent upon adopting a compensatory mitigation program.

Except as described herein, the BLM will not impose, and will not build mechanisms for it to enforce, mandatory compensatory mitigation into its official actions, authorizations to use the public lands, and any associated environmental review documents, including, but not limited to, permits, rights-of-ways, environmental impact statements, environmental assessments, and resource management plans.

BLM can't turn down your project if you refuse to kick in some extra work or goods:

Any compensatory mitigation that a project proponent proposes must be voluntary.

BLM must not deny authorization for a project or activity based upon a project proponent’s refusal to adopt a compensatory mitigation proposal that BLM has identified.

BLM can't accept money to work on a project not related to the project that's being applied for (no cash bribes can be accepted):

In no circumstance may BLM agree to accept a monetary contribution for the implementation of compensatory mitigation.

This instruction is retroactive to projects currently being considered or being modified:

The BLM may incur costs related to adjustments to project proposals currently being processed or changes made to land use authorizations that are not consistent with the procedures listed in this IM.

From now on the boss has to certify that any offer of help from an applicant is voluntary:

The appropriate State Director must review all applications for which the applicants are proposing to conduct offsite compensatory mitigation to make certain that the proposed offsite compensatory mitigation is voluntary.

Of course, as always, if you are foolish enough to volunteer to make a bribe and incorporate it into your plan proposal the BLM can hold you to that offer just like any other contract:

Project proponents seeking BLM authorizations are free to incorporate compensatory mitigation measures in proposals.

What happens if you "volunteer" a bribe and don't carry through on the deal?

In appropriate circumstances, the BLM could pursue penalties for violations, including cancellation of the permit, attaching the project or permit bond, and/or other enforcement remedies to ensure that the terms of the permit are met.

What's so bad about the BLM requiring a little extra work or money to get the ball rolling - you know just grease the wheels a little?

Compensatory mitigation could “appear to be an unauthorized tax or an equally unauthorized attempt to augment BLM’s existing appropriations” that would likely “strike the subjects of the ‘contribution’ as little more than thinly veiled blackmail".

Yeah maybe. Duh

I hope that makes things a little clearer Mad dude?

Heavy Pans

 

[Mad Machinist]

Yea I thought it was something along those lines. Thank you.