USDI Bureau of Land Management MOU

Forest Service Agreement Number: 09-MU-11030514-032
BLM Agreement Number: AZ-2009-09, Subject Code: 1786, 1793(P)

MEMORANDUM OF UNDERSTANDING
between
USDA FOREST SERVICE, REGION 3,
CORONADO NATIONAL FOREST
and
USDI BUREAU OF LAND MANAGEMENT
GILA DISTRICT, TUCSON FIELD OFFICE
TUCSON, ARIZONA

This MEMORANDUM OF UNDERSTANDING, to cooperate in the National Environmental Policy Act process concerning the Rosemont Copper Project, is hereby entered into by and between the USDA Forest Service, Region 3, Coronado National Forest (hereafter, Forest), hereinafter referred to as the Forest Service, and the USDI Bureau of Land Management, Tucson, Arizona, hereinafter referred to as the USDI BLM.

A. PURPOSE
The purposes of this Memorandum of Understanding (MOU) are to:

Provide the framework for a mutually beneficial, cooperative, and productive intergovernmental relationship between the Forest Service and the USDI BLM with regard to the development of the Forest Service's environmental impact statement for the Rosemont Copper Project.
Define the respective roles and responsibilities of the Forest Service and the USDI BLM as they relate to the process the Forest Service will use in developing an environmental impact statement for the Rosemont Copper Project.
Affirm the parties' willingness and agreement to cooperate in the environmental study for the Rosemont Copper Project.
Identify the Forest Service as the Lead Federal Agency and the USDI BLM as a cooperating agency.
Affirm that the Forest Service has primary responsibility for National Environmental Policy Act (NEPA) compliance and preparation of the environmental impact statement for the Rosemont Copper Project.
Affirm the commitment of the Forest Service to fully consider the views of the USDI BLM in the development of the environmental impact statement for the Rosemont Copper Project.
Establish the parties' agreement and commitment to jointly review the environmental impact statement developed under NEPA for the Rosemont Copper Project.
Affirm that the Forest Service has sole and ultimate decision-making authority regarding the use of National Forest System lands for the Rosemont Copper Project.

B. BACKGROUND

The Council on Environmental Quality regulations codified at 40 C.F.R. Parts 1500-1508 apply to the Forest Service. The Forest Service also has its own regulations and policies for implementing NEPA. NEPA requires Federal agencies to prepare an environmental impact statement prior to undertaking a major Federal action significantly affecting the quality of the human environment. NEPA also requires Federal agencies to study, develop, and describe appropriate alternatives to any proposal involving unresolved conflicts concerning alternate uses of available resources. NEPA also requires disclosure of the potential impacts of the proposed action and its alternatives.

The Rosemont Copper Project was generated externally by the Rosemont Copper Company. It is a major Federal action that may significantly affect the quality of the human environment. The proposed project is construction, operation, reclamation, and closure of an open-pit mine. The proposed project also includes associated infrastructure.

As proposed, the project would be located in Pima County, Arizona approximately 30 miles southeast of Tucson, Arizona on approximately 995 acres of private land, 3,670 acres of National Forest System land, 15 acres of land administered by the USDI Bureau of Land Management, and 75 acres of State of Arizona State Trust land. Ore extraction is proposed to be conducted primarily on private lands. Ore processing, waste management, and other support facilities and infrastructure are proposed to be located on the Forest. Project infrastructure is also proposed to be located on land administered by the USDI Bureau of Land Management and the State Trust Lands.

Annual production estimates include 234 million pounds of copper, 4.5 million pounds of molybdenum, and 2.7 million ounces of silver over a period of approximately 20 years. A further summary of the proposed action is provided in the Forest Service's "Notice of Intent to Prepare an Environmental Impact Statement" published in the Federal Register on March 13, 2008 (Volume 73, Number 50, pages 13527-13529). The complete proposed action consists of the material provided by the Rosemont Copper Company identified in Forest Supervisor Derby's letter of October 19, 2007, and the 28 items responsive to her request for additional information. An electronic composite of this information has been compiled to facilitate its use. It will be
Federal - USDI Bureau of Land Management referred to hereafter as the composite Mine Plan of Operation (MPO). The composite MPO is available through links at: http:llwww.fs.fed.us/r3/coronado/rosemont/mpo.shtml.

The General Mining Act of 1872 confers a statutory right to enter upon public lands open to location in pursuit of locatable minerals, and under valid existing mining claims to conduct mining activities, in compliance with Federal and State statutes and regulations. The Multiple-Use Mining Act of 1955 confirms the ability to conduct mining activities on public lands, locate necessary facilities, and conduct reasonable and incidental uses to mining on public lands, including National Forest System lands. Forest Service mining regulations at 36 C.F.R. Part 228 Subpart A correspondingly recognizes the rights of mining claimants.

Although the Forest Service may reasonably regulate mining activities to protect surface resources, there are statutory and constitutional limits to its discretion when reviewing and approving a mining plan of operations. The Forest Service cannot categorically prohibit mining activity or deny reasonable mineral operations under the mining laws. Although selection of a no-action alternative is outside the discretion of the Forest Service Responsible Official, the impacts of no action will be disclosed in the environmental impact statement. In practice, the Forest Service works with the mining applicant to develop an acceptable, legally-compliant plan of operations as an alternative to be considered during the NEPA process, thereby precluding selection of the no-action alternative.

C. MUTUAL BENEFITS AND INTERESTS

In the interest of mutual benefits and interests, both parties wish to:

Develop procedures to ensure that each may efficiently and effectively meet its responsibilities as a public entity.
Cooperate to help achieve better outcomes while ensuring each agency's key mandates and legal requirements are adequately and appropriately met.
Communicate openly and provide a conduit for the timely exchange of information.
Provide a framework to fully consider the physical, biological, social, economic, and cultural impacts of the Rosemont Copper Project as part of their respective and collective planning and decisionmaking processes.
Resolve conflicts at the lowest administrative level without having to resort to judicial review.
Conduct a periodic review of this MOU for evaluation of its effectiveness. [ See Attachment 1 for specific information regarding MOU reviews.]

D. FOREST SERVICE RESPONSIBILITIES The Forest Service shall:

Retain its sole and ultimate decision-making authority regarding the use of National Forest System lands for the Rosemont Copper Project, using the "Rosemont Copper Project Final Environmental Impact Statement," and supporting record as the basis for determining the Final Mine Plan of Operation.
Retain its primary responsibility for NEPA compliance including, but not limited to, content of the environmental impact statement, public distribution of the "Rosemont Copper Project Draft Environmental Impact Statement" for review and comment, public distribution of other project materials, management of the comments received on the environmental impact statement, public notice and filing requirements, and arrangements associated with any public meetings to be held.
Identify any requirements necessary for compliance with the Land and Resource Management Plan for the Coronado National Forest, 1986, as amended or revised, (hereafter, Forest Plan) or to further amend the Forest Plan as needed.
Designate USDI BLM as a cooperating agency in the environmental impact statement.
Share with USDI BLM data and other information that is relevant to the development of the environmental impact statement and within USDI BLM's area of special expertise.
Hold, on its own accord or upon request, government-to-government meetings and field reviews with USDI BLM as determined appropriate, without general public notice or participation.
Confer with USDI BLM on relevant technical studies and reports that may be required for the project.
Include, to the extent feasible, sufficient documentation in the environmental impact statement and supporting record to allow use by USDI BLM to meet its compliance requirements or other responsibilities.
Request USDI BLM review internal working drafts of select portions of the environmental impact statement.
Provide USDI BLM with copies of the internal working drafts of the "Rosemont Copper Project Draft Environmental Impact Statement" and "Rosemont Copper Project Final Environmental Impact Statement" for review prior to printing of such for public distribution, and negotiate a reasonable amount of time for review.
Ensure that contributions by the USDI BLM are considered and appropriately incorporated into the project.
Notify USDI BLM of any public notices made by the Forest Service pertaining to the project.
Keep USDI BLM apprised of the project schedule and provide an updated schedule as it becomes available.
Additional responsibilities of the Forest Service in cooperating specifically with USDI BLM are contained in Attachment 1.

E. COOPERATING AGENCY RESPONSIBILITIES

The USDI BLM shall:

Perform duties of a cooperating agency under NEPA for the Rosemont Copper Project.
Participate only in those areas within its area of special expertise, unless otherwise invited by the Forest Service.
Provide the Forest Service with responses to data requests to the degree the data are reasonably available within time limits that will meet the project schedule.
Share with the Forest Service, data and other information within its area of special expertise that are or may be relevant to the development of the environmental impact statement.
Provide the Forest Service with copies of the existing and proposed laws, regulations, and policies within its area of special expertise that are or may be relevant to the project.
Explain the relationship of existing and proposed laws, regulations, and policies within its area of special expertise to the project.
Make a good faith effort to raise concerns about the project and offer solutions relative to its area of special expertise in a timely and specific manner.
Upon request, participate in government-to-government meetings and field reviews with the Forest Service, if feasible.
Review and provide written comments on internal working drafts of select portions, as deemed appropriate by the Forest Service, of the environmental impact statement, within a negotiated reasonable amount of time.
1. Review is to ensure technical accuracy and conformance with laws, regulations, and policies within USDI BLM's area of special expertise.
2. Review is to provide recommendations for improvement of reviewed internal working draft material where the materials are found to be incomplete, inadequate, or inaccurate.
Review and provide written comments on the internal working drafts of the "Rosemont Copper Project Draft Environmental Impact Statement" and "Rosemont Copper Project Final Environmental Impact Statement" prior to the Forest Service printing of such for public distribution, within a negotiated reasonable amount of time.
1. Review is to ensure technical accuracy and conformance with laws, regulations, and policies within USDI BLM's area of special expertise. .
2. Review is to provide recommendations for improvement of reviewed internal working draft material where the materials are found to be incomplete, inadequate, or inaccurate.
Provide input to and/or review responses to public comments received on the "Rosemont Copper Project Draft Environmental Impact Statement," at the request of the Forest Service.
Proceed with work as expeditiously as possible to comply with the project schedule.
Provide the Forest Service with as much advance warning as possible should budgetary or program constraints prevent the USDI BLM from fulfilling its commitments identified in this MOU.
Make the Forest Service aware if, at any point in the process, its needs are not being met.
Additional responsibilities of the USDI BLM in cooperating with the Forest Service are contained in Attachment 2.

F. MUTUAL AGREEMENT AND UNDERSTANDING

It is mutually agreed and understood by all parties that:

JURISDICTIONS. This MOU does not affect each agency's jurisdictions that exist as a matter of law.
LEAD AGENCY. The Forest Service is the Lead Federal Agency, and has the authority through the Forest Supervisor to enter into this MOU.
COOPERATING AGENCY. USDI BLM's participation in preparation of the environmental impact statement for the Rosemont Copper Project as a cooperating agency is appropriate because BLM administered lands are included in the Rosemont Project, Mine Plan of Operation and the BLM is responsible for administering the mining laws on lands under its jurisdiction [43 CFR 3809]. USDI BLM has the authority to enter into this MOU through:
1. Federal Land Policy and Management Act of 1976 (43 USC 1701, et seq.)
2. National Environmental Policy Act of 1969 (42 USC 4321)
3. Council on Environmental Quality regulations on implementing the National Environmental Policy Act at 40 CFR 1501
4. Alternative Dispute Resolution Act of 1990 (5 USC 581, et seq.)
INFORMATION MANAGEMENT. The Forest Service will share draft and deliberative materials with USDI BLM to further accomplish the purposes of this MOU in achieving the previously stated mutual benefits and interest. While the Forest Service seeks to conduct a transparent process, not all shared information may be ripe for disclosure to the public. Sometimes confusion and angst is created by the premature release of information to the public. To minimize this, the Forest Service asks that USDI BLM does not proactively make public notice of shared information. However, the Forest Service recognizes that USDI BLM may receive and process, within its authorities, external requests for information. To reduce external requests for information, the Forest Service intends to post select items of shared information that it deems ripe for public dissemination to the to the worldwide Internet at www.RosemontElS.us. Information furnished by USDI BLM in response to a formal request by the Forest Service under this MOU will become part of the Forest Service's official record and subject to public release pursuant to the Freedom of Information Act and other applicable federal statutes. To allow full and frank discussion of preliminary analysis and recommendations, meetings with cooperating agencies to review draft and deliberative materials will not be open to the public.
PARTICIPATION IN SIMILAR ACTIVITIES. This instrument in no way restricts the Forest Service or USDI BLM from participating in similar activities with other public or private agencies, organizations, and individuals. Parties to this MOU may meet separately with any other cooperating agency.
COMMENCEMENT/EXPIRATION/TERMINATION. This MOU shall be effective upon the signature of the Forest Supervisor and the USDI BLM signing official, and shall remain in effect until public release of the "Rosemont Copper Project Final Environmental Impact Statement" by the Forest Service. This MOU may be extended or amended upon written request of either party and the subsequent written concurrence of the other. Either party may terminate this MOU following the delivery of a 60-day written notice to the other.

Consistent with information tracked by the Council on Environmental Quality, below are some reasons for terminating a cooperating agency agreement:
- Cooperating agency lacks special expertise and jurisdiction by law.
- Cooperating agency lacks authority to enter into an agreement.
- Cooperating agency lacks agreement with the Lead Agency (e.g.: unable to accept the scope of the analysis or the purpose and need for the proposed action; unable to accept responsibilities and/or milestones for analysis and documentation; unable to develop information/analysis of all reasonable alternatives; unable to prevent release of predecisional information; misrepresents the process or the findings presented in the analysis and documentation).
- Cooperating agency lacks capacity (training or resources) to participate (e.g.: unable to participate during scoping and/or throughout the preparation of the analysis and documentation as necessary to meet process milestones; unable to identify significant issues, eliminate minor issues, identify issues previously studied, or identify conflicts with the objectives of regional, state, and local land use plans, policies, and controls in a timely manner; unable to assist in preparing portions of the review and analysis and to help resolve significant environmental issues in a timely manner; unable to provide resources to support scheduling and critical milestones).
RESPONSIBILITIES OF PARTIES. The Forest Service, USDI BLM, and their respective agencies and offices will oversee the activities set forth herein as individual roles and responsibilities and will utilize their own resources, including the expenditure of funds, in pursuing these objectives. Each party will carry out its separate activities in a coordinated and mutually beneficial manner. While the parties agree to make reasonable efforts to resolve procedural and substantive disagreements, the Forest Service retains final responsibility for determining the content of the environmental impact statement and its related processes.
PRINCIPAL CONTACTS. The principal contacts for this instrument are:

*Forest Service* *Project Technical Contact*	*USDI BLM* *Project Technical Contact*
Kent Ellett	Dan Moore
Acting District Ranger	USDI BLM
Nogales Ranger District	Tucson Field Office
Rosemont Copper Project	12661 East Broadway Blvd
Liaison for Utilities	Tucson, Arizona 85748
303 Old Tucson Rd.	Phone: (520) 258-7234
Nogales, AZ 85621	E-Mail: daniel_j_moore@blm.gov
Phone: 520-281-2296
Fax: 520-670-4598
E-mail: kellett@fs.fed.us

Forest Service Project Management Contact	*USDI BLM* Project Management Contact	*Alternate*
Teresa Ann Ciapusci	Dan Moore	Cindy Alvarez
Forest Service Project Manager	USDI BLM	USDI BLM
Rosemont Copper Project	Tucson Field Office	Tucson Field Office
Coronado National Forest	12661 East Broadway Blvd	12661 East Broadway Blvd
300 West Congress Street	Tucson, Arizona 85748	Tucson, Arizona 85748
Tucson, Arizona 85701	Phone: (520) 258-7234	Phone: (520) 258-7233
Phone: 520-388-8350	E-Mail: daniel_j_moore@blm.gov	E-Mail: cindy_alvarez@blm.gov
FAX: 520-388-8305
E-Mail: tciapusci@fs.fed.us

Forest Service Administrative Contact	USDI BLM Administrative Contact
Grants and Agreements Specialist	>>>> NONE <<<<
Coronado National Forest
300 West Congress Street
Tucson, Arizona 85701
Phone: 520-388-8325
FAX: 520-388-8331
E-Mail: nnorris@fs.fed.us

At its sole discretion, an above-named party may designate an alternate representative. Each agency's designated authorized representative is authorized to act in its behalf with respect to those matters contained in this MOU. Each agency may change the designation or its authorized representative upon oral notice given to the other, confirmed promptly by written notice.

Each agency may request that additional persons with special expertise attend meetings to present and discuss information. Such attendance must be requested and confirmed by the other party in writing prior to the meeting.

The Forest Service will be the main contact with the project proponent and its consultant(s) and sub-consultant(s) providing support to the project.

USDI BLM may communicate with the Forest Service's third-party environmental consultant, SWCA Environmental Consultants, only through the Forest Service's Project Management Contact representative or with specific written permission of the Forest Service Project Management Contact.

NON-FUND OBLIGATING DOCUMENT. Nothing in this MOU shall obligate either the Forest Service or USDI BLM to obligate or transfer any funds. Specific work projects or activities that involve the transfer of funds, services, or property among the various agencies and offices of the parties will require executions of separate agreements and be contingent upon the availability of appropriated funds. Such activities must be independently authorized by appropriate statutory authority. This MOU does not provide such authority. Negotiation, execution, and administration of each such agreement must comply with all applicable statutes and regulations.
ESTABLISHMENT OF RESPONSIBILITY. This MOU is not intended to, and does not create, any right, benefit, or trust responsibility, substantive or procedural, enforceable at law or equity, by a party against the United States, its agencies, its officers, or any person.
AUTHORIZED REPRESENTATIVES. By signature below, the cooperator certifies that individuals listed in this document as representatives of the cooperator are authorized to act in their respective areas for matters related to this agreement.

THE PARTIES HERETO have executed this instrument.

United States Department of the Interior		USDA FOREST SERVICE
Bureau of Land Management

	11/27/09		12/04/09
TOM DABBS	DATE	JEANINE A. DERBY	DATE
Gila District Manager		Forest Supervisor

The authority and format of this instrument has been reviewed and approved for signature.
	12/02/09
NORENE NORRIS	DATE

Attachment 1
Additional Forest Service Responsibilities for Cooperating with USDI BLM

The Forest Service will schedule and conduct a review of this Memorandum of Understanding during the months of January and July for each year this agreement is in effect. The review will include, at a minimum, participation by the USDI BLM Tucson Field Manager and the Deputy Forest Supervisor or their designee.
The Forest Service will develop a range of alternatives to the proposed action (Mine Plan of Operations) and will provide the list to USDI BLM for review and comment prior to the Forest Supervisor selection of a range of alternatives for detailed analysis.

Attachment 2

Additional USDI BLM Responsibilities for Cooperating with Forest Service

Append to Section C the following
In addition to the General Mining Act of 1872, as amended [43 CFR 38001 and the Multiple Use Mining Act of 1955 [43 CFR 37151, BLM's regulation of locatable mineral related mining activities is administered through the Federal Land Management Policy Act of 1976, as amended [43 USC 1732(b)]. This Act recognizes the entry and development rights of mining claimants while directing the Secretary of the Interior to "... by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands." This mandate is implemented through BLM's mining regulations found at 43 CFR 3715 and 3809.

Append to Section F the following additions

The BLM will exercise its authorities under 43 CFR 3715 and 3809 in reviewing the Mine Plan of Operations for completeness and ensuring that the Mine Plan of Operation meets all regulatory requirements.
After a full review of the EIS for the Rosemont Copper Project prepared by the Forest Service (with the BLM acting as a cooperating agency), the BLM will adopt the Rosemont Copper Project Environmental Impact Statement as the basis for the BLM's regulations and procedures are followed in the preparation of the EIS and that all BLM comments and suggestions have been satisfied in accordance with 40 CFR 1506.3(c).
The BLM will prepare a separate Record of Decision pertaining to the proposed activities included in the Rosemont Copper Project Mine of Operations, Electrical Power Supply Supplement in accordance with 43 CFR 3715.3-4 and 3809.411.
TRIBAL CONSULTATIONS. The BLM shall engage in government-to-government consultation with affected Indian Tribe(s) during all phases of this process, in accordance with applicable Federal statues, regulations and other authorities, including NEPA, the Federal Land Policy Management Act, the National Historic Preservation Act, the American Indian Religious Freedom Act, and Executive Order 13007 on Indian Sacred Sites. This MOU in no way affects the responsibility of BLM and the authority of affected tribe(s) to engage in these government to government consultations. To the extent BLM receives any Indian trust data as a function of the requirement to conduct government-to-government consultations with affected Indian Tribe(s), BLM certifies that it will accord such data all necessary protection and security pursuant to applicable statutes, regulations, and policies, including those set forth in the context of any applicable litigation.

Attachment 3
Description of USDI BLM's Jurisdiction

The Bureau of Land Management will exercise its authorities under 43 CFR 3809 in reviewing the Mine Plan of Operation for completeness and ensuring that the plan meets all regulatory requirements.

After a full review the environmental impact statement for the Rosemont Copper Project prepared by the Forest Service (with the Bureau acting as a Cooperating Agency), the Bureau will adopt the Rosemont Copper Project Environmental Impact Statement as the basis for the Bureau's Record of Decision [40 CFR 1506(a)]. The review will ensure that all pertinent Bureau regulations and procedures are followed in the preparation of the environmental impact statement and that all Bureau comments and suggestions have been satisfied [40 CFR 1506.3(c)].

The Bureau will prepare a separate Record of Decision pertaining to proposed activities included in the Rosemont Project, Mine Plan of Operations, Electrical Power Supply Supplement [43 CFR 3809.11].

Attachment 5
References,

Note: Full text of the below references are available at the cited source. This attachment contains only selected applicable excerpts from the primary references.

MOU Section F, Item 3
(Source: http:/lecfr.gpoaccess.gov/cgi/Utext/text-idx?c=ecfr&tpl=/ecfrbrowsetTitle43/43cfr3800_main_02.tpl)

43 CFR 3809,

3809.1 WHAT ARE THE PURPOSES OF THIS SUBPART?
The purposes of this subpart are to:

(a) Prevent unnecessary or undue degradation of public lands by operations authorized by the mining laws. Anyone intending to develop mineral resources on the public lands must prevent unnecessary or undue degradation of the land and reclaim disturbed areas. This subpart establishes procedures and standards to ensure that operators and mining claimants meet this responsibility ...

3809.2 WHAT IS THE SCOPE OF THIS SUBPART?

This subpart applies to all operations authorized by the mining laws on public lands where the mineral interest is reserved to the United States....
This subpart does not apply to lands in the ... National Forest System ....
This subpart does not apply to private land except as provided in paragraphs (a) and (c) of this section. For purposes of analysis under the National Environmental Policy Act of 1969, BLM may collect information about private land that is near to, or may be affected by, operations authorized under this subpart.
This subpart applies to operations that involve locatable minerals, including metallic minerals; some industrial minerals, ....

3809.200 WHAT KINDS OF AGREEMENTS MAY BLM AND A STATE MAKE UNDER THIS SUBPART?

To prevent unnecessary administrative delay and to avoid duplication of administration and enforcement, BLM and a State may make the following kinds of agreements:

An agreement to provide for a joint Federal/State program; and
An agreement under §3809.202 which provides that, in place of BLM administration, BLM defers to State administration of some or all of the requirements of this subpart subject to the limitations in §3809.203.

3809.201 WHAT SHOULD THESE AGREEMENTS ADDRESS?

(a) The agreements should provide for maximum possible coordination with the State to avoid duplication and to ensure that operators prevent unnecessary or undue degradation of public lands. Agreements should cover any or all sections of this subpart and should consider, at a minimum, common approaches to review of plans of operations, including effective cooperation regarding the National Environmental Policy Act; performance standards; interim management of temporary closure; financial guarantees; inspections; and enforcement actions, including referrals to enforcement authorities. BLM and the State should also include provisions for the regular review or audit of these agreements.

3809.202 UNDER WHAT CONDITIONS WILL BLM DEFER TO STATE REGULATION OF OPERATIONS?

(a) State request. A State may request BLM enter into an agreement for State regulation of operations on public lands in place of BLM administration of some or all of the requirements of this subpart. The State must send the request to the BLM State Director with jurisdiction over public lands in the State.

3809.203 WHAT ARE THE LIMITATIONS ON BLM DEFERRAL TO STATE REGULATION OF OPERATIONS?
Any agreement between BLM and a State in which BLM defers to State regulation of some or all operations on public lands is subject to the following limitations:

Plans of Operations. BLM must concur with each State decision approving a plan of operations to assure compliance with this subpart, and BLM retains responsibility for compliance with the National Environmental Policy Act (NEPA). The State and BLM may decide who will be the lead agency in the plan review process, including preparation of NEPA documents.
Federal land-use planning and other Federal laws. BLM will continue to be responsible for all land-use planning on public lands and for implementing other Federal laws relating to the public lands for which BLM is responsible.
Federal enforcement. BLM may take any authorized action to enforce the requirements of this subpart or any term, condition, or limitation of a notice or an approved plan of operations. BLM may take this action regardless of the nature of its agreement with a State, or actions taken by a State.

3809.204 DOES THIS SUBPART CANCEL AN EXISTING AGREEMENT BETWEEN BLM AND A STATE?

(a) No, this subpart doesn't cancel a Federal/State agreement or memorandum of understanding in effect on January 20, 2001........

40 CFR 1506
1506.1 Limitations on Actions During NEPA Process

Until an agency issues a record of decision as provided in Sec. 1505.2 (except as provided in paragraph (c) of this section), no action concerning the proposal shall be taken which would:
1. Have an adverse environmental impact; or
2. Limit the choice of reasonable alternatives.
If any agency is considering an application from a non-Federal entity, and is aware that the applicant is about to take an action within the agency's jurisdiction that would meet either of the criteria in paragraph (a) of this section, then the agency shall promptly notify the applicant that the agency will take appropriate action to insure that the objectives and procedures of NEPA are achieved.
While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not undertake in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action:
1. Is justified independently of the program;
2. Is itself accompanied by an adequate environmental impact statement; and
3. Will not prejudice the ultimate decision on the program. Interim action prejudices the ultimate decision on the program when it tends to determine subsequent development or limit alternatives.
(d) This section does not preclude development by applicants of plans or designs or performance of other work necessary to support an application for Federal, State or local permits or assistance

1506.2 ELIMINATION OF DUPLICATION WITH STATE AND LOCAL PROCEDURES.

Agencies authorized by law to cooperate with State agencies of statewide jurisdiction pursuant to section 102(2)(D) of the Act may do so.
Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements, unless the agencies are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include:
1. Joint planning processes.
2. Joint environmental research and studies.
3. Joint public hearings (except where otherwise provided by statute).
4. Joint environmental assessments.
Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements, unless the agencies are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include joint environmental impact statements. In such cases one or more Federal agencies and one or more State or local agencies shall be joint lead agencies. Where State laws or local ordinances have environmental impact statement requirements in addition to but not in conflict with those in NEPA, Federal agencies shall cooperate in fulfilling these requirements as well as those of Federal laws so that one document will comply with all applicable laws.
To better integrate environmental impact statements into State or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law.

1506.3 ADOPTION

An agency may adopt a Federal draft or final environmental impact statement or portion thereof provided that the statement or portion thereof meets the standards for an adequate statement under these regulations.
If the actions covered by the original environmental impact statement and the proposed action are substantially the same, the agency adopting another agency's statement is not required to recirculate it except as a final statement. Otherwise the adopting agency shall treat the statement as a draft and recirculate it (except as provided in paragraph (c) of this section).
A cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied.
When an agency adopts a statement which is not final within the agency that prepared it, or when the action it assesses is the subject of a referral under Part 1504, or when the statement's adequacy is the subject of a judicial action which is not final, the agency shall so specify.

1506.4 COMBINING DOCUMENTS.

Any environmental document in compliance with NEPA may be combined with any other agency document to reduce duplication and paperwork.

1506.5 AGENCY RESPONSIBILITY.

(a) Information. If an agency requires an applicant to submit environmental information for possible use by the agency in preparing an environmental impact statement, then the agency should assist the applicant by outlining the types of information required. The agency shall independently evaluate the information submitted and shall be responsible for its accuracy. If the agency chooses to use the information submitted by the applicant in the environmental impact statement, either directly or by reference, then the names of the persons responsible for the independent evaluation shall be included in the list of preparers (Sec. 1502.17). It is the intent of this paragraph that acceptable work not be redone, but that it be verified by the agency.

(c) Environmental impact statements. Except as provided in Secs. 1506.2 and 1506.3 any environmental impact statement prepared pursuant to the requirements of NEPA shall be prepared directly by or by a contractor selected by the lead agency or where appropriate under Sec. 1501.6(b), a cooperating agency. It is the intent of these regulations that the contractor be chosen solely by the lead agency, or by the lead agency in cooperation with cooperating agencies, or where appropriate by a cooperating agency to avoid any conflict of interest. Contractors shall execute a disclosure statement prepared by the lead agency, or where appropriate the cooperating agency, specifying that they have no financial or other interest in the outcome of the project. If the document is prepared by contract, the responsible Federal official shall furnish guidance and participate in the preparation and shall independently evaluate the statement prior to its approval and take responsibility for its scope and contents. Nothing in this section is intended to prohibit any agency from requesting any person to submit information to it or to prohibit any person from submitting information to any agency.

1506.6 PUBLIC INVOLVEMENT.
Agencies shall:

Make diligent efforts to involve the public in preparing and implementing their NEPA procedures.
Provide public notice of NEPA-related hearings, public meetings, and the availability of environmental documents so as to inform those persons and agencies who may be interested or affected.
1. 1. In all cases the agency shall mail notice to those who have requested it on an individual action.
2. In the case of an action with effects of national concern notice shall include publication in the Federal Register and notice by mail to national organizations reasonably expected to be interested in the matter ...
3. In the case of an action with effects primarily of local concern the notice may include:
  1. Notice to State and areawide clearinghouses pursuant to OMB Circular A- 95 (Revised).
  2. Notice to Indian tribes when effects may occur on reservations.
  3. Following the affected State's public notice procedures for comparable actions.
  4. Publication in local newspapers (in papers of general circulation rather than legal papers).
  5. Notice through other local media.
  6. Notice to potentially interested community organizations including small business associations.
  7. Publication in newsletters that may be expected to reach potentially interested persons.
  8. Direct mailing to owners and occupants of nearby or affected property.
  9. Posting of notice on and off site in the area where the action is to be located.
Hold or sponsor public hearings or public meetings whenever appropriate or in accordance with statutory requirements applicable to the agency. Criteria shall include whether there is:
1. Substantial environmental controversy concerning the proposed action or substantial interest in holding the hearing.
2. A request for a hearing by another agency with jurisdiction over the action supported by reasons why a hearing will be helpful. If a draft environmental impact statement is to be considered at a public hearing, the agency should make the statement available to the public at least 15 days in advance (unless the purpose of the hearing is to provide information for the draft environmental impact statement).
Solicit appropriate information from the public.
Explain in its procedures where interested persons can get information or status reports on environmental impact statements and other elements of the NEPA process.
Make environmental impact statements, the comments received, and any underlying documents available to the public pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552), without regard to the exclusion for interagency memoranda where such memoranda transmit comments of Federal agencies on the environmental impact of the proposed action. Materials to be made available to the public shall be provided to the public without charge to the extent practicable, or at a fee which is not more than the actual costs of reproducing copies required to be sent to other Federal agencies, including the Council.

1506.9 FILING REQUIREMENTS.

Environmental impact statements together with comments and responses shall be filed with the Environmental Protection Agency, attention Office of Federal Activities (A-104), 401 M Street SW., Washington, DC 20460. Statements shall be tiled with EPA no earlier than they are also transmitted to commenting agencies and made available to the public. EPA shall deliver one copy of each statement to the Council, which shall satisfy the requirement of availability to the President. EPA may issue guidelines to agencies to implement its responsibilities under this section and Sec. 1506.10.

1506.10 TIMING OF AGENCY ACTION.

The Environmental Protection Agency shall publish a notice in the Federal Register each week of the environmental impact statements filed during the preceding week. The minimum time periods set forth in this section shall be calculated from the date of publication of this notice.
No decision on the proposed action shall be made or recorded under Sec. 1505.2 by a Federal agency until the later of the following dates:
1. Ninety (90) days after publication of the notice described above in paragraph (a) of this section for a draft environmental impact statement.
2. Thirty (30) days after publication of the notice described above in paragraph (a) of this section for a final environmental impact statement. An exception to the rules on timing may be made in the case of an agency decision which is subject to a formal internal appeal. Some agencies have a formally established appeal process which allows other agencies or the public to take appeals on a decision and make their views known, after publication of the final environmental impact statement. In such cases, where a real opportunity exists to alter the decision, the decision may be made and recorded at the same time the environmental impact statement is published.
This means that the period for appeal of the decision and the 30-day period prescribed in paragraph (b)(2) of this section may run concurrently. In such cases the environmental impact statement shall explain the timing and the public's right of appeal....
(c) If the final environmental impact statement is filed within ninety (90) days after a draft environmental impact statement is filed with the Environmental Protection Agency, the minimum thirty (30) day period and the minimum ninety (90) day period may run concurrently.

However, subject to paragraph (d) of this section agencies shall allow not less than 45 days for comments on draft statements.
The lead agency may extend prescribed periods. The Environmental Protection Agency may upon a showing by the lead agency of compelling reasons of national policy reduce the prescribed periods and may upon a showing by any other Federal agency of compelling reasons of national policy also extend prescribed periods, but only after consultation with the lead agency. (Also see Sec. 1507.3(d).) Failure to file timely comments shall not be a sufficient reason for extending a period. If the lead agency does not concur with the extension of time, EPA may not extend it for more than 30 days. When the Environmental Protection Agency reduces or extends any period of time it shall notify the Council.

MOU Attachment 3
(Source: http:llecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowselTitle43/43cfr3800_main_02.tpl)

43 CFR 3809
3809.1 WHAT ARE THE PURPOSES OF THIS SUBPART?
The purposes of this subpart are to:

3809.2 WHAT IS THE SCOPE OF THIS SUBPART?

This subpart applies to all operations authorized by the mining laws on public lands where the mineral interest is reserved to the United States....
This subpart does not apply to lands ... National Forest System ...
This subpart does not apply to private land except as provided in paragraphs (a) and (c) of this section. For purposes of analysis under the National Environmental Policy Act of 1969, BLM may collect information about private land that is near to, or may be affected by, operations authorized under this subpart.
This subpart applies to operations that involve locatable minerals, including metallic minerals

3809.111 WILL BLM DISCLOSE TO THE PUBLIC THE INFORMATION I SUBMIT UNDER THIS SUBPART?

Part 2 of this title applies to all information and data you submit under this subpart. If you submit information or data under this subpart that you believe is exempt from disclosure, you must mark each page clearly "CONFIDENTIAL INFORMATION." You must also separate it from other materials you submit to BLM. BLM will keep confidential information or data marked in this manner to the extent required by part 2 of this title. If you do not mark the information as confidential, BLM, without notifying you, may disclose the information to the public to the full extent allowed under part 2 of this title.

3809.415 How DO I PREVENT UNNECESSARY OR UNDUE DEGRADATION WHILE CONDUCTING OPERATIONS ON PUBLIC LANDS?

You prevent unnecessary or undue degradation while conducting operations on public lands by‑

Complying with §3809.420, as applicable; the terms and conditions of your notice or approved plan of operations; and other Federal and State laws related to environmental protection and protection of cultural resources;
Assuring that your operations are "reasonably incident" to prospecting, mining, or processing operations and uses as defined in §3715.0-5 of this title; and
Attaining the stated level of protection or reclamation required by specific laws in areas such as ... National Conservation Areas.

3809.605 WHAT ARE PROHIBITED ACTS UNDER THIS SUBPART?

Prohibited acts include, but are not limited to, the following:

Causing any unnecessary or undue degradation;
Beginning any operations, other than casual use, before you file a notice as required by §3809.21 or receive an approved plan of operations as required by §3809.412;
Conducting any operations outside the scope of your notice or approved plan of operations;
Beginning operations prior to providing a financial guarantee that meets the requirements of this subpart;
Failing to meet the requirements of this subpart when you stop conducting operations under a notice (§3809.334), when your notice expires (§3809.335), or when you stop conducting operations under an approved plan of operations (§3809.424);
Failing to comply with any applicable performance standards in §3809.420;
Failing to comply with any enforcement actions provided for in §3809.601; or
Abandoning any operation prior to complying with any reclamation required by this subpart or any order provided for in §3809.601.

(Source: http:/lceq.hss.doe.gov/nepa/regs/ceq/I506.htm)
40 CFR 1506(A)
Agencies shall:

(a) Make diligent efforts to involve the public in preparing and implementing their NEPA procedures.

40 CFR 1506.3 (C)
(c) A cooperating agency may adopt without recirculating the environmental impact statement of a lead agency when, after an independent review of the statement, the cooperating agency concludes that its comments and suggestions have been satisfied.

(Source: http:/lecfr.gpoaccess.gov/cgi/Utext/text-idx?c=ecfr&tpl=/ecfrbrowsefritIe43/43cfr3800_main_02.tpI)
43 CFR 3809.11. WHEN DO I HAVE TO SUBMIT A PLAN OF OPERATIONS?

You must submit a plan of operations and obtain BLM's approval before beginning operations greater than casual use, except as described in 3809.21. Also see 3809.31 and 3809.400 through 3809.434.
You must submit a plan of operations for any bulk sampling in which you will remove 1,000 tons or more of presumed ore for testing.
You must submit a plan of operations for any operations causing surface disturbance greater
than casual use in the following special status areas where 3809.21 does not apply:
Areas designated as closed to off-road vehicle use, as defined in 8340.05 of this title;
Any lands or waters known to contain Federally proposed or listed threatened or endangered species or their proposed or designated critical habitat, unless BLM allows for other action under a formal land-use plan or threatened or endangered species recovery plan; and
... National Conservation Areas administered by BLM.

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