MEMORANDUM OF UNDERSTANDING

FOR MINING AND MINERAL RELATED ACTIVITIES

WITHIN THE STATE OF NEVADA

AMONG

NEVADA DEPARTMENT OF CONSERVATION

DIVISION OF ENVIRONMENTAL PROTECTION

AND

U.S. DEPARTMENT OF AGRICULTURE - FOREST SERVICE

HUMBOLDT-TOIYABE NATIONAL FOREST

AND

INYO NATIONAL FOREST

AND

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

NEVADA

 

 

DATE:

July 15, 2002

 


This MEMORANDUM OF UNDERSTANDING, hereinafter referred to as the MOU, is entered into among the agencies identified as the State of Nevada, Division of Environmental Protection, hereinafter called the NDEP, the U.S. Department of Agriculture - Forest Service, Humboldt-Toiyabe National Forest and Inyo National Forest, hereinafter called the USDA-FS, and the U.S. Department of the Interior - Bureau of Land Management, Nevada, hereinafter called the BLM.

I.     PURPOSE

The purpose of this MOU is to: 1) Establish and maintain coordination between the NDEP,           the USDA-FS, and the BLM for their respective individual responsibilities pertaining to the administration and reclamation of lands disturbed by exploration projects and mining operations for locatable minerals on private, state, and Federal lands administered by the USDA-FS and BLM within the State of Nevada, 2) Expedite administration and enforcement of their respective authorities, 3) Prevent unnecessary and undue degradation of public lands and USDA-FS lands and 4) Develop and maintain common guidelines and procedures for regulation of exploration and mining related facilities and activities.

II.             AUTHORITIES

This MOU is based on the following authorities:

A. NDEP

1.      Nevada Revised Statutes, Chapter 519A.

2.   Nevada Revised Statutes, Chapter 445A. 

B. USDA-FS

1.      The U.S. Mining Law of May 10, 1872, as amended (30 U.S.C. 22, et seq.).

2.      The Organic Administration Act of June 4, 1897, as amended (30 STAT 36, 16 U.S.C. 478 and 551).

3.  Title 36 of the Code of Federal Regulations, Part 228, Subpart A.

C. BLM

1.      The U.S. Mining Law of May 10, 1872, as amended (30 U.S.C. 22, et seq.).

2.      Sections 302, 303, 601 and 603 of The Federal Land Policy and Management Act of 1976, as amended (90 STAT 2762, 43 U.S.C. 1732 et seq.).

3.      Title 43 U.S.C. 1201. Sections 1201 and 1457.

4.      Title 43 of the Code of Federal Regulations, Subparts 3802, 3809 and 3715.

III. DEFINITIONS

1. Compliance Enforcement - Administrative and legal remedies for violations of an agency’s applicable laws and regulations.

2. Land Managing Agency - The agency responsible for the administration and management of the land. For the purposes of this agreement, the USDA-FS and the BLM are the “land managing agency” on those lands which each administers.

3. Locatable Minerals - All mineral deposits which are under the General Mining Law of May 10, 1872, as amended and except those specifically excluded by the Mineral Leasing Act of 1920, as amended, and Materials Act of 1947, as amended.

4. National Forest System Lands (NFS) - Land areas administered by the U.S.D.A. Forest Service.

5. Public Lands - Lands administered by the BLM under Title 43 of the Code of Federal Regulations, Subparts 3802 and 3809.

6. Notice of Intent (Notice) or Plan of Operations (Plan) - Formal notification that requires review and acceptance or approval to conduct operations, including reclamation on Federal lands.

7. Reclamation Permit - The permit issued by the NDEP pursuant to NRS 519A and NAC 519A regarding reclamation of mining operations and exploration projects.  The permit application, which should be the same as the Plan of Operations for the Federal land managing agency, is reviewed per NAC 519A regulations for operations, reclamation and a reclamation cost estimate.  Once the plan is deemed complete by NDEP, the Reclamation Permit is issued.

IV.   COMPLIANCE ENFORCEMENT

Each agency shall have the responsibility for enforcement of its applicable regulations, rules, and laws.  The Federal land managing agencies and NDEP will coordinate on enforcement actions.  Failure to achieve compliance enforcement requirements by any agency may result in a request for bond forfeiture.

V. PLANS AND PERMITS

An operator shall obtain a reclamation permit and provide evidence of a financial guarantee in accordance with the requirements of NAC 519A.010 – NAC 519A.415.  A water pollution control permit and final permanent closure plan may be required in accordance with the requirements of NAC 445A. 350 – NAC445A.447.  If the proposed activities affect public or NFS lands, the operator shall also obtain approval from the appropriate Federal agency in accordance with 43 CFR 3809.300 – 3809.900 and/or 36 CFR Part 228, Subpart A and provide a financial guarantee with the appropriate agency.  When an operator submits a new or amended plan of operations covering either public or a mix of public and private lands to the Federal agency, the operator shall submit a duplicate copy of the plan to the NDEP for concurrent review and approval (joint plan) including the reclamation cost estimate. 

When an operator submits a new or an amended plan of operations, the agencies will initiate coordination of the review and National Environmental Policy Act (NEPA) processes by meeting between the appropriate agencies and scheduling the most efficient review and permitting process including bonding issues.  NDEP may choose to participate in NEPA with the Federal agencies.  A mandatory coordination meeting or teleconference between the operator and the agencies shall be scheduled so that all parties are involved at the initial stages of a new plan or amendment.  Points of contact shall also be established at this time.

BLM and NDEP will develop a joint Plan form that can be used by both agencies.

For closure issues, the Federal agencies will notify NDEP whether additional NEPA is required and the extent of Federal agency involvement.  Each agency will notify the others of meetings that are scheduled with the company involving these issues.

VI. JOINT FINANCIAL GUARANTEE

The articles in this section describe a process to ensure consistency in determining the amount of a reclamation bond, administering the bond, collecting the bond and performing reclamation on mixed private, public and NFS lands.

1.         A single reclamation cost estimate shall be prepared for every Plan.

2.         If NFS lands are involved, that applicable portion of the reclamation cost estimate shall be documented and allocated for NFS lands.  Each State or Federal agency shall have access to its appropriate allocation of the bond unless otherwise agreed to in writing. 

3.         All agencies with jurisdiction shall prepare, or review and approve in writing the reclamation cost estimate.  Where an agency cannot review the reclamation cost estimate in a timely manner, the written approval and issuance of an interim bond decision may be issued conditioned upon completion of a full review and issuance of a final decision.  All reviews and estimates shall be coordinated to the extent legally feasible in order to produce a mutually acceptable financial guarantee.

4.         When more than one agency requires a bond for operations solely on Federal lands, a single joint financial guarantee may be held by the Federal agency with the greatest reclamation liability.  Such financial guarantee must be acceptable to all agencies covered, and meet all agency requirements and standards.

5.         For operations involving NSF and non-Federal lands, a single financial guarantee may be provided if it specifies the amount of the bond allocated to reclamation on NFS and non-Federal lands.  The basis for the allocations shall be the bond estimate as described in Item 2 and agreed to by the agencies in Item 3 of this section of the MOU.  The single financial guarantee may be held by one Federal agency or by the State through this MOU.  Such financial guarantees must be acceptable to all agencies affected, and meet their agency requirements and standards.

6.         The amount of financial guarantee must be sufficient to satisfy the agency reclamation cost estimates for the lands under their jurisdiction.  Where a mutually acceptable cost estimate cannot be reached, the agencies shall enter into dispute resolution as outlined in section IX of this MOU.  If dispute resolution is not successful, then the agencies shall be responsible for determining the reclamation cost estimate for lands under their jurisdiction and bond accordingly.

7.         If an agency finds cause to take collection action on a financial guarantee held by another agency, the first agency will notify the holding agency and request that the holding agency initiate collection action. The agency holding the financial guarantee will take collection action to the extent provided by its laws and rules or regulations.

8.         When a financial guarantee is forfeited or relinquished, the agency holding the financial guarantee will coordinate with the appropriate agencies on site reclamation.  Expenditure of funds will be as described in Item 2 of this section.  It is further agreed that the agency holding the financial guarantee will act on behalf of the other agencies on any matters concerning the financial guarantee, to the extent provided by its laws and rules or regulations.  The parties may enter into additional agreements as may be necessary to implement this section.  Such agreements may be needed to describe legal and procedural requirements that must be followed by agencies in demanding, holding and expending reclamation bonds, and/or to indemnify agencies acting on their behalf to comply with this MOU.

9.         Upon written concurrence from all agencies involved that all or a portion of reclamation has been satisfactorily completed, the agency holding the financial guarantee agrees, to the extent provided by its laws and rules or regulations, to notify the surety or financial institution that performance under the bond has been completed as required by the Plan or Permit and agrees to reduce proportionately the amount of bond required to be held. 

VII. LIMITATIONS

This agreement is not intended to waive or otherwise limit any Federal or State laws, rules, or regulations, or any other requirements or duties under such laws, rules, or regulations.  This agreement is not intended to give an agency additional authority beyond their current laws, rules or regulations.  All operators shall fully comply with all applicable Federal and State laws, rules, and regulations pertaining to exploration, mining and related reclamation.

VIII. COORDINATION

1.      The agencies will promptly inform the other parties to the MOU of any new or possible unknown mineral-related activities of concern to the other agencies on either Federal or private lands.

2.      Each agency will promptly inform the other parties to the MOU of any changes in rule making and policy.

3.      Select representatives from the agencies will meet on an annual basis to coordinate activities, resolve issues or mutual concerns, exchange information on policies and procedures, and any other matters of mutual concern that affects the implementation of this agreement.

4.      The agencies will provide the other agencies a list of field-level personnel as a working directory of current locatable mineral projects and the points of contact for each project. 

5.      The agencies will coordinate and exchange relevant information and correspondence relating to inspections and reclamation plans for projects affecting the agencies.

6.      The agencies will coordinate and exchange information relating to Notices of Noncompliance and Findings of Alleged Violation and Order.

IX. DISPUTE RESOLUTION

In the event that the agencies may reach an impasse in resolving an issue, it is in the best interest of each agency to resolve the issue at the lowest possible level.  Two levels of resolution will be established under this MOU.  The first level will involve the Field Office Manager for BLM, the Forest Minerals Program Manager for USDA-FS and the Bureau Chief for NDEP.  If resolution cannot be reached at this level, the next level will involve the State Director for BLM, the Forest Supervisor for USDA-FS and the Administrator for NDEP.

X. EFFECTIVE DATE

This MOU shall become effective upon signature by the Administrator of the NDEP, the Forest Supervisor for the Humboldt-Toiyabe and Inyo National Forests of the USDA-FS, and the Nevada State Director for the BLM, and will remain in full force and effect for a period of five (5) years at which time it will expire unless extended.  The parties agree to implement the terms and conditions of this MOU as of the date of the final signatures below.

XI. AMENDMENTS

Amendments to this agreement may be proposed at any time by any party to the agreement and shall become effective upon written approval by all parties to the agreement.

XII. TERMINATION

Any of the parties, after 60 days written notice to the other agencies, may terminate this agreement, in whole or in part, at any time before the date of expiration.  In the event this agreement is terminated, each agency agrees to maintain the existing financial guarantees until such time as an agreement can be reached between the operator, the NDEP, the USDA-FS, or the BLM to replace or release the financial guarantee.

 

XIII. NON-FUND OBLIGATING DOCUMENT

This agreement is neither a fiscal nor a funds obligation document.  Any endeavor or transfer of anything of value involving reimbursement or contribution of funds between the parties to this agreement will be handled in accordance with applicable laws, regulations and procedures including those for Government procurement and printing.  Such endeavors will be outlined in separate agreements that shall be made in writing by representatives of the parties and shall be independently authorized by appropriate statutory authority.  This agreement does not provide such authority.  Specifically, this agreement does not establish authority for noncompetitive award to the cooperator of any contract or other agreement.  Any contact or agreement for training or other services must fully comply with all applicable requirements for competition.

XIV. FREEDOM OF INFORMATION ACT (FOIA)

Any information furnished to the USDA-FS and the BLM under this agreement is subject to the Freedom of Information Act (5 U.S.C. 552).

XV. PARTICIPATION IN SIMILAR ACTIVITIES

This agreement in no way restricts the USDA-FS, the BLM or the Cooperator(s) from participating in similar activities with other public or private agencies, organizations, and individuals.

XVI.   PRINCIPAL CONTACTS

Nevada Division of Environmental Protection

Phone

Bureau of Mining Regulation & Reclamation – Bureau Chief

(775) 687-4670

Humboldt-Toiyabe National Forest

Phone

Minerals Team Leader

(775) 778-0226

Inyo National Forest

Phone

Minerals Team Leader

(760) 873-2424

Bureau of Land Management

Phone

Mining Law Program Lead

(775) 861-6575

 


 

XVII.SIGNATURES

_____________________________________

    ________________

Administrator
Division of Environmental Protection
State of Nevada

Date

 

_____________________________________

   ________________

Forest Supervisor
Humboldt-Toiyabe National Forest
U.S.D.A. Forest Service

Date

 

_____________________________________

   ________________

Forest Supervisor
Inyo National Forest
U.S.D.A. Forest Service

02-MU-11050453-011

Date

 

_____________________________________

   ________________

State Director
Nevada State Office
U.S.D.I. Bureau of Land Management

Date