Notifying Tribal Governments of the Bureau of Land Management's receipt of exploration notices under 43 CFR Part 3809; Surface Management
3809 (HQ-320) P
During listening sessions conducted by the Interagency Working Group on Mining Regulations, Laws, and Permitting (IWG) in July 2022, Tribal Governments expressed concern about lack of early communication from BLM Field Offices (FO) regarding mining and exploration projects, including those authorized under the surface management regulations at 43 CFR Part 3809. These concerns were described in the 2023 Report to Congress that the IWG prepared under Section 40206 of the Bipartisan Infrastructure Law. The IWG report to Congress also included recommendations to address the Tribes’ concerns.
The purpose of this Instruction Memorandum (IM) is to establish guidance for actions the Bureau of Land Management (BLM) will take to implement the 2023 IWG report’s recommendation that addresses the Tribes’ concerns regarding lack of communication about new exploration notices under 43 CFR Part 3809 by creating a new BLM Tribal notification program. Unlike plans of operations, notice-level exploration operations under 43 CFR 3809.301 are not Federal undertakings, do not require environmental analysis under the National Environmental Policy Act (NEPA), or consultation under the Endangered Species Act (ESA) or the National Historic Preservation Act (NHPA), and do not result in formal Tribal consultation. Notice level exploration activities can include, but are not limited to, using mechanized earth-moving equipment, truck-mounted drilling equipment, or similar devices that create less than 5-acres of disturbance, to conduct sampling or drilling for mineral samples to evaluate the type, extent, quantity, or quality of minerals and mineral values present. Please refer to notice level operations descriptions at 43 CFR 3809.10(b) and 3809.21 for additional information. No mining production can occur at the notice level of operations stage. The BLM reviews notices for completeness within 15 calendar days of receipt. The 15-day review allows the BLM to review notices to ensure that they meet the requirements of 43 CFR 3809.301 and that no unnecessary or undue degradation will occur, as set forth in 43 CFR 3809.5, 3809.415, and 3809.420. Unless BLM notifies the operator of an issue, the operator can proceed with exploration once they have a bond in place.
The BLM Tribal notification program aims to make Tribes aware of notice-level exploration activities on public lands.
Mission
This IM describes BLM national policy requirement for informing Tribal Governments of new notice-level operations under 43 CFR 3809.301.
When a BLM FO receives a notice under 43 CFR 3809.301, the FO will send a notification letter to each Tribe that has historically expressed an interest in that area or adjacent vicinity during previous BLM projects. Considerations for identifying which Tribes have historically expressed interest in that area include, but are not limited to, previous government-to-government consultation records, correspondence from the Tribes, the Indian Claims Commission maps, existing ethnographic/ethnohistoric studies, and advice from BLM cultural resources staff.
The FO will use the Tribal notification letter template (Attachment 1), along with a map(s) of the exploration area and FAQs (Attachment 2) as attachments to the letter, and send the notification using the contact method preferences of each Tribe. If the operator provided map(s) containing proprietary information (see 43 CFR 3809.111), the FO can either redact that information from the map or create a new map for attachment to the letter. The FO will send out a notification letter within five calendar days of receiving a notice, without regard to whether the notice has been determined to be complete. The FO should place a copy of the letter in the notice case folder, along with any Tribal response(s).
Tribal notification under this IM does not constitute acceptance of the notice-level operations or otherwise change the regulations at 43 CFR 3809.312(a), and does not constitute formal government-to-government consultation.
This policy is effective immediately.
No significant budget impacts are anticipated
The 2023 IWG report contained several recommendations that would support increased Tribal awareness of proposed and ongoing mining operations in a particular geographic area, particularly notice-level exploration operations under 43 CFR 3809.301. On pages 117 to 118 of the 2023 report, the IWG stated its belief that “the current processes for notice-level operations provide inadequate public notice and opportunity for comment or engagement. Notice-level operations can create or exacerbate conflict because these operations are not subject to NEPA, and therefore not noticed to the public through existing NEPA processes. Potentially affected parties may therefore only learn of these operations when they see activity commence."
The IWG report acknowledged that the BLM usually only provides opportunities for public comment at the prescribed NEPA process points, with no requirement for public engagement prior to or outside of designated portions of the NEPA process. For notice level operations under 43 CFR 3809.300, there is no discretionary agency action and, therefore, no obligation to conduct NEPA analysis, consult under the ESA, or consult under Executive Orders on Tribal consultation. Field offices may make information about such exploration notices available in their public rooms, but unless an operator voluntarily conducts outreach, the public and Tribes are unlikely to be made aware of impending notice-level operations until activity has commenced.
The IWG report noted that all exploration notices under 43 CFR 3809.300 are recorded in the BLM’s publicly accessible database, the Mineral and Lands Records System (MLRS). However, MLRS does not currently contain a searchable map function and public users must have a significant familiarity with exploration and mining operations, operators, the Public Land Survey System, and more in order to determine when exploration notices are submitted in a particular area. MLRS also does not currently contain a function for users to receive notifications when the BLM receives new exploration notices.[1] In some instances, Tribes may not find out that BLM has received or acknowledged an exploration notice until exploration operations begin, and even then, only if the operations themselves are observed.
Although some companies may provide information to Tribes about their exploration operations before surface disturbance begins, Tribes would not generally receive any information about exploration notices from the Federal government. Unless and until an operator submits a plan of operations, Tribes and other communities are often unaware of exploration and mining-related activities happening on public lands. Under the current system, Tribes have limited opportunities to provide constructive feedback to operators earlier in the development process (pre-planning and prior to the submittal of a plan of operations), when such feedback could meaningfully shape mine plans to avoid or minimize impacts to Tribal resources and interests.
This policy will provide for better communication with Tribal governments, reducing confusion and initiating early dialogue to resolve time consuming conflict that can occur later in the process. Notifying Tribes of exploration notices that the BLM receives will provide Tribes with information on newly proposed exploration activities and their locations.
The expected result of this policy—along with specifying that the BLM is also available to meet with Tribes and Tribal government representatives as part of pre-plan submittal coordination—is that operators will have early access to information from interested Tribal Nations that may assist them in formulating plans of operations that Tribes may support, thereby potentially reducing processing timeframes and potential conflicts.
[1] BLM has made improvements to the information available by building a new standard report on the National Application Reporting System that displays only mining information to simplify access to tabular case data. And, BLM has published a GIS data set with this mining specific data on the BLM geospatial Hub site. This will give users easier access to view information on a map. BLM acknowledges that there is still work to be done and may reconsider this IM when additional improvements to MLRS are complete. The IWG also recommended the development of an online system for Tribal notifications, under which Tribes could identify areas of interest and automatically receive updates regarding proposed operations. Once such a system is developed and operational, this IM will also be reconsidered.
Manual Section – 3809 – Surface Management (MS-3809) at Section 2.2 (page 2-1), rel. 3-335; Surface Management Handbook (H-3809-1) at Section 3.2 (page 3-3), rel. 3-336.
If you have any questions or comments regarding this IM, please contact Kirk N. Rentmeister, Division of Solid Minerals (HQ-320), at 775-453-5514 or krentmei@blm.gov.
This IM was coordinated by the HQ Division of Solid Minerals (HQ-320).