Complete text of June 6 Formal Protest letter
Thunder Consulting
174 E. Hoffer St.
Banning, CA 92220
(909) 849-1403Formal Protest
June 6, 1997
By Personal Service to:
District Manager
Bureau of Land Management
Las Vegas District Office
4765 Vegas Drive
Las Vegas, NV 89108By Fax to:
State Director
Bureau of Land Management
Nevada State Office
850 Harvard Way
Reno, NV 89520RE: Formal Protest of the decision of the Las Vegas District Manager to conduct a gravel sale totaling 22 Million tons from the Lone Mountain Community Pit.
RE:
1) Gross misuse of the Community Pit regulations at 43 CFR 3604 by personnel of the Las Vegas District Office(LVDO).
2) Using the Community Pit Regulations to intentionally circumvent the requirements of the National Environmental Policy Act (NEPA), the BLM Federal policy at 43CFR3600.0-4, and violation of Interior Department policy at.
3) Gross misuse by the Las Vegas District Manager of his statutory authority by using the community pit regulations to create a defacto withdrawal from operation of the Mining Law of 1872 in violation of section 204 of the Federal Land Policy and Management Act (FLPMA) by designating 5,408.15 acres as a community pit for the sole purpose to preventing the staking of mining claims.
4) Gross misuse by the Las Vegas District Manager of his statutory authority by requiring a $0.25 per cubic yard fee for tortoise protection as per section 3 of the Terms and Conditions of the 1992 environmental assessment that is unaccounted for. In the immediate case, the fees from the sale of 22,000,000 tons of sand and gravel would generate an estimated $5,000,000 which is solely in the control of the LVDO with no accountability.
5) Far exceeding the 300,000 tons per year production analyzed and specified in the original EA completed for the designation of the Lone Mountain Community Pit.
6) Failure of the LVDO to complete an environmental assessment to evaluate the impacts of the proposed sale on the environment and surrounding lands.
This is to inform you that Thunder Consulting has been engaged by and is acting on behalf of following homeowners groups in the Lone Mountain, Nevada area:
Northwest Territory Association
Lone Mountain Citizen's Advisory Council
Northwest Citizens Association
Sheep Mountain Homeowners Association
Mountain Shadows Homeowner's Association
Nevada Environmental Coalition
Citizens Alert
Friends of Lone Mountain Hiking Club
Sun City Summerland Residents OrganizationThe membership of these groups consist of citizens that own property and homes in and around the Lone Mountain Community Pit. These private land owners maintain that they and their families will be adversely affected by the action being proposed by the BLM in that their environment will be adversely impacted by the proposed action and that their property values will be degraded.
On behalf of these groups Thunder Consulting hereby files this Formal Protest to the BLM's Las Vegas District Manager's proposal to sell 22,000,000 cubic yards of material from the Lone Mountain Community pit. (Copy of announcement attached) This protest is being served on both the Nevada State Director, BLM and the Las Vegas District Manager.
The proposed action is being taken based on improper procedures of the Las Vegas District Office. Specifically, the Las Vegas District Manager has perverted the intentions and purpose of the Community Pit Regulations at 43CFR3804 for the purpose of circumventing the requirements of NEPA that requires disclosure of the environmental impacts of all major Federal actions, has used the community pit regulations to create an illegal withdrawal of Federal lands from operation of the mining laws, and has improperly created a slush fund for the financing of BLM projects without appropriation by Congress of the U.S.
Historically, the LVDO has been designating community pits not for the purpose for which they were intended (i.e., expediting small repetitive sales of sand and gravel) but as a means of granting large commercial sales without benefit of a mining plan (as required by 43CFR3602.1), or a current environmental assessment (EA) to evaluate the impacts to local residents and surrounding lands (as required by 43CFR3601.1-3, the disclosure requirements of the NEPA) and Interior Department Regulations.
In the immediate case, the violations of the LVDO are so flagrant as to constitute gross malfeasance of office by the District Manager and the district staff.
This is reflected in the immediate case by the fact that the LVDO is utilizing portions of the regulations as they pertain to requiring sealed bids per 43CFR3610.2-2(b), bid deposit as required by 43CFR3610.3-4, and a performance bond as required by 43CFR3602.1-5 while at the same time failing to complete an environmental assessment for the second largest gravel sale in the history of the BLM by asserting that it is in a community pit and as such is covered under the old EA completed in September 1, 1992 specifically for the designation of the community pit. The fact that the BLM is conducting an "exclusive" sale is in and of itself refutation of the use of the community pit by the BLM. The "exclusive" nature of this sale specifically violates the definition of a community pit at 43CFR3600.0-5(g) which states:
(g) "Community pit" means a site from which nonexclusive disposals of mineral material can be made... (emphasis added)
All terms of this sale point to the fact that the BLM is in fact making an exclusive sale as provided for by 43CFR3610 NOT a nonexlusive sale as provided for by 43CFR3604. This is shown by the fact that they are offering specific parcels and specific volumes of material.
Nonexclusive means that a purchaser, once he is in possession of a contract, may remove material from any location within the pit area. Also, the fact that they are requiring a performance bond is in direct conflict with 43CFR3604.2 which states:
"(a) Permits or contracts for the extraction of mineral materials from community pits or common use areas shall not require reclamation but shall require payment of cost of reclamation, as provided in paragraph (b) of this section..." (Emphasis Added)"
The EA written for designation of the Community pit was completed in 1992. Since its completion the area around the community pit has undergone intensive residential and industrial development. Development that extends right to the pit boundaries. Facts that the LVDO are well aware off.
No section of the EA evaluates the cumulative impacts of the community pit on the surrounding lands and people. In fact, the cumulative impact section of the EA only addresses the impacts on the desert tortoise by development on Federal and private lands. No where does it address the cumulative impacts of the PROPOSED ACTION on surrounding lands or population. Currently there are 7 gravel companies operating within the Lone Mountain Community Pit. These operations produce dust and noise that affect the local residents. In addition, haul truck utilize several miles of designated residential streets for access to the Interstate Highway that lies east of the pit. In utilizing these roads the 50 ton haul truck drive past single family houses, apartments with high density occupancy, and small shopping centers. This use constitutes a safety hazard to the local residents in the form of a hazard from collision with other vehicles to possibly striking children walking along the residential streets. This is particularly hazardous at night.
By offering four separate parcels the BLM is potentially allowing 4 additional operators to use this site. By selling 22 million tons the action taken by the BLM will result in from 300 to 400 ADDITIONAL truck trips per day. The extraction and processing will significantly increase dust and noise effecting local residents who live immediately adjacent to the pit.
The BLM has violated Section 204 of the FLPMA by creating a defacto withdrawal from the operation of the Mining law of 1872 when it designated 5408.15 acres as community pit for the expressed and only purpose preventing the staking of mining claims. Specifically EA-054-92-164 states in the "Project Location" section":
"The site is located 9 miles Northwest of Las Vegas, Nevada (Fig. 1). The Designated Community Pit covers 5,408.15 acres in Township 19 South, Range 59 East; Township 20 South, Range 59 East; Township 19 South, Range 60 East and Township 20 South, Range 60 East (Appendix I). Most of this acreage is in 5 and 10 acre lots and was designated as a community pit to prevent further encroachment by mining claims. The operating pit is currently confined to: (Emphasis Added)
Township 20 South, Range 59 East of the Mount Diablo Meridian:
Section 1; N-NE Consisting of 80 acres
That Area lying in:
Township 19 South, Range 59 East:
Section 36; S-NE-SE- , S-SE -
Consisting of 100 acres...
...Total intended operational acreage being 180 acres (Fig. 2)
This is a gross misuse of the Community Pit regulations that were intended to prevent appropriation of mineral rights to known gravel or mineral resources designated for use by the local community or industry. It was never intended that these regulation be used as a way for BLM local managers to create withdrawals from operation of the mining law. That authority is specifically vested in the Secretary of the Interior by section 204 of FLPMA. To the contrary, the community pit regulations were written solely as a site specific protection of specific identified industrial minerals resources so as to insure the availability of those resources for their intended use.
Paragraph 3b of the "Terms and Conditions" section of EA-054-92-164 requires payment of the purchaser of $0.25 per cubic yard. This fee will generate over $5,000,000 for use by the BLM allegedly for:
"These funds will be used for maintenance of tortoise-proof fencing around the pit, removal of tortoises from the pit and conducting validation surveys on mineral claims in areas proposed for desert tortoise management. (Emphasis Added)
It is readily apparent that a potential $5,000,000 will purchase a great quantity of tortoise fencing.
It is questionable as to the true motivation of the LVDO in proposing this sale.
Is it primarily to supply gravel to the local economy or is it in reality primarily for the purpose of establishing a large slush fund for the LVDO that is not being accounted for under Federal accounting and financial rules.
The crucial questions here are, 1) who is responsible for managing these funds, 2) how has the potentially several million dollars that has been collected from past and current gravel operators at the Lone Mountain Community pit been used, and 3) how would the potentially $5,000,000 from the proposed sale to be used?
Environmental Assessment EA-054-92-164 completed for the designation of the Lone Mountain Community Pit specifies that the estimated usage for life of the pit is 300,000 cubic yards per year.
That provides for a total of 3,000,000 tons over the expected pit life of 10 years. The proposed sale exceeds this amount by 19,000,000 cubic yards. By their own admission the BLM has not completed a separate EA to evaluate the impacts of the proposed sale. Instead the BLM relies solely on the EA written for the designation of the community pit. This is in violation of 43CFR3601.1-3 which states:
...Upon receipt of an application for sale of free use of mineral materials, the authorized officer shall complete an environmental review to ensure that unnecessary or undue degradation is prevented...
The "Finding of No significant Impact" (FONSI) approved by the BLM for the designation only addresses the impacts for disposal of 3,000,000 cubic yards. In no way can the BLM use that evaluation to justify the sale of an additional 22,000,000 tons. EA-054-92-164 acknowledges under the "AFFECTED RESOURCES" section for air quality that the Lone Mountain Community Pit:
...the site area is located in the Las Vegas air quality non-attainment area. This designation indicates that the site area falls within a zone that is out of compliance with the state and federal air quality standards. The Environmental Protection Agency (1977) reported that fugitive dust represents a significant matter in Las Vegas. High carbon monoxide (CO) levels are reported along highways in the valley. It can be expected that the continued operation of this pit will contribute to fugitive dust and carbon monoxide... (Emphasis Added)
Despite these facts the BLM went forward with a pit that would contribute further to the dust and carbon monoxide pollution of an area already designated as a non-attainment area.
Now the BLM proposes to increase the emissions from this site by conducting a large sale over and above what was provided for in the original EA. This is a violation of the Clean Air Act which states at U.S.C., Chapter 85, Section 7506(c)(1):
No department, agency, or instrumentality of the Federal Government shall engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity which does not conform to an implementation plan after it has been approved or promulgated under section 7410 of this title.
There can be no argument that the removal, processing, loading and hauling of 22,000,000 tons of gravel will add significantly to the dust and CO pollution of the Las Vegas valley and the area surrounding the community pit. The fact that this will expose the public to an increased health hazard is indisputable. The fact that the BLM is flagrantly and maliciously disregarding Federal law in proposing to take a major Federal action without ANY environmental review of that action is in direct violation of its own regulation, the NEPA and the Clean Air Act. Not to mention reprehensible conduct by the BLM management and staff to a level that could be considered criminal in nature.
Relief Sought
Cancel the Proposed Sale.
Require the completion of an Environmental Impact Statement as required by the NEPA if the BLM proposes to go forward with the sale at a future time.
Remove the Community pit designation on that portion of the community pit not within the 180 acre "operation zone".
Cease misusing the community pit regulation and conducting all future exclusive sales in accordance with 43CFR3610.
Submitted this Date
Frederick P. Schuster
Thunder Consulting