USFS frames the update as both a modernization and an efficiency measure: the agency seeks to “improve the efficiency and transparency” of its regulation of locatable mineral operations on National Forest System lands while “minimiz[ing], to the fullest extent practicable, adverse impacts on surface resources,” and to do so in closer alignment with the Bureau of Land Management (BLM). USFS also links the proposal to executive‑branch priorities to streamline permitting and bolster domestic mineral supply chains. USDA Forest Service News Release, U.S. Forest Service seeks public comment on proposed mineral operations rule revisions[1].

Background—How the Current Rule Works

Since 1974, the Forest Service’s locatable minerals program has regulated surface use and occupancy for mining on National Forest System lands under 36 C.F.R. part 228, subpart A. Under that framework, an operator could submit a Notice of Intent for activity that might cause disturbance; if the District Ranger determined an operation was “likely to cause a significant disturbance of surface resources,” the operator had to submit a Plan of Operations (PoO) for approval before proceeding. That significant‑disturbance test—adopted in a different era—has been criticized as subjective, slowing reviews and producing inconsistent outcomes across forests. USFS reports that from 2004–2019 it processed 3,171 PoOs, most disturbing less than five acres, often for short‑term exploration; GAO has also highlighted backlogs and delays from incomplete filings. The 2026 proposal targets those issues by replacing the subjective trigger with objective criteria (including a >5‑acre threshold) and by requiring pre‑submittal meetings and completeness checks before NEPA begins.

What’s New in the Proposed Rule

The centerpiece of the proposed rule is a tiered review framework that replaces the 1970s standard with specific, activity‑based thresholds: “The Forest Service proposes to replace the existing subjective threshold of ‘likely to cause a significant disturbance of surface resources’ with a threshold comprising specific requirements.” Under the new criteria, “operations resulting in surface disturbance greater than 5 acres,” “operations other than exploratory or investigative operations,” and certain resource‑protection circumstances would require a PoO. 91 Fed. Reg. at 8317.

For activities below those thresholds, USFS proposes a new Operating Notice: operations that do not meet PoO criteria—but are more than “no‑notice”—would file an Operating Notice “which can be prepared by operators and reviewed by the Agency much more quickly and efficiently.” USFS estimates an “annual average of 62 operations that currently require a plan of operations would be conducted under an operating notice” if the proposed rule is adopted. 91 Fed. Reg. at 8317.

To reduce delays caused by incomplete submissions, USFS would strengthen the front end of its review process. The rule would require a pre‑submittal meeting for Operating Notices and PoOs, adopt a detailed information list, and require the agency to confirm completeness before initiating any required NEPA analysis—measures intended to improve plan quality and shorten review times. 91 Fed. Reg. at 8317-8318.

The proposal also modernizes terminology (adding twelve definitions, including “exploration,” “geotechnical and water resource investigations,” “financial assurance,” “reasonably incident uses,” and “reclamation”) and seeks closer alignment with BLM’s surface‑management framework to minimize confusion for operators whose projects span multiple federal authorities—such as claims or drill pads on National Forest System lands with access roads, power lines, or staging areas crossing onto BLM‑managed lands (or vice versa). 91 Fed. Reg. at 8319–8321.

Finally, USFS proposes enhanced operating standards, clearer modification procedures, stronger enforcement, and updated financial assurance rules—including how bonds are established, maintained, and released.

Why It Matters in Idaho and the West

For exploration teams planning short‑season programs across Idaho’s Boise, Payette, Salmon–Challis, Idaho Panhandle, or other National Forests—and for projects that touch the Humboldt–Toiyabe in Nevada—the proposed Operating Notice track may make the difference between mobilizing on time and missing the season. Short of the five‑acre disturbance threshold, a well‑documented notice and a productive pre‑submittal meeting may advance a drill campaign by weeks, especially when weather windows are tight. USFS estimates that approximately 62 plans per year would shift from PoO to Operating Notice, which signals a meaningful change in administrative throughput for lower‑impact exploration work.

USFS also aims to harmonize its surface‑management approach with BLM, reducing cross-agency inconsistencies for operators whose footprints straddle federal jurisdictions—common in Idaho/Nevada corridors where access roads, staging areas, or power lines cross national forest boundaries.

Environmental Performance: Water, Monitoring, Reclamation, and Bonding

The proposed rule pairs streamlining with specific operational upgrades: it would codify surface‑resource protection and operating standards (including how to modify approvals), elevate water protection by calling for geotechnical and water‑resource investigations and for monitoring plans to be addressed in submissions where applicable, enhance enforcement procedures, and modernize financial assurance—setting clearer rules for establishing, maintaining, and releasing bonds so reclamation and long‑term obligations are funded. It also installs front‑end quality controls—a pre‑submittal meeting, a detailed information list, and a completeness determination before NEPA—to reduce delays from incomplete submissions.

Practically, exploration companies should budget and schedule for baseline hydro‑geotechnical work (e.g., desktop hydrogeology, spring/stream reconnaissance, and monitoring approaches appropriate to the site) and build a documented water‑monitoring plan into their Operating Notice/PoO packages—steps that were often handled informally or later in the process under the 1974 framework. Companies should expect to integrate field‑season water sampling and reporting milestones alongside drill mobilization so that monitoring and reclamation commitments are traceable from day one.

NEPA and ESA Under the Proposed Rule

A PoO approval remains a federal authorization, ordinarily a “major Federal action” that triggers NEPA review and—in cases where the project may affect a listed species or designated critical habitat—Endangered Species Act (ESA) Section 7 consultation with U.S. Fish and Wildlife Service (USFWS) or National Marine Fisheries Service. In contrast, a properly scoped Operating Notice that does not require a formal federal authorization may, in some cases, not require NEPA review under CEQ’s “substantial Federal control and responsibility” standard; still, USFS retains discretion to elevate to a PoO when resource‑protection criteria are implicated.

“No‑notice” activity is not “no‑risk.” Operators always remain subject to ESA Section 9’s prohibition on unauthorized “take.” Where incidental take cannot be avoided and there is no federal action to support Section 7 consultation, the non‑federal pathway is an ESA Section 10 incidental take permit supported by a habitat conservation plan.

Early utilization of the USFWS’ Information for Planning and Consultation (IPaC) tool and other desktop environmental screens will benefit operators, who can use the results to refine pad locations, access routes, and timing to avoid or minimize “may affect” scenarios. Operators can then bring that analysis—maps, species lists, avoidance measures, and design alternatives—to the pre‑submittal meeting so ESA/NEPA issues are surfaced early enough to keep the project on schedule.

Policy Backdrop: Streamlining and Critical Minerals

USFS’s February 19, 2026 news release emphasizes that the proposed rule is “designed to streamline review procedures and improve customer service” while supporting executive orders on “Unleashing American Energy,” a “National Energy Emergency,” and “Immediate Measures to Increase American Mineral Production.” At the same time, the agency stresses, “This isn’t about relaxing the rules,” but about clarity, efficiency, and alignment with BLM. The proposed rule’s preamble likewise underscores the dual goals: efficiency/transparency and minimizing adverse surface impacts, together with supporting strategic and critical minerals policy.  USDA Forest Service News Release, Feb. 19, 2026; 91 Fed. Reg. 8316.

Early coverage reported mixed reactions—some highlighting improved oversight and GAO‑responsive process fixes, others concerned about reduced public participation in the lighter review tracks—underscoring that how forests exercise elevation discretion will draw scrutiny. See Bobby Magill, Forest Mine Rule Offers Greater Oversight, Divides Green Groups, Bloomberg Law; U.S. Government Accountability Office[2], Hardrock Mining: BLM and Forest Service Have Taken Some Actions to Expedite the Mine Plan Review Process but Could Do More[3].

How Idaho‑ and Nevada‑Focused Explorers Can Prepare Now

For exploration companies planning 2026 and 2027 field programs, several practical steps follow directly from the proposed rule’s structure. First, map each project to the appropriate review track and build a contemporaneous record supporting that placement—documenting why an activity qualifies for an Operating Notice (e.g., less than five acres of disturbance, exploratory scope, and initial resource screens)—and bring that analysis to the pre‑submittal meeting (disturbance tables, IPaC results, cultural checks, and a reclamation approach keyed to the proposal’s definitions). This supports use of the lighter track and expedites NEPA if elevation to a PoO is later required.

Second, treat bonding and water protection as front‑end design variables: anticipate more explicit monitoring commitments and reclamation detail at the outset, and be prepared to discuss financial assurance—including, where appropriate, trust‑style mechanisms—before fieldwork begins.

Third, where footprints span both BLM and USFS, use the alignment objective to standardize disturbance accounting, BMPs, and reclamation specifications across agencies (translated into each agency’s forms) to reduce iterative requests and keep short western field seasons on track.

Bottom Line

If adopted substantially as proposed, USFS’s rule will give exploration teams in Idaho and the broader West clear thresholds, a workable Operating Notice review track, modernized standards and enforcement, and closer BLM alignment—all of which should reduce uncertainty and help time‑sensitive programs mobilize on schedule. In exchange, USFS is asking for front‑loaded diligence and predictable environmental performance, especially around water and bonding. For companies already operating to contemporary best practices, that is a practical trade that supports both project delivery and resource protection on National Forest System lands.

[1] https://www.fs.usda.gov/about-agency/newsroom/releases/us-forest-service-seeks-public-comment-proposed-mineral-operations (Feb. 19, 2026)

[2] https://news.bloomberglaw.com/environment-and-energy/forest-mine-rule-offers-greater-oversight-divides-green-groups (Mar. 12, 2026)

[3] GAO-16-165 (Feb. 22, 2016)

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Imagine you’re running late for a flight. You get into the TSA line, which snakes longer than expected. People fumble with their countless carry-ons, one person argues about the “new” twenty-year-old liquid restriction, and you worry you’ll miss your departure—yet you wouldn’t skip the safety checks. That’s what permitting often feels like: urgent projects—mines, transmission lines, power generation—are waiting for security to clear while the line moves at a snail’s pace.

National leaders and state governments increasingly recognize that we need to open more “TSA Pre-Check lanes” in our permitting process. In Idaho, the Strategic Permitting, Efficiency, and Economic Development Executive Order (the “Idaho SPEED Act”) tried to do just that. At the federal level, Executive Orders (“EO”) 14,241 and 14,285 are expanding fast-track permitting lanes to critical-mineral projects via FAST-41. Congress is weighing in too, with its own proposed SPEED Act. This article takes you through those developments (current as of the date of this submission), shares what’s already moving (some mines are now in FAST-41), and discusses the challenge of speeding up projects while maintaining environmental and climate protections.

Federal Action: Executive Orders, FAST-41, and Visible Movement

10 years ago, Congress enacted Fixing America’s Surface Transportation Act. Title 41 of this Act—known as FAST-41—created a coordinated process for major federal projects. Think of it like a CLEAR lane at the airport: the security screening still happens, but with streamlined scheduling, clearer accountability, and frequent status updates—getting you through faster without cutting corners.[1] Yet critical mineral projects were largely excluded from the express lane.

To address this, on March 20, 2025, Executive Order 14241, Immediate Measures to Increase American Mineral Production, declared mineral development a national priority and directed federal agencies to prioritize and accelerate permitting for critical mineral projects by enhancing interagency coordination, removing procedural bottlenecks, and leveraging existing authorities to shorten review times.[2] With clear milestones and strengthened collaboration, the EO seeks to fast-track previously slow-moving projects to support national supply chain resilience and security objectives.

On April 24, 2025, Executive Order 14285, Unleashing America’s Offshore Critical Minerals and Resources, extended this urgency to seabed minerals.[3] Agencies were told to coordinate, expedite exploration, and support offshore processing.

The Critiques: Deep-Sea Mining and Environmental Guardrails

Not everyone is cheering on the faster pace. Deep-sea mining, in particular, has sparked concern among marine scientists and environmental advocates. The ocean floor contains critical minerals but extracting them could disrupt fragile ecosystems that play a role in carbon sequestration and biodiversity.[4] If permitting timelines compress without sufficient environmental safeguards, opponents fear irreversible harm.[5]

Similarly, climate change advocates warn that “speed” should not be code for reduced oversight. Building out critical-mineral capacity for renewable energy is essential—but so is ensuring that the process aligns with greenhouse-gas reduction goals and avoids displacing communities or damaging watersheds. The challenge is to have the equivalent of TSA Pre-Check: faster processing for those prepared and vetted, not skipping the metal detector entirely.

Results: Moving Projects Along

Since these EOs, several domestic critical-mineral projects (including some in Idaho) have earned FAST-41 “covered” status.[6] That means they now pass through a better-managed process—still thorough, but less winding.

State Action: Idaho’s SPEED Council—Paper Plans, No Fuel

In Idaho, Governor Brad Little created the SPEED Council on January 24, 2025, to streamline permitting for energy and infrastructure projects, with interagency timetables and a single coordinating body.[7] It was a move to open a new express lane in the state’s “security line.”

But when the 2025 Legislature adjourned, funding for the Council wasn’t approved.[8] The express lane is drafted—but there’s no backing to hire staff or convene the Council. The intent is clear, but the power to run it is missing.

Even unfunded, the SPEED Council shows Idaho is primed for action. Should federal momentum continue, once the legislature funds it, Idaho could align with national “express lane” practices—making the wait less painful for developers and regulators alike.

Federal SPEED Act: Codifying the Express Lane

In July 2025, Reps. Westerman (R-AR) and Golden (D-ME) introduced the Standardizing Permitting and Expediting Economic Development (“SPEED”) Act (H.R. 4776).[9] Key features include limiting NEPA review strictly to impacts directly connected to the project, enforcing deadlines for agency decisions, and encouraging courts to defer to agencies that meet those timelines.

If passed, SPEED would codify the expedited process into law, giving it legal staying power. Critics warn, however, that narrowing NEPA scope could overlook indirect but significant environmental impacts.[10]

Why Speed and Safety Must Coexist: From TSA Nightmares to Pre-Check Efficiency

America’s challenge with mineral development and energy infrastructure isn’t a shortage of capital or good ideas—it’s sluggish governance and cumbersome processes that slow essential projects. Mining and clean energy development depend on timely, yet thoughtful, action. The key is creating the right “express lane” approach: fast, predictable permitting timelines paired with robust environmental review. Speed should not come at the expense of the environment or climate goals.

Policymakers are starting to recognize this need. Idaho’s SPEED Council, federal Executive Orders, FAST-41 designations, and the proposed SPEED Act all reflect efforts to open speedier permitting lanes. But achieving speed isn’t about blasting through the line recklessly, it’s about making the process fair, robust, and swift by eliminating unnecessary delays and improving coordination.

The next step for Idaho is clear: fund the SPEED Council so it can build capacity, publish clear permitting timelines, and synchronize state efforts with federal schedules. For practitioners, success means preparing detailed yet nimble permitting records, so when the “express lane” opens, projects glide through smoothly.

In short, the goal should be a permitting system that works more like TSA Pre-Check and CLEAR—not like the frustrating long security line where everyone fumbles with carry-ons, debates outdated rules and worries about missing their flight. Efficient, predictable, and thorough—that’s the future of domestic mineral and energy infrastructure development.

Read the full article on the Idaho State Bar’s Digital Advocate Blog.

[1] Fixing America’s Surface Transportation Act, Pub. L. No. 114-94, div. A, tit. XLI, 129 Stat. 1312 (2015); see Permitting Council FAST-41 Dashboard, https://permits.performance.gov/fast-41 (last visited Aug. 10, 2025).

[2] Exec. Order No. 14,241, Immediate Measures to Increase American Mineral Production, 90 Fed. Reg. 13,673 (Mar. 25, 2025).

[3] Exec. Order No. 14,285, Unleashing America’s Offshore Critical Minerals and Resources, 90 Fed. Reg. 17,735 (Apr. 29, 2025).

[4] Aryn Baker, The Environmental Costs of Deep-Sea Mining, TIME (Aug. 4, 2021), https://time.com/6094560/deep-sea-mining-environmental-costs-benefits/.

[5] Rod McGuirk, Seabed Mining Debate Intensifies as Demand for Critical Minerals Grows, AP NEWS (Jan. 14, 2025), https://apnews.com/article/bd8c98390b3711439c055023b77e31b5.

[6] Permitting Council Press Releases (Aug. 2025), https://www.permitting.gov/newsroom/press-releases (last visited Aug. 10, 2025).

[7] Idaho Exec. Order No. 2025-02 (Jan. 24, 2025).

[8] See 2025 Idaho Legislative Session—No Appropriation for SPEED Council (on file with author).

[9] H.R. 4776, 119th Cong. (2025) (proposing the Standardizing Permitting and Expediting Economic Development Act).

[10] See, e.g., W. Env’t. L. Ctr., NEPA Rollback Bill, SPEED Act, Would Threaten Environment, Communities, Provide Legal Immunity to Polluters (July 25, 2025), https://westernlaw.org/nepa-rollback-bill-speed-act-would-threaten-environment-communities-provide-legal-immunity-to-polluters/ (last visited Aug. 10, 2025).

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Key Implications:

• Expanding federal support to additional minerals
• Expediting permitting on federal lands
• Soliciting input on permitting reform
• Prioritizing mineral production on federal lands
• Accelerating investment in mineral production projects

Explore the full alert.

Stoel Rives is actively tracking the mining sector impacts of these Executive Orders as well as other actions taken by the new administration. If you have questions or would like to discuss how these actions may affect your business, please contact one of the attorney contacts listed below.

The post President Trump’s Executive Order Promoting Domestic Mineral Production appeared first on Mineral Law.

Among the bills I cover are:

• S.B. 114: Would impose a new income tax on a “qualified entity,”—a partnership, sole proprietorship, or S corporation—and increase the oil and gas production tax.
• H.B. 84 and S.B. 77: Would allow municipalities to fully exempt economic development properties from property taxes and to levy a tax on blighted properties of up to 50% of the property’s assessed value.
• H.B. 142: Would impose a 2% tax on all sales of goods and services purchased in Alaska and would allow the legislature to share half of the tax revenue with municipalities that meet certain criteria.
• H.B. 109: Would reduce corporate tax brackets from nine to one, leaving a single tax rate under which corporations with taxable income over $25,000 would be taxed at a flat 2% rate.

In conclusion: “…several of the tax bills introduced by the legislature will be carried over for discussion in the second regular session. Also, toward the end of the regular session, Gov. Mike Dunleavy (R) announced that his administration could introduce sales tax legislation. Although it was never introduced, the specter has been raised of a special session sometime this fall. Stay tuned.”

You can read the full article here.

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As a result of lower predicted oil prices and reduced production, DOR lowered its 2023 spring forecast for unrestricted general fund revenue from that of its official fall 2022 forecast by $246 million for fiscal 2023 and $679 billion for fiscal 2024. Among the tax bills under consideration during the most recent legislative session—some of which were put forward thanks to the “comparatively less rosy” revenue forecast—were:

• H.B. 109: Would remove eight of nine existing corporate tax brackets and leave a single tax rate, so that corporations with taxable income over $25,000 would be taxed at a flat 2% rate.
• H.B. 134: Would prohibit a borough, city, or the state from levying a tax on the transfer of real property.
• H.B. 142: Would impose a 2% tax on all sales of goods and services purchased in Alaska. Would allows the Legislature to share half the tax revenue with municipalities that meet certain criteria.
• S.B. 114: Would impose a new income tax and substantially increase the oil and gas production tax.
• S.B. 120: Would expand the education credits that are available for use against a variety of state taxes.

Look for my next State Tax Notes column, in which I will provide an update of how the bills fared.

You can read the full article here.

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Welp, we still don’t know how this is going to play out.  But last month a new § 105(c) case came out of the Commission that muddied the waters even further.  That’s the case I want to talk about this month.

Section § 103(f) of the Mine Act says that a representative of miners (you probably know them as “miners’ reps”) is entitled to walk with an MSHA inspector and “shall suffer no loss of pay during the period of his participation in the inspection.”  Tara Otten worked as a laborer for Continental Cement at an underground limestone mine in Missouri.  Under the mine’s union contract, and as the most senior miner in her classification, she often had the opportunity to step up and work as a mobile equipment operator, for which she would be entitled to a higher rate of pay.  She was also a miners’ rep who frequently walked with MSHA for inspections.  Initially she received the higher MEO rate while she was doing her walkarounds, but at some point the company’s HR director looked more closely at the union contract and decided that Ms. Otten should only be paid the lower rate she would have gotten if she’d worked as a laborer that day.  Ms. Otten filed a complaint with MSHA, and the Secretary sued the company on her behalf, alleging that by paying the lower laborer rate the company was unlawfully interfering with her protected § 103(f) right to walk with MSHA without taking a loss in pay.

The administrative law judge agreed, holding that the company had unquestionably violated § 103(f).  His reasoning went one step further, however.  The ALJ held that since the § 103(f) violation had been established, and since the Mine Act is a strict liability act (we can talk about that in another column, if you’d like) there was no need for the Secretary or Ms. Otten to prove that the company had been unlawfully motivated for them to win the case.  This was effectively a completely new and unprecedented interpretation of the Mine Act, eliminating what until now has always been one element of proof required for a § 105(c) retaliation case.

The case went up to the Commission, which hears appeals from ALJ decisions. A majority of the commissioners agreed with the ALJ, and they affirmed his decision.  The Commission found, in effect, that Continental’s crystal-clear violation of § 103(f) was in and of itself enough to establish that it had also violated § 105(c), and it explicitly held that it was therefore unnecessary for the Secretary to prove that the company was unlawfully motivated to reduce Ms. Otten’s reduced pay to discourage her from being a miners’ rep.  The Commission noted that the appropriate legal test for motivation is still pending for decision and therefore unresolved, but it totally sidestepped both the longstanding Pasula-Robinette test and the Ninth Circuit’s but-for test and created a new and easy road for miners’ reps alleging unlawful retaliation under § 105(c).  

The really interesting thing about the case, though, is the separate opinion written by Commissioner Althen, who both agreed and disagreed with the majority of the Commissioners.  Like everyone else, he agreed that the miner had suffered an unlawful loss in pay, in violation of § 103(f).  But he took issue with the Commission’s leap (“without meaningful analysis,” he wrote) from a § 103(f) violation to a finding that § 105(c) had also been violated.  He pointed out that MSHA could simply have issued a regular § 104 citation to Continental to enforce Ms. Otten’s rights.  Then he took a hard look at the language of the Mine Act and argued that § 105(c) absolutely requires proof of unlawful motivation, since the statute prohibits adverse action because the miner had exercised her protected rights.  On that basis, he wrote that the but‑for test should have been applied to the case in order to effectuate the Mine Act’s goals.  (He actually said, “the Commission should forego whistling Pasula-Robinette in the wind and formally adopt the proper standard.”  You’ve got to love that candor, right?)

So not only are we no closer to knowing how the Commission is going to evaluate motivation in future § 105(c) cases; we also have this whole new subset of § 105(c) cases where it is unnecessary for the Secretary or a miner to prove motivation at all.  Honestly, I think the Commission looked at the facts of the case and when its collective gut said that Ms. Otten had been wronged, it took the easiest path to getting her pay restored.  I also agree with Commissioner Althen, who made clear that while he agreed with the outcome of the case, he didn’t like the shortcut the Commission took to get there.  And I worry what could come next, since the Commission has opened the door for the Secretary to come after companies alleging § 105(c) retaliation claims where those companies’ motives may have been pure even when they (maybe even accidentally) violated other Mine Act requirements.

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I represent a really good client, a company that mines its own materials and uses those materials in construction projects around the community. The construction side of the business is really what they do, with the rock production part being a small but necessary aspect of the operation. They generally have an excellent enforcement record when it comes to MSHA, but it would be a mistake to call them sophisticated mine operators. 

It’s a fine, close-knit group of people, out there doing their best and trying to make a living. Every contact I have with them is positive and reminds me of how much I like the people part of what I do.

One Friday afternoon a while back, some of the folks on the mining side of the operation were welding a new guardrail on the crusher feeder because an MSHA inspector required that as a condition of terminating a citation. They were installing the new guardrail in sections and using the raised bucket of a loader as a physical barricade to provide fall protection for each section that was missing as they advanced along the feeder. 

As they were getting ready to install the last section, MSHA arrived on-site to terminate the earlier citation. The three miners working on the installation were struggling a bit to stabilize the last piece of rail. Just as the inspector and the management representative got to the crusher, the loader operator jumped out of the machine and ran to lend a hand to the miners on the catwalk – leaving the loader unattended and the bucket raised.

You know what happened next. 

The inspector issued a bunch of citations, including one written as a significant and substantial (S&S) violation of § 104(d)(1) of the Mine Act, alleging that the company had unwarrantably failed to comply with 30 C.F.R. § 56.14206(b) because the loader had been left unattended and the bucket had not been lowered to the ground. Despite the fact that the inspector and the supervisor came on the scene at the exact same moment, the inspector called out the supervisor by name, alleging that he was actively engaged in the work and knew that the bucket had been in the air while the loader was unattended. 

Was there a violation? Sure, probably. Was it an unwarrantable failure? Oh, (heck) no.

We entered into settlement discussions with the Solicitor’s Office, essentially MSHA’s law firm. I asked, among other things, that the unwarrantable failure allegation be dropped and the citation modified to a § 104(a) citation because it’s clear that the supervisor had no idea the violation would occur until the moment it happened. 

The inspector and the supervisor discovered it at the exact same time. Yet, when I asked for the modification, the MSHA lawyer would only modify the citation to non-S&S and insisted on leaving the unwarrantable allegation in place. Her rationale was that the hydraulic system on the loader would make a catastrophic failure nearly impossible and thus an accident was unlikely. 

That’s true – but it also didn’t address the unfair accusation that the supervisor had unwarrantably failed to comply with the regulation.

Which leads to today’s lesson: negligence versus gravity. “Negligence” is just what you’d expect it to be. How careless was the operator? Or, as MSHA said in the Part 100 penalty regulations, did the operator know about the alleged violation? What steps did the operator take to prevent it? Were there any mitigating circumstances? 

“Unwarrantable failure” is like super-negligence. The Commission has called unwarrantable failure “aggravated conduct constituting more than ordinary negligence,” equating it to reckless disregard or intentional misconduct. For an allegation of unwarrantable failure to stick, the company agent had to have done something that was so egregious that it was more than plain old vanilla negligence. Reckless disregard has to mean something.

The legal test for an S&S violation is simple. Was the violation reasonably likely to lead to an injury? And if so, was it reasonably likely that the injury would be serious? (In MSHA world, that means the injury would have to entail lost workdays, restricted duty, or worse.) For a violation to be S&S, MSHA has to be able to prove both that an injury is reasonably likely and that the injury is reasonably likely to be serious. If you have just one, that’s not good enough. You need both factors for a violation to be S&S.

To recap, negligence looks backwards. What did the company know, when did they know it, and what did they do about it? Gravity, on the other hand, looks to the future. What’s the reasonably likely result if the alleged violation is allowed to continue unabated? 

Which brings me back to the MSHA lawyer who offered to reduce the violation I’ve described to non-S&S, but who would not drop the unwarrantable failure claim. She’s simply wrong. The supervisor discovered the violation at the same moment the inspector did. Of course he did not know it was going to happen until it did; once he and the inspector saw the loader operator exit the loader, they both shouted at him to go back and do things right. What did the supervisor know? Well, he saw the violation. When did he know it? At the very moment it happened. What did he do about it? He got the guy back in the cab.

Why am I telling you all this? Because it’s up to us, on the operator side, to pay attention when MSHA doesn’t do its job right. Nobody is arguing that there wasn’t a violation here. The facts are pretty clear. But neither was there an unwarrantable failure to comply with the regulation. 

As a result of the inspector’s misapplication of the law, amplified by a lawyer in the Solicitor’s Office who, frankly, isn’t any more clear on the concept than the inspector is, the company faces elevated enforcement. The supervisor in question has been tagged with an agent penalty under § 110(c) of the Mine Act, and his many years of exemplary experience have been marred by an unfair and factually incorrect accusation. 

Sometimes unwarrantable failures do happen, just as sometimes violations really are significant and substantial. But sometimes we need to speak truth to power, to keep the regulators honest and ensure that they, too, get it right.

The post We Have to Know What We’re Doing, Because They Don’t Always Get It appeared first on Mineral Law.

Unrestricted revenues in Alaska, which fund government operations, are driven by royalties for oil produced from state leases and by three categories of taxes—oil and gas production taxes, petroleum property taxes, and corporate income taxes. As a result of lower predicted oil prices and reduced production, DOR lowered its 2022 fall forecast for unrestricted general fund revenue from that of its official spring 2022 forecast to $3.9 billion ($1.1 billion decrease) for fiscal 2023 and $3.4 billion ($0.7 billion decrease) for fiscal 2024.

The government’s slackening progress in paying the refundable/rebatable tax credits started in 2015 and 2016, thanks to falling oil prices, culminating with lawmakers and policymakers authorizing no appropriations for payments for fiscal years 2020 and 2021. Rebounding oil prices may yield the government enough revenue to pay for, and clear the queue of, tax credits, good news for companies that have been holding the credits for many years.

Read “Bracing for Another Budget Debate,” published on January 16, 2023, by State Tax Notes.

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Legislators introduced several bills that would have increased taxes on individuals or businesses in Alaska, none of which passed. Several bills did pass or were nearly passed:

• H.B. 104, which would have increased state motor fuel tax rates, was approved in the House but failed to clear the Senate.
• S.B. 33, which expands the seafood product development tax credit, was passed in the House and Senate, and the governor signed it into law on July 8.
• H.B. 411, which amended current law to allow municipalities to tax exemptions or deferrals, or economic incentives inside a service area, with the goal of promoting growth within the service area, was signed into law by the governor on October 9.
• H.B. 281, the state budget bill, was approved with appropriations for payment to companies that earned rebatable production tax credits or corporate income tax credits.

Read “Jon Iversen: Tax Actions by the Alaska Legislature in 2022,” published on August 22, 2022, by State Tax Notes.

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The enforcement initiative goes into effect immediately and serves as interim measure as MSHA continues work to develop a new rule addressing silica dust exposure limits. But rulemaking progress has been slow and, with the proposed rule not expected until later this summer, a final silica rule is unlikely to be issued before 2023.  This enforcement initiative serves as a stop gap that MSHA “can take now while [it] continue[s] the rulemaking process toward the development” of the new standard, Assistant Secretary Chris Williamson explained.

Details about how exactly the initiative will unfold or how consistently or stringently it will be applied remain to be seen.  Based on information in MSHA’s press release, enforcement may be focused on increased oversight at mines with a history of prior silica exceedances and other non-compliance with existing rules. But the Agency left open the possibility of increased enforcement activity at silica-intensive operations at compliant sites, too. The measures include:

• Spot inspections at coal and metal nonmetal mines with a history of repeated silica overexposures;
• Increased oversight and enforcement of known silica hazards at mines with previous citations for exposing miners to silica dust levels over the existing 100μg permissible exposure limit (PEL).
  • When a metal/nonmetal operator has not timely abated a silica overexposure hazard, MSHA will issue a §104(b) withdrawal order until the hazard is abated. For coal mines, MSHA will urge “changes to dust control and ventilation plans to address known health hazards.”
• Expanded silica sampling at metal and nonmetal mines to ensure inspectors’ samples represent mines, commodities, and jobs known to have the highest risk for overexposure.
• An emphasis on sampling during mining processes presenting the highest risk of silica exposure: for coal mines, shaft and slope sinking, extended cuts and developing crosscuts; for metal and nonmetal, overburden removal.
• MSHA will “remind[] miners about their rights to report hazardous health conditions, including any attempt to tamper with the sampling process.”  It’s unclear, however, how exactly that outreach will occur.

Key Takeaways

Rollout of this new initiative comes on the heels of newly proposed requirements under MSHA’s mobile power haulage proposed rule and just months after appointment of a new Assistant Secretary.  With the change in administration and new MSHA leadership aboard, this may be just the latest shift in enforcement and regulatory approach, with more to come.

In any event, those operating in silica-intensive environments—and certainly those with silica-related enforcement histories—should dedicate particular attention to silica dust compliance at their sites. If compliance programs need updating, or training is overdue, now is the time.

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