The following articles are excerpts from the newsletter:

Interview with John Leshy: Thursday, February 10, 2000
Robert D. Comer, Snell & Wilmer LLP

National Academy of Sciences Issues Report Card on Hardrock Mining
R. Timothy McCrum, Crowell & Moring LLP

OSM Publishes Final Regulations on "Valid Existing Rights" and Section 522(e) Prohibitions
Christopher B. Power, Robinson & McElwee LLP

The Millsite Controversy - Chapter 2
Kenneth Hubbard, Dorsey & Whitney LLP

Forest Service's Proposed Management Act Planning Regulation, Marking a Major Policy Shift, Draws Widespread Comments, Concerns
Michael F. Duffy, National Mining Association

The D.C. Circuit's Molycorp Decision
Steven G. Barringer, Dickstein, Shapiro, Morin & Oshinsky LLP

 

INTERVIEW WITH JOHN LESHY:
Thursday, February 10, 2000

Robert D. Comer
Snell & Wilmer LLP

This past February, Solicitor John Leshy visited the University of Colorado Natural Resources Law Center as its Distinguished Visitor. During that visit, Solicitor Leshy was kind enough to participate in an interview for members of the Section's Mining Committee. The initiatives of Solicitor Leshy will have lasting effect on conservation history in the United States.

RC: John, You must be up there on the all time leaderboard for longest serving Solicitor. Have there been any longer terms?

JL: Next January I believe I will be the second longest with nearly eight years because Nathan Margold, who was the Solicitor under Harold Ickes in the New Deal, served nine years.

RC: The Department has two cases in front of the United States Supreme Court. The Public Lands Council case is a challenge to the Taylor Grazing Act regulations [Ed. Note: lower court decision at 167 F. 3d 1287, 10^th Cir. 1999]. Why did the Court grant certiorari in a regulatory review case over western grazing?

JL: (laugh) It's puzzling. We have been scratching our heads since the Supreme Court granted cert. about it. We put out a regulation that just clarified existing practice and cleaned up some misconceptions about the earlier regulation. We didn't think we were changing anything fundamental. The statute is quite clear on the nature of the grazing privilege. The Supreme Court will presumably tell us more about why they took this case when they decide it.

RC: The other Supreme Court case you have is the Mobil offshore minerals case, which involves a congressional moratorium on North Carolina offshore drilling leases [Ed. Note: lower court decisions at Conoco v. U.S. 35 Fed. Cl 309; Marathon and Mobil v. U.S., 158 F.3d 1253 and 177 F.3d 331]. The law requires North Carolina to approve the drilling plan under the state Coastal Zone Management Act [CZMA] plan, which approval had not been received? Why didn't the Court simply agree with the Federal Circuit?

JL: Good question. That's puzzling too because the facts are, as we see it, fairly clear. The lease was subject to CZMA consistency and that was the problem the lessee ran into. Congress did pass Outer Banks Protection Act, subsequent to lease issuance, but we don't think that resulted in any sort of breach. Again, we will fight it out and the Supreme Court will give us an answer.

RC: Speaking of Congress, there has been an unusual level of congressional interest in the Mill Site opinion in which you were partially vindicated because Congress extended its affect prospectively. Is this a good result from the Department's standpoint?

JL: Basically, yes. We negotiated the rider to the point where we thought it was acceptable. We will not apply the opinion to previously approved plans of operations.

RC: Let's discuss one example of congressional inquiry. It could be argued that the 3809 rulemaking should have been a simple regulatory rulemaking, yet it was, at the very least, delayed by the congressionally mandated NAS/NRC study, which questions the need for the new rules. One of the conclusions of the study states that "improvements in the implementation of the existing regulations presents the greatest opportunity for improving environmental protection." In retrospect is there a better approach to accomplish this policy objective?

JL: I don't see the NRC report quite the same way. That is, I don't think the NRC report said everything is fine and no rule changes are needed. To the contrary, it said there are a number of places where the rules could be improved, such as bonding so-called "notice" mines. On the whole we feel vindicated by the NRC report because major issues that the NRC emphasized needed improvement were issues we are addressing in our proposed rules. We are set to complete that rulemaking by the end of the year, and we hope we have a clear path to do that. The only constraint at this point is the latest rider, by which Congress has required our final rule not be inconsistent with the NRC recommendations. We will work hard not to be inconsistent with those recommendations.

RC: Well, along these lines, has Congress gone too far, and to what extent should Congress assert itself into the Executive's policy agenda?

JL: You mean as far as rulemaking is concerned? As you know, we have had, some real donnybrooks -

RC: - or into Solicitor's opinions as well!

JL: (laughs) Congressional oversight of the Executive Branch is a constitutional responsibility and we respect the right of Congress to engage in it. They are playing within the constitutional rules. Nevertheless, it can be frustrating. The 3809 rulemaking is something that would be nice to be able to finish. It's been ten years since that rulemaking was initiated. That is, there does come a point at which congressional oversight becomes obstructive. We have had a similar kind of problem with the oil valuation rule, completion of which has been held up by several riders, making procedural adjustments in our rulemaking. But we have patience and perseverance if the issues are important enough. Both of those rules, the oil valuation and the 3809, we need to finish. The oil valuation rule is being published by March 15.

RC: With respect to the Administration's use of the Antiquities Act after the Grand Staircase Escalante and recent Arizona activity, I think many people are asking, "What's next?"

L: It is up to the President. Its no secret that the Secretary has made several public visits to several other areas around the West, exploring the possibility of either Antiquities Act protection or legislative protection, such as designation as national conservation areas. He has looked at a couple of other areas in California, a couple of areas in Colorado, an area in Montana, a couple of areas in Oregon. As far as I know, he has sent no recommendations to the President for any of those areas, but they are in play, in the sense that he has been engaged in active discussion with local leaders and congressional representatives on what measures might be taken to improve protection of those areas, whether it's by legislation or by a national monument declaration.

RC: From a legal standpoint I think there is an interesting question as regards the Act. In your opinion, is there any area of land too large to receive protection under the Antiquities Act?

JL: It depends on what you're trying to protect. The Act refers to objects of historic or scientific interest. The first and still the major case interpreting that language was quite dismissive of an objection to the use of the Antiquities Act, saying that 800,000 acres is not too big, at least if it is the Grand Canyon, which is a rather big object, but is clearly an object of historic and scientific interest. President Carter designated a monument in Alaska, I think the largest was several million acres, considerably larger than the 800,000. There was never any High Court opinion on that, but there were at least one or maybe two district court opinions that brushed aside objections to the use of the Act. In short, I think there's no pat answer to the question. Congress did not put an acreage limit in the statute. The issue is: What are the objects you are trying to protect and what is, as the statute says, the smallest area compatible with the proper care and management of those objects?

RC: John, I would like to switch gears to some big picture policy issues. During the Carter administration there was talk of uniting the Interior Department and Forest Service functions into a super natural resource agency. Has the need for the traditional Forest Service-Interior Department dual agency structure been eliminated over time?

JL: That is an interesting question. The consolidation of the Forest Service and the BLM has been around as an issue practically ever since the Forest Service was moved out of the Interior Department in 1905. Various Secretaries, including my old boss Cecil Andrus, and Harold Ickes back in the '30s, made runs at getting the Forest Service back in Interior. Secretary Babbitt has never tried to do that. He has basically taken the view that there's nothing wrong with having the BLM and the Forest Service in healthy competition with each other. We have tried to eliminate senseless overlap and duplication - the two agencies share offices in some places because that makes more administrative and fiscal sense. We have certainly tried to eliminate obvious, gross inconsistencies in how they do business under similar statutes, or the same statutes. But to say we are going to take the two boxes on the chart and make them into one box just for the sake of doing that, Secretary Babbitt doesn't believe it is worth the trouble, and, of course, it would be a lot of political trouble anyway. A basic problem has always been the Forest Service is under the jurisdiction of the Agriculture Committees in Congress, which would lose power if the Forest Service came over to Interior. That's a real obstacle right there. It's never been on our agenda because the Secretary does not think there is anything wrong, and in fact, it's healthy to have those agencies competing with each other to be the best land managers they can.

RC: Is the Department of Justice/Department of Interior relationship the best approach to handle the very specific, substantive litigation at Interior?

JL: You know there are always bumps and grinds and difficulties in the relationship between the barristers and the solicitors, in effect between the courtroom lawyers at the Department of Justice and the client lawyers at the Department of the Interior. I must say, since I've been there, we've had a generally fruitful and happy relationship between the two agencies. I think you'll get that answer from most of the people, the career people in line positions at Justice and at Interior. We've worked hard at it. I've tried to set a tone where we discuss, and when we disagree we discuss some more. We're not in a turf competition. This is a joint enterprise toward a single goal, and we all ought to be on the same page working together. It has helped that Lois Schiffer, the Assistant Attorney General, is a college and law school classmate of mine. We've known each other a long time, we get along well, and don't believe in hiding the ball from each other. So, I've been pleased with the relationship.

RC: Is it the best approach?

JL: Ahh! You mean I didn't answer your question! (laughs)

RC: What would you recommend if you were to devise the relationship?

JL: I think it is basically a good approach. Justice provides a healthy check on us because if we want to take a position that Justice feels doesn't pass the red-face test in front of the judge, they'll call us on it. We'll have a lot of discussion about it and that's not bad. If we had the ability to go into court on our own, without the kind of experienced litigation screen that Justice provides, we would be worse off. They add value to the process. At the same time, we add value to the process, too, because our lawyers are involved in the day-to-day activities of our clients and bring insight into how to litigate these issues that a purely litigating lawyer - who may not know anything about the client and its program except this one case - won't have.

RC: How do you view the role, if any, of the Solicitor's Office in shaping substantive departmental policy? I think a lot of the lawyers would say, "Is that really the providence of the legal department?"

JL: Personally my role is somewhat dual. I am a political appointee and policy advisor as well as manager of the Department's legal office, while almost all our lawyers are career public servants.

RC: The Secretary has surrounded himself with senior advisors who are largely lawyers by training. Is this a coincidence or a plan?

JL: More coincidence than plan. Lawyers are, however, trained to analyze issues quickly and carefully, to look at all sides, and to be familiar and comfortable with process. All of these are good skills for high level government work.

RC: Let's shift to some questions of a more general nature about your challenges, past and present, for the Office of the Solicitor. What priorities remain for you to accomplish before the administration departs?

JL: I would like to see us wrap up as much as we can of the tremendous energy investment we've made on water issues like the lower Colorado River, the Central Valley Project Cal-Fed process, and on the Platte and the Klamath and the Rio Grande and any number of other river systems. I hope we will get to do more, with or without Congress's help, in conservation area protection. I'd like to see us put in place a framework that points the way to salmon recovery in the northwest. We need to finish the Part 3809 hardrock mining regulatory overhaul, and the Indian land-in-trust (Part 151) regulatory overhaul. There's more to do in the Everglades restoration project, and in some Habitat Conservation Plans still in negotiation. So much to do, so little time.

RC: What do you consider to have been your greatest accomplishments during your tenure as Solicitor?

JL: Maintaining a high level of professionalism in the Office. Focusing attention on solving genuine resource management problems with a lot of focus and hard work.

While there always will be state-federal tension on a lot of issues, I think we have worked successfully with others to keep the level of rhetoric on all sides muted and have kept people at the table focused on real problem solving. We've solved a lot of problems that way. I had the good fortune of working on the Grand Staircase-Escalante National Monument. It was something I felt very good about, as well as what we did in Utah after that - the giant federal-state land exchange, and the buyout of the coal leases in the Monument. I think we have done a significant amount of good in southern Utah, which is a marvelous region. I know our actions are still somewhat controversial, but I have a very good feeling about how history will regard what we have done there. I am very proud of the work we have done in making the Endangered Species Act more user-friendly, while maintaining public support for its important goals.

RC: What challenges will await the new Solicitor when he or she arrives?

JL: (laugh) I don't know how to answer that. When I walk out the door I am really not going to think about what the next person does. I would like to keep moving forward.

C: What was the first crisis that hit you when you walked in the door?

JL: One thing that happens when you stay so long (laugh), is that your memory fades out on things like that. In my job there is an awful lot of crisis management. I go to work in the morning and never know what the day's range of problems is going to be. Having quiet time to reflect and to organize myself and my work is a pretty rare commodity. I stumble from issue to issue and crisis to crisis, and they all blur together after awhile. I can't remember what happened in the first six months. (laugh).

RC: What are your priorities for administrative "action items" to accomplish internal to the Solicitor's Office prior to your departure?

JL: We have had our ups and downs budget-wise. The most important thing about the Solicitor's Office from a budget standpoint is that we are all people - 90% of our costs are personnel-related, which means every year the costs go up because of cost of living increases, workers comp increases and that sort of thing. So we need an increase every year just to stay even. We did not always get those increases through the middle to late nineties. We had a couple of very hard budget years where we had to scrimp and save and actually came close to having to furlough people or even lay people off. We had a relatively good budget year last year and got an increase that will help us dig out of that hole. I very much want to leave the Office on a strong financial footing. One of the things that has happened is that we have become more dependent than I would like on client funding on certain things. It undermines the independence of the Office. A risk is, the "rich" client agencies get better advice than the "poor" client agencies. We are going to try to address that. One part of our budget proposal before Congress is to reduce the level of client support. That is a big priority.

RC: Do you have any comments you would like to make on any other issues, such as NRD, ESA, Lower Colorado water banking regs, Indian water settlements?

JL: I am very disappointed we were not able to get the ESA reauthorized. The bipartisan Kempthorne/Chaffee/Reid/Baucus bill of 1997-98 had a lot of promise. We worked very hard with that group of Senators to get a good bill that satisfied a wide range of interests, but the leadership in the Congress wasn't interested in moving it.

On the Colorado River, I am very proud of our efforts, working with a wide range of Basin interests, to introduce more flexibility in River management to deal with the long-term problem that more water has been allocated out of the River than exists in the River, and to address California's chronic use of more than its allocation. To say that the politics of the River are complicated is a vast understatement, but with steady (and careful) pushing by Secretary Babbitt, we've made more progress than anyone would have dreamed a few years ago.

The fact that we have not brought many Indian water settlements to fruition has been somewhat disappointing. A major problem has been that expectations got too high about the ease and desire for settlements, perhaps because people have forgotten how difficult and unsatisfying the litigation route can be. Sometimes I think there needs to be a dose more litigation to get people more serious at the negotiating table. On the other hand, we've had continued success in Montana, and are on the verge of potentially huge success in Arizona, so the pattern is not uniform. It's perhaps time to reexamine why some states, like Arizona and Montana, have had such success in settling Indian claims, while other states have not. In Arizona a key ingredient was the availability of substantial amounts of Central Arizona Project water to lubricate settlements, as it were. In Montana, I think a significant factor has been the presence at the state level of a rather single-minded, focused, and relatively apolitical body - the Reserved Rights Compact Commission - that has been able to look at these issues as resource management issues more than political issues. That's an approach other states might look at.

RC: John, one final question. Mining companies are moving outside the United States and some would argue it is a result of burdensome regulatory issues. Now there are questions about whether or not this is good public policy and whether there is any effect on the Nation's strategic mineral reserves. The United States is also the largest consumer of energy and hard rock minerals, yet an arguable effect of our domestic policies is a shift of environmental impacts offshore to other countries. Are the environmental externalities that are not incorporated into our public land management decisions, which favor non-extractive, less impactive resource uses, any different than the externalities that were not incorporated into corporate and governmental decision making that originally led to enactment of the environmental laws that are today in the forefront of the administration and are in fact a cornerstone of departmental policy making?

JL: If I understand your question, it is whether the Secretary of the Interior should consider, in deciding whether to approve a mining proposal, that the consequences of turning the proposal down may be more harmful to the environment, because it may mean that the project will effectively move to another country that has less stringent environmental laws than we do. At one level, it's an interesting legal question - are offshore environmental impacts within the legal purview of the Secretary? More particularly, does "unnecessary or undue degradation of the lands" in FLPMA refer only to public lands, or lands directly affected by the project, or does it refer to possible effects on lands abroad if the project is turned down here? At the policy level, it is of course very difficult to gauge the consequences of turning down a particular project here. A business decision where to locate is a very complex one, influenced by many factors. Despite the increasing stringency of environmental regulation here, many mining enterprises still prefer to operate in the U.S. because of its political stability and other advantages. Putting it more bluntly, the mining industry has been making the "we'll move offshore if you regulate us more stringently" argument for many years, in all sorts of contexts. Since I first heard those arguments in the 1970s, environmental regulation has gotten tougher yet domestic hardrock mineral production here, particularly gold, has gone up many fold.

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NATIONAL ACADEMY OF SCIENCES ISSUES REPORT CARD ON HARDROCK MINING

R. Timothy McCrum
Crowell & Moring LLP

The National Academy of Sciences/National Research Council ("NAS") released its long-awaited report, HARDROCK MINING ON FEDERAL LANDS, on September 29, 1999. Because of widespread concern by the western states and the mining industry about Interior Secretary Bruce Babbitt's proposed comprehensive and burdensome revisions to the 43 C.F.R. Subpart 3809 regulations, Congress had asked the NAS in 1998 to assess the adequacy of existing federal and state environmental and reclamation regulations applicable to hardrock mining on public lands in the West. The members selected to prepare the report came from diverse backgrounds and conducted their analysis in a thorough and objective manner. The NAS Study Committee held numerous public meetings where it heard and considered the viewpoints of state and federal agencies, environmental groups, Native Americans, and mining industry representatives.

The Committee was chaired by Perry Hagenstein, who has had a long and distinguished career involving public land policy issues. Other Committee members such as Paul Barton, retired from the U.S. Geological Survey, and Jonathan Price, the State Geologist of the Nevada Bureau of Mines and Geology, brought substantial geologic expertise to the Committee, as did Sam Adams, a past President of the American Geological Institute and former head of the Department of Geology at the Colorado School of Mines. Several Committee members were associated with environmental groups and regulatory agencies. Ann Maest is a geochemist with past experience with the U.S. Geological Survey, as well as with the Environmental Defense Fund. Dick Reavis brought his nearly thirty years of regulatory experience with the U.S. EPA and the Nevada Division of Environmental Protection to the process. Duncan Patten spent most of his career with Arizona State University, where he was a professor of Plant Biology and Director of the Center for Environmental Studies. Edwin Clark was formerly the Vice President of the Conservation Foundation and a former regulator with the U.S. EPA. A few of the Committee members, such as Ann Baldridge and Ray Krauss, had substantial environmental permitting experience with the mining industry. Don Gentry was the sole mining engineer. He was a professor at the Colorado School of Mines for over 25 years. Don Runnells brought his substantial environmental and geotechnical engineering consulting experience to the Committee. The sole lawyer on the Committee was James McElfish, who has spent most of his career with the Environmental Law Institute, and co-authored a study of the Federal Surface Mining Control and Reclamation Act that was critical of coal industry practices on environmental grounds, and another study critical of the hardrock industry.

Industry and States Make the Grade; Interior Comes Up Short
Given the diverse backgrounds of the Committee members, it is especially significant that the Committee's first conclusion was that the "overall structure of the federal and state laws and regulations that provide mining-related environmental protection is complicated, but generally effective." Its second conclusion was probably its most important finding, namely that "improvements in the implementation of existing regulations present the greatest opportunity for improving environmental protection and the efficiency of the regulatory process" (emphasis added). The Committee found that federal land management agencies already have at their disposal an array of statutes and regulations which "assure environmentally responsible resource development," but these "tools are unevenly and sometimes inexpertly applied." In other words, Secretary Babbitt's comprehensive proposal to revise, expand, and further complicate, the 43 C.F.R. Subpart 3809 regulations is unnecessary (and therefore unwarranted).

Indeed, when it is recognized that Secretary Babbitt has been in charge of these federal land management regulations at the Interior Department since early 1993, the NAS conclusions regarding his treatment of those regulations present quite a criticism of his administration. For example, according to the NAS report, the "Committee was consistently frustrated by the inability of federal land management agencies to provide timely, accurate information regarding how they manage their lands and the status of mining projects under their jurisdiction." The report stated that the "lack of information appeared to be greatest among highly placed officials who have the greatest need to know." In a thinly veiled reference to senior Interior Department officials, the Committee found that "those responsible for regulatory management and change, and for keeping the public and Congress adequately informed, appear to be severely limited in their ability to do so."

The Committee made several recommendations for improved implementation and administration of the existing federal land management regulations, such as the development of management information systems to track compliance with operating plans and environmental permits, and enhanced communication of information to agency managers, the public, and other stakeholders. The Committee also recommended that the Bureau of Land Management ("BLM") and the Forest Service should carefully review the adequacy of staff and other resources devoted to regulating mining operations on federal lands and expand or reallocate existing staff, provide training to improve staff capabilities, and secure supplemental technical support from inside and outside the agencies.

The Committee's report offered virtually no criticism of the state environmental regulatory programs. The Committee found that the existing federal and state regulatory "structure reflects regulatory responses to geographic differences in mineral distribution among the states, as well as the diversity of site-specific environmental conditions."

Similarly, the NAS Committee's report portrayed the modern mining industry quite positively. The Committee explained that mining companies "have a strong continuing interest in seeing the [regulatory] process work smoothly." The Committee found that because modern mining companies "are involved for the long haul, they will go to great lengths to avoid creating problems that may cause regulators to be reluctant to approve modifications to their existing plans or proposals for new operations." The Committee found "significant improvements in mining-related environmental protection in recent decades" and stated that all stakeholders the Committee encountered "appeared to be concerned about environmental protection . . ."

Regulatory Analysis and Recommendations
Interior's proposed 3809 rules would establish a presumption that backfilling should be carried out in every case, placing the burden on the operator to explain why the presumption was not applicable. On that controversial subject, the Committee repeated the findings of the 1979 NAS Committee on Surface Mining and Reclamation ("COSMAR") that "to restore the original contour where massive ore bodies have been mined by the open-pit method could incur costs roughly equal to the original cost of mining" and that such backfilling "would be of uncertain environmental and social benefit." The Committee's 1999 report stated that it had "no strong basis to contradict the COSMAR conclusion on backfilling . . ." Accordingly, the Committee concluded that although "partial or complete backfilling can be environmentally and economically desirable in some circumstances, it was unable to find a basis to establish a general presumption either for or against backfilling in all cases."

The Committee did identify several minor "regulatory gaps" in the existing federal land management regulations, but was careful to point out that these gaps must be viewed in the context of its overall recommendation that "improvements in implementation present the greatest opportunities for improving environmental protection and the efficiency of the regulatory process . . ." The Committee urged that the existing BLM exemption from the plan of operations requirement for mining operations under five acres be scaled back so that only exploration activities would continue to be exempt. Further, the Committee urged that even these exempt exploration activities be subject to financial assurance requirements. These are extremely modest changes to the regulations, which most companies in the hardrock mining industry have already endorsed.

The Committee recommended some minor changes in the existing regulatory procedures governing modifications to plans of operations, and urged BLM and the Forest Service to adopt regulations governing temporary closures of mines. The Committee also urged BLM and the Forest Service to plan better for and assure the long-term post-closure management of mine sites on federal lands, although the Committee did not expressly urge regulatory changes to accomplish this goal. The Committee also recommended that federal land management agencies have the authority to issue administrative civil penalties, although it properly questioned whether statutory authority for such penalties exists now. Finally, the Committee urged that existing environmental laws and regulations be modified so as to encourage remining at abandoned mine sites as a new means of reclaiming those sites.

Comment Period Reopened, As Congress Directs BLM to Follow NAS Views
On October 26, 1999, in light of the NAS report, the Interior Department published a notice in the Federal Register reopening the public comment period for 120 days, i.e., until February 23, 2000, on the proposed revisions to the 3809 regulations. In Section 357 of the Fiscal Year 2000 Interior Appropriations bill which was enacted by the Consolidated Appropriations Act (P.L. No. 106-113), the Congress provided that the Interior Department may only issue final rules to amend the 3809 regulations "which are not inconsistent with the recommendations . . ." contained in the NAS report. Perhaps not surprisingly, in classic Washington-speak Interior is claiming that the NAS report actually supports its rulemaking effort, and on December 8, 1999, Interior Solicitor Leshy issued a memorandum to BLM advising the agency that it has enormous leeway to issue final rules, notwithstanding the congressional directive. Nonetheless, the NAS report will provide substantial evidence in the administrative record which will render any broad and burdensome 3809 rule vulnerable to judicial review. In addition, the NAS report provides an objective rebuttal to the continuing claims that hardrock mining on federal public lands lacks adequate federal and state regulation.

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OSM PUBLISHES FINAL REGULATIONS ON "VALID EXISTING RIGHTS" AND SECTION 522(e) PROHIBITIONS

Christopher B. Power
Robinson & McElwee LLP

On December 17, 1999, the U.S. Department of Interior's Office of Surface Mining Reclamation and Enforcement ("OSM") published in the Federal Register final regulations addressing two critical issues under the Surface Mining Control and Reclamation Act of 1977 ("SMCRA") which have been awaiting final resolution for many years: (1) the question of what a permit applicant must show to prove "valid existing rights" ("VER") to allow mining in areas otherwise declared off-limits to mining under SMCRA § 522(e) (i.e., National Parks, historic sites, public parks, and near occupied dwellings and other protected areas); and (2) the issue of whether or not SMCRA's § 522 prohibitions apply to subsidence associated with underground mining operations. 64 Fed. Reg. 70766 (Dec. 17, 1999). Both final rules may also be downloaded from OSM's Internet website at: www.osmre.gov.

The final VER rule adopts the so-called "good faith/all permits" standard for determination of VER, under which an applicant must have either obtained or made a good faith effort to obtain all permits and approvals required for mining in the protected area prior to the date the § 522 prohibitions came into effect. Twenty of 24 SMCRA primacy States already rely on either the good faith/all permits test or the closely related "all permits" test for VER determinations. Any State wishing to maintain a different definition must demonstrate that it will be no less protective of the lands identified in § 522 than the new federal definition; OSM believes that it will be difficult for a State that employs a takings standard to justify its retention. 64 Fed. Reg. at 70821.

OSM also published a related rule clarifying that subsidence due to coal mining is not a "surface coal mining operation," and therefore neither underground mining nor subsidence resulting therefrom is prohibited or protected under § 522 of SMCRA. This rule is consistent with OSM's previous regulatory position, as expressed in a July, 1991 Memorandum of Opinion issued by the Interior Department's Office of the Solicitor.

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THE MILLSITE CONTROVERSY - CHAPTER

Kenneth Hubbard
Dorsey & Whitney LLP

On November 7, 1997, the Solicitor of the Department of Interior, John Leshy, issued Solicitor's Opinion M-36988, entitled "Limitations on Patenting Millsites under the Mining Law of 1872" (The "Solicitor's Opinion"). In this Opinion, the Solicitor concluded that the millsite provision of the 1872 Mining Law not only limits the acreage of any given millsite location to five acres, but also limits the millsite acreage that may be patented to five acres per associated lode or placer mining claim. Since the mining industry for many years has relied on the BLM and Forest Service Manuals and other departmental pronouncements to the effect that the number of millsite claims is limited only by a showing of need for mining or milling purposes, this Opinion came as a great shock, especially when it began to be applied in the context of approval or non-approval of plans of operations. The immediate result was the enactment of special legislation to reinstate an earlier approval of a plan of operations for Battle Mountain Gold's Crown Jewel Mine in Washington state, which had been subsequently disallowed because Battle Mountain Gold had too many millsites under the 1:1 ratio prescribed by the Solicitor's Opinion. This special legislation also contained a provision of more general application, touched on below. For an excellent summary of the background of this controversy, see Larry McBride's submission to the Section's 1999 The Year in Review, under "III. Federal Lands Developments," Item C, "The Mining Law of 1872," Item 1 "Excess Millsite Acreage."

"Chapter 2 " of this controversy began on August 27, 1999. As the above-mentioned summary states:

On August 27, 1999, BLM proposed revisions to its general regulations pertaining to the location, recordation and maintenance of mining claims and millsites under the Mining Law of 1872. In this proposal was a new section designed to codify in regulation the conclusion of the November 1997 Opinion regarding excess millsite acreage - "You may locate more than one mill site, so long as you do not locate more than an aggregate of 5 acres of mill site land for each 20-acre parcel of patented or unpatented placer or lode mining claims associated with that mill site land ...."

The comment deadline for these proposed regulations as extended was January 24, 2000. A number of state and regional mining associations filed lengthy comments on this portion of the proposed regulations (including the Colorado Mining Association and the Northwest Mining Association), but perhaps the most comprehensive and challenging to the Solicitor's Opinion and his subsequent statements in support of his conclusions therein were those filed by the National Mining Association ("NMA").

The NMA comments on just the "millsite issue" cover approximately 27 pages of its 80 total pages of comments. In addition, there are eight attachments, approximately three inches high, consisting of items such as (1) a chart of representative multiple millsite patents; (2) affidavits of retired BLM mineral examiners and other retired BLM employees; (3) responses from state BLM offices to a 1996 survey conducted by the Solicitor's Office regarding the occurrence of multiple millsites; (4) pertinent portions of various BLM and Forest Service guides and manuals; and (5) select testimony presented at Congressional hearings regarding the multiple millsite issue.

These attachments provide strong support for many of the arguments of the commentors, which can be summarized as follows:

1. The millsite proposal embodies substantial changes to the Mining Law and longstanding interpretations of that body of law.

2. The proposed limitation is contrary to Section 227 of the Consolidated Appropriations Act of 2000 (which limits the expenditure of funds for fiscal years 2000 and 2001 "to limit the number or acreage of millsites based on the ratio between the number or acreage of millsites and the number or acreage of associated lode or placer claims ..." in certain situations).

3. The proposed limitation finds no support in the language or history of the Mining Law; and

4. The proposed limitation is directly contrary to the Secretary's longstanding interpretation of the Mining Law as evidenced by the Department's consistent policies and practices.

Department of the Interior Solicitor John Leshy stated during a recent speech in Denver that he would be happy to have his Millsite Opinion litigated. The final regulations, unless they end up being drastically changed from the way they are currently written with respect to "the millsite issue," may be the catalyst for such litigation.

In a related development, the Interior Board of Land Appeals on January 28, 2000, issued its opinion The Wilderness Society/Great Bear Foundation (IBLA 99-379, 151 IBLA 346). This opinion holds that the 1999 Emergency Supplemental Appropriations Act, Pub. L. No. 106-31, 113 Stat. 90 (May 21, 1999) (the "1999 Act"), makes it clear that:

Congress has provided for a rule contrary to that articulated by the Solicitor's Opinion ... (and) ... has chosen to clarify the manner in which the Mining Law of 1872 is to be interpreted by unequivocally declaring that the number of mill sites to be patented, with respect to patent applications and plans of operation submitted before May 21, 1999, shall be governed by the BLM Handbook and the Forest Service Manual.

Concerning the appellant's argument that the 1999 Act expired on September 30, 1999, the end of the fiscal year covered by the appropriations bill which it amended, the IBLA opinion quotes at length from the conference report which accompanied the 1999 Act, and concludes:

Given the concerns articulated by the conferees and the language employed, we would have found it exceedingly difficult to conclude that section 3006 expired simply because the fiscal year to which the various appropriations pertained had ended.

The opinion then goes on to quote the pertinent provisions of the above-mentioned Consolidated Appropriations Act of 2000 (H.R. 3194, Pub. L. No. 160-113), described in the opinion as "the Current Act," and concludes as follows:

We conclude that the current Act effectively silences Appellants' arguments. BLM therefore did not err in implementing the will of Congress as expressed in section 3006(c) of the 1999 Act, and the current Act maintains the status quo as it was established by the 1999 Act.

See also U.S. v. Shumway, 199 F.3d 1093, 1999 WL 1256285 (9^th Cir. Arizona), wherein the court made several interesting observations concerning mining and mill site claims, including the following: "Congress has refused to repeal the Mining Law of 1872. Administrative agencies lack authority effectively to repeal the statute by regulations."

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FOREST SERVICE'S PROPOSED MANAGEMENT ACT, PLANNING REGULATION, MARKING A MAJOR POLICY SHIFT, DRAWS WIDESPREAD COMMENTS, CONCERN

Michael F. Duffy
National Mining Association

After granting two short extensions of time for filing comments, the U.S. Forest Service, on February 10, 2000, closed the rulemaking record on its controversial proposal to revamp its land and resource management planning procedures. The proposed regulations, published October 5, 1999 (64 FR 54074-54111) reflect the latest phase in nearly a quarter century of activity aimed at implementing the National Forest Management Act of 1976, 16 U.S.C. §§ 1602 -14, (NFMA). Under NFMA the Forest Service is required to develop, implement and maintain a forest management plan for each of the 155 national forests and 20 national grasslands that make up the National Forest System, and to undertake revisions to each plan every 15 years or when circumstances affecting the plan have changed significantly.

Initial development of planning regulations took place in 1979, and subsequent revisions to the regulations culminated in the 1982 promulgation of the current planning regulations set forth at 36 CFR Parts 217 and 219. Delays in the resolution of issues among competing interests led the Forest Service to undertake a thorough review of its forest management process in 1989. That review produced a series of reports issued in 1990, and prompted the Forest Service to issue an advanced notice of proposed rulemaking in 1991 (56 FR 6508). A proposed rule was issued in 1995 (60 FR18886), and, partly in response to controversy surrounding that proposal, Secretary of Agriculture Glickman appointed a 13 member Committee of Scientists to review the Forest Service's planning process and offer recommended changes. That Committee reported back to the Secretary in March 1999, and the current proposal, both philosophically and substantively, strongly reflects the Committee's report.

The most striking aspect of the proposed rule is its declaration that the "first priority" with respect to forest management planning is the "maintenance and restoration of ecological sustainability." Proposed § 219.19. Moreover, all planning decisions and approvals with respect to the production of goods and services from forest lands must be made with a view toward "maintain[ing] or restor[ing] ecosystem integrity, including ecosystem viability." Proposed § 219.20 (b). Likewise, production of goods and services from forest lands would not be allowed if such activity would reduce the viability of any species (referred to in Proposed § 219.2 as members of the "plant and animal communities") or would not serve to " [p]reserve options so that a range of future stewardship options will be available." Proposed §§ 219.20 (b)(4) and (b)(8). Lastly, the review and approval process would be guided by a principal of "historic range of variability," in essence, a view of ecosystem sustainability as measured against the "ecosystem... characteristic of an area before European settlement." Proposed

§ 219.36.

Despite assertions to the contrary, this new overarching criterion for both the planning process and the approval of activities pursuant to a management plan constitutes a radical departure from traditional policies of multiple use and sustained yield dating back over a century to the Organic Administration Act, 30 Stat. 11 (June 4, 1897), which established the national forest system, up to and including NFMA. Numerous commenters have reminded the Forest Service that Congress, as the Constitutionally delegated overseer of the federal lands, has consistently expressed its intent that the forests be managed under the rubric of multiple use and sustained yield. For example, the Multiple Use and Sustained Yield Act of 1960, 16 U.S.C. §§ 528-31, ("MUSYA") declares that the "sustained yield of the several products and services" available from the nation's forests can be secured through "the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of various renewable resources of the national forests without impairment of the productivity of the land." 16 U.S.C. § 531(b). Likewise, contrary to disclaimers throughout the preamble to the proposed rule, the economic and social sustainability of local communities who depend on the national forests take a decidedly inferior role to that of ecological sustainability in the proposal.

The Forest Service's planning procedures themselves also undergo significant revisions in the proposed rule. For example, oversight of the planning process is delegated to the individual forest or grassland supervisor rather than the regional foresters, although the rule also states that if an issue arises in the context of an individual forest plan that may have ramifications for other forest or grassland units, the decision making power may be transferred to a regional forester or the Chief of the Forest Service. Proposed §219.3. The proposal also calls for the establishment of science advisory boards to advise the Forest Service decision maker in the adoption or amendment of plans, for example, overseeing the monitoring and assessment activities used to determine how and whether ecological sustainability and ecosystem integrity can be achieved through a given forest management plan. Proposed § 219.25. The rule does not clearly state, however, whether those committees would be subject to the strictures of the Federal Advisory Committee Act, 5 App. 2 §§ 1 et seq.(1972).

The proposal would also replace the current post-decisional appeals process (36 CFR Part 217) with a pre-decisional objection process on forest plans. Proposed § 219.32. In doing so the proposed rule places significant discretion in the hands of the decision maker as to how such objections will be acted upon. Lastly, provision is made for public input into planning decisions, but the means and extent of such participation are loosely structured and subject to the broad discretion of the decision maker. Proposed § 219.12(a). In sum, while the new procedures are ostensibly meant to be transparent, they raise questions as to how extensive and meaningful public involvement in decision making will be.

These significant and substantial departures regarding both policy and procedure beg the question: Has the Forest Service exceeded its Congressional mandate in these proposed rules? As noted above, for over a century Congress has expressed its will that the nation's forests be managed by the philosophy of multiple use and sustained yield. In elevating such amorphous concepts as "ecosystem integrity" and "ecological sustainability" to such exclusive heights and by introducing a benchmark of sustainability based on ecosystem variability prior to the arrival of Europeans in North America, the Forest Service certainly pushes if not breaches the envelope of the delegation of powers doctrine so integral to the Constitution.

Article IV, section 3, clause 2, of the Constitution grants exclusive authority over the use and enjoyment of the federal lands to Congress:

The Congress shall have the Power to dispose of and make all needful rules and Regulations respecting the Territory or other Property belonging to the United States...

In exercising that authority over federal forest lands, Congress established the national forest system and legislated its management through a consistent body of laws all grounded on the principle of multiple use and sustained yield. Just as these statutes consistently endorse that fundamental principle, so also do they express Congressional intent that the Forest Service's jurisdiction does not extend to the exploration for and the extraction of mineral resources on forest lands. Those activities are governed by such statutes as the Mining Law of 1872, as amended, 30 U.S.C. §§ 22 et seq. and the Mineral Leasing Act of 1920, as amended, 30 U.S.C. §§ 181 et seq. Thus, for example, the Organic Act of 1897 specifically mandates "nor shall anything herein prohibit any person from entering...national forests for all proper and lawful purposes including that of prospecting, locating and developing mineral resources..."

16 U.S.C. § 478. Likewise, MUSYA provides explicitly that "nothing in that Act shall be construed so as to affect the use or administration of the mineral resources of national forest lands..." 16 U.S.C. § 528.

Furthermore, longstanding regulations adopted by the Forest Service, including those found at 36 CFR Part 228 and the current planning regulation set forth at 36 CFR Part 219, implement unmistakably the overriding concepts of multiple use and sustained yield while acknowledging unequivocally that the Forest Service does not have discretionary planning authority over mineral exploration and production: "It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for management of such resources is in the Secretary of the Interior." 36 CFR § 228.1.

By sublimating the concepts of multiple use and sustained yield to the vague and malleable proposition of "ecological sustainability" and by failing to state expressly that the proposed rule is not intended to circumscribe fundamental rights to engage in mineral exploration and extraction on federal forest lands, the proposed rule either ignores or is aggressively indifferent to more than a century of Congressional and executive branch law and policy governing the appropriate stewardship of the national forest system. In its report to Secretary Glickman, the Committee of Scientists may have unwittingly revealed how regulatory zealotry, either oblivious or hostile to Constitutional principles, can work mischief in the rulemaking arena. Noting that "Congress has shown little inclination to address, with new authorizing language, the appropriate uses of the national forests in the 23 years since NFMA," the Committee goes on to declare that, "Given Congress's apparent reluctance to harmonize the environmental laws through legislation, it appears that administrative reform is the best route for overcoming these problems." Committee Report at pp. 2 and 173.

To be sure, everyone can agree that there are "problems" associated with the current forest management planning system. Serious questions arise, however, as to whether the Forest Service possesses the authority to provide the sweepingly radical solution it has proposed.

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THE D.C. CIRCUIT'S MOLYCORP DECISION

Steven G. Barringer
Dickstein, Shapiro, Morin & Oshinsky LLP

With its December 17, 1999 decision in Molycorp, Inc. v. Environmental Protection Agency, the Court of Appeals for the D.C. Circuit may inspire some rethinking of the role in government of agency guidance and policy statements. 197 F.3d 543 (D.C. Cir. 1999). By indicating in dicta that agency guidance should not be accorded weight in an enforcement action, the Court got the attention of EPA and raised significant questions about how EPA and other agencies write and use their informal interpretations of the law.

Background of Molycorp
At issue in Molycorp was a 1038-page document drafted by EPA to provide guidance to the mining industry on the status of its solid wastes under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA"). The document - Identification and Description of Mineral Processing Sectors and Waste Streams ("The Background Document") - was developed by EPA in 1995 as technical support for its proposed regulation imposing land disposal restrictions on newly identified hazardous mineral processing wastes. 61 Fed. Reg. 2238 (January 25, 1996). Among other things, the Background Document includes EPA's determinations regarding whether particular mining wastes are from "benefication" or "mineral processing," an important legal distinction created by RCRA's so-called Bevill Amendment and further defined by EPA in binding regulations. See 42 U.S.C. § 6921(b)(3)(A)(ii); 40 C.F.R. § 261.4(b)(7).

EPA introduced and described the Background Document in its proposed rule preamble, requested comments on the document and suggested it might even adopt the Document's determinations as a binding rule. 61 Fed. Reg. at 2354. EPA revised the Document extensively in response to the comments it received, but ultimately decided against making the document into a rule. 63 Fed. Reg. 28556, 28584 (May 26, 1998). Rather, EPA concluded it would use the document to provide "useful guidance to the public" about the applicability of RCRA to wastes generated by the mining industry. Id.

Molycorp's Petition to the D.C. Circuit
Molycorp, a California producer of rare earth metals, petitioned the D.C. Circuit Court to invalidate the Document's beneficiation/processing determinations, arguing that they constitute a regulation. The Court never reached the substance of Molycorp's claim; rather, it found three separate grounds upon which to dismiss the petition for lack of subject matter jurisdiction.

The Court first distinguished agency guidance, over which it has no jurisdiction, from a legally binding rule, which it does have jurisdiction to review: "An agency policy statement does not seek to impose or elaborate or interpret a legal norm. It merely represents an agency position with respect to how it will treat - typically enforce - the governing legal norm." 197 F.3d at 546. The Court recognized as the primary distinction between a substantive rule and agency guidance "whether an agency intends to bind itself to a particular legal position." Id.

EPA asserted to the Court that the Background Document is not binding on any party and therefore is not a regulation. 197 F.3d at 546. The Court agreed: "The document does not set out an interpretation of RCRA or of the EPA's regulations; it does not impose obligations on regulated interests or on the EPA. Id. In truth, the Court was wrong about the content of the Background Document. Even a cursory review of it makes clear that EPA did indeed create the document to interpret RCRA, and the Document contains interpretations that reach far beyond the text of EPA's regulations.

Though EPA's advocacy was effective, it also provoked the following unexpected insight from the Court: "We take [EPA's position on the Background Document] to mean only, as counsel assured us at oral argument, that the agency is advising the public as to its present enforcement inclinations - not that the document itself would be given any weight at all in enforcement proceedings." Id. The Court continued: "[A]ny enforcement proceeding against [Molycorp] would be based not on the document (which has no legal effect) but on the underlying 1989 regulation. Molycorp is no worse off than it would be had the document not been issued at all." Id. at 547. Almost certainly, these observations by the Court were an unwelcome surprise to EPA, and an unintended consequence of its arguments in court. Though likely dicta, the statements nonetheless go to the heart of how EPA employs guidance as part of its regulatory programs.

The Implications of Molycorp for EPA's Regulatory Methods
EPA uses guidance and policy statements extensively to run its regulatory programs, and thus the weight they are accorded in enforcement is of considerable importance to the Agency. For this reason, the Molycorp dicta are almost certainly of great concern to EPA. EPA has published no official statement on the case, but its officials are said by insiders to be "despondent" about the Court's language limiting the use of the Background Document.

That reaction, if accurate, provides some insight into why EPA uses informal interpretation. Guidance and policy statements are by all accounts more flexible than rules, and can be adopted and modified more quickly, with fewer procedural hurdles. As EPA's thinking about a regulatory program evolves, it issues, revises and updates guidance. This is a normal aspect of regulatory programs, and it is entirely proper in the normal case for EPA to do so.

EPA also routinely makes the disclaimer that its guidance does not bind it or anyone else, but the fact is that EPA often expects that its guidance will be "functionally" binding on regulated entities. That is the case because courts typically grant EPA and other agencies substantial deference to interpret their statutory authorities. In the landmark Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), the Supreme Court declared that courts must defer to agency interpretations of their authority as long as they are "based on a permissible construction of the statute." Though the Chevron Court was addressing an agency's formal interpretation of a statute through rulemaking, federal courts also grant some deference to informal agency guidance. See, e.g., Michael C., a Minor, v. Radnor Township School District, 202 F.3d 642 (3d Cir. 2000)(citing Chevron and according deference to Policy Memorandum).

If anything, courts grant even more deference to an agency's interpretation of its own rules than to the agency's interpretation of statutory authority. Auer v. Robbins, 519 U.S. 452, 461 (1997)("Because the salary-basis test is a creature of the Secretary's own regulations, his interpretation of it is, under our jurisprudence, controlling unless 'plainly erroneous or inconsistent with the regulations.'" [citations omitted]); Neal v. Bridges, 198 F.3d 763 (9^th Cir. 1999)("[F]ederal courts are to defer substantially to an agency's interpretation of its own regulations," especially when the interpretation comes from "the administrative agency that is explicitly authorized to enforce"); Capital Network System, Inc., v. F.C.C., 28 F.3d 201 (D.C. Cir. 1994)("Reviewing courts accord even greater deference to agency interpretations of agency rules than they do to agency interpretations of ambiguous statutory terms").

These established precedents explain why EPA's informal interpretations can have the same outcome as binding rules. EPA knows that its guidance and policy statements - while supposedly non-binding - usually will be granted deference by courts in enforcement actions. In fact, even without invoking Chevron or similar authorities, courts routinely defer to agency interpretations of complex regulations. There is a very practical reason for this de facto deference: it is undeniably easier for a court to accept the litigating agency's position at face-value than it is for the court to become familiar with the agency's regulations and decide the case on the merits between the litigants.

Finally, violation of federal environmental laws can result in very serious criminal penalties, including imprisonment. In short, even though agency guidance is "non-binding," the legal cards are stacked against the party that chooses to act inconsistently with that guidance. Most environmental professionals understand that EPA goes into court with a distinct advantage, and will not defend themselves on the chance that a court might disagree with EPA's "non-binding" interpretations of the law. Further, EPA understands this dynamic well. The Agency knows that while its guidance documents are nominally "non-binding," they can function substantially like regulations because the regulated community will follow them rather than gamble on losing an enforcement action in which the court defers to the Agency. Therefore, EPA can "regulate" quickly by issuing guidance, and can be confident that the vast majority of those affected will comply. The person who ignores agency guidance, or who acts inconsistently with agency guidance because he believes himself not to be bound, does so at his own peril.

Molycorp is a notable decision precisely because it seems inconsistent with this rather settled (if flawed) regulatory milieu. The concept of Chevron deference, which is ubiquitous in litigation over federal administrative actions, is completely missing from the Court's decision. It is possible that the Court's comments, peripheral as they were to the dismissal for lack of jurisdiction, were truly gratuitous, not well considered, and not consistent with granting Chevron deference. Certainly, if they are judged to be dicta, the Court's observations are not binding on it or on any other federal court, although they may be helpful to people facing EPA enforcement actions.

Another possibility is that the Court saw the Background Document - accepting EPA's characterization of it - as merely an expression of EPA's enforcement policy, and not as substantive legal interpretation. See 197 F.3d at 546 (Court accepting EPA's explanation of the Background Document as "advising the public as to [EPA's] present enforcement inclinations"). If so, it is not difficult to see how this and other courts might disavow or distinguish these comments, or limit their significance to guidance expressing agency "enforcement inclinations" as opposed to substantive legal interpretation or policy.

Even if future courts do not build on the Molycorp language, it is hard to see how EPA will ever use the Background Document in any RCRA enforcement proceeding. EPA surely contributed to this result by minimizing the importance of the Background Document in its arguments to the Court. Indeed, the Court's description of the Background Document (adopted from EPA) almost trivializes it, saying in effect that it means nothing at all to the regulated community. Id. at 547 ("Molycorp is no worse off than it would be had the document not been issued at all."). This amazing statement raises the related questions of why guidance of so little import is so long (1038 pages), and why, if so unimportant, EPA bothered to draft it at all. It is clear that while EPA did not expect its Background Document to be binding, it did expect the guidance it contains to receive deference from federal courts in enforcement actions. Molycorp appears to preclude that deference, at least to this particular piece of guidance. EPA may have won the litigation by minimizing the importance of the Background Document, but in the process may have tied its own hands in ever using the Background Document for its originally intended purpose.

Finally, it is possible that the Court intentionally used its language to send EPA a substantive message about its use of guidance to regulate. The decision can be read to say to EPA that it may not trivialize the substantive importance of its guidance and simultaneously expect the guidance to enjoy deference from the federal judiciary. This reading would explain why the Court did not mention Chevron, and why it went out of its way to emphasize that the Background Document would not receive "any weight at all" in future enforcement proceedings. Id. at 546. That statement seems to preclude judicial deference of any kind to the document, at least in the enforcement context.

Ironically, the Molycorp Court's final words were: "It is difficult for us to understand why this case was brought before us at this time." Id. at 547. In contrast, both EPA and members of the regulated community understand how EPA sometimes regulates through guidance, and how Molycorp could change that. As of this date, no federal court has cited Molycorp. It is much too early to predict how these interesting statements will age, and whether they will be narrowly read, or whether they will take root as a major new constraint on agency regulatory power.