Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

Closing the Mining Loophole for Wild and Scenic Rivers

The federal public lands along more than half of the stream mileage in the National Wild and Scenic Rivers System (NWSRS) can be mined, notwithstanding its congressional “protection” in wild and scenic rivers (WSRs). This is because the Wild and Scenic Rivers Act of 1968 (WSRA) established three different classifications for WSR segments—wild, scenic, and recreational—and banned mining or not based on the classifications. The WSRA needs fixing to offer uniform protection against mining in the NWSRS.

The Chetco Wild and Scenic River near the mouth of Boulder Creek. Above the mouth the Chetco WSR is classified as "wild" (no mining) and below the mouth it is classified as "scenic" (and eventually "recreational" (mining allowed in both). Source: Lee Webb, US Forest Service.

The Chetco Wild and Scenic River near the mouth of Boulder Creek. Above the mouth the Chetco WSR is classified as "wild" (no mining) and below the mouth it is classified as "scenic" (and eventually "recreational" (mining allowed in both). Source: Lee Webb, US Forest Service.

Wild, Scenic, or Recreational: What’s the Difference?

To be eligible for inclusion in the NWSRS, a river must be free-flowing and have at least one “outstandingly remarkable” value (ORV)—for example, scenic, recreational, geological, fish and wildlife, historic, cultural, or other similar values. If included in the system, the river “shall be classified, designated, and administered” as either wild, scenic, or recreational, defined by the WSRA as follows:

Wild river areas—Those rivers or sections of rivers that are free of impoundments and generally inaccessible except by trail, with watersheds or shorelines essentially primitive and waters unpolluted. These represent vestiges of primitive America.

Scenic river areas—Those rivers or sections of rivers that are free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads.

Recreational river areas—Those rivers or sections of rivers that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past.

Here is a shorthand summary: a wild river segment has no roads, a scenic river segment has a road crossing or two, and a recreational river segment has a road along it.

Nationally, a total of 12,733.5 miles of streams have been designated by Congress as wild and scenic rivers. Wild segments total 6,206.9 miles, scenic segments total 2,715.8 miles, and recreational segments total 3,744.8 miles.

In Oregon, a total 1,908.0 miles of streams have been designated by Congress as wild and scenic rivers. Wild segments total 675.7 miles, scenic segments total 397.9 miles, and recreational segments total 834.4 miles.

Protections—or Lack Thereof—Against Mining in the NWSRS

Only those stream segments classified as wild under the WSRA are, upon their establishment, statutorily withdrawn from the future application of the federal mining laws. Any such withdrawal is “subject to valid existing rights,” which means that if a claim has previously been filed and a commercial discovery has been made, the claim can still be mined unless bought out by the federal government. Those wild and scenic river segments classified as scenic or recreational have no congressional ban on mining.

Regardless of the segment classification, the WSRA commands that “each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system.” So the only difference between the classifications is that those segments classified as wild are withdrawn from mining.

And there’s the rub. The outstandingly remarkable values of a wild and scenic river shouldn’t be punished by mining simply because of the presence of a road.

Administrative withdrawals are one tool that can be used to redress this situation. While 51 percent of WSRs nationally and 35 percent in Oregon have no congressional ban on mining, in some cases the Forest Service or the Bureau of Land Management (BLM) has administratively withdrawn the lands pursuant to the withdrawal provision of the Federal Land Policy and Management Act of 1976, as amended. Such withdrawals can last a maximum of twenty years (they can be renewed), and because such withdrawals are bureaucratically difficult to do (alas, intentionally so), the two federal agencies tend not to do them where they believe there is no mineral threat to a WSR. Where there are mineral threats to a WSR in the form of hardrock mining, the mining claims have likely already been filed and are not automatically extinguished due to an administrative withdrawal. However, an administrative withdrawal does make the mining claimant actually have to prove a commercial discovery before that claimant can mine.

The Case of the Chetco Wild and Scenic River

Consider the poor Chetco Wild and Scenic River. Established in 1988 to protect and enhance the outstandingly remarkable values of fisheries, water quality, and recreation, the Chetco WSR totals 44.5 miles in length, only 27.5 of which are classified as wild. (Coincidentally, the Chetco’s wild segment is essentially all in the Kalmiopsis Wilderness, where new mining was already banned under the Wilderness Act.) The 8-mile scenic and 11-mile recreational segments downstream were open to the filing of private mining claims under the federal mining statutes.

In March 2012, the Seattle developer who held mining claims on these segments forfeited them by not paying his renewal fees. He said it was because of pending legislation (good).

On July 26, 2013, the BLM, at the request of the Forest Service, administratively withdrew 5,610 acres of National Forest System lands along the scenic- and recreational-classified segments of the Chetco WSR. The temporary five-year administrative withdrawal was done in aid of legislation then (and now) pending in Congress that would permanently withdraw the two stream segments, notwithstanding the default setting in the WSRA.

The temporary withdrawal covers the filing of mining claims for what are commonly known as hardrock minerals (such as gold) and leasing for what are commonly known as fluid minerals (such as oil and gas) and for geothermal development. The withdrawal does not cover sale of common minerals (such as sand and gravel).

Alas, this temporary administrative withdrawal will expire on July 26, 2018, unless renewed administratively by the Trump administration (don’t hold your breath) or permanently protected by an act of Congress.

The legislation that the temporary administrative withdrawal was done in aid of was first introduced in 2008 by Representative Peter DeFazio (D-4th-OR). The bill would have permanently withdrawn the scenic- and recreational-classified segments of the Chetco River from all forms of mining. (It would also have up-classified two stream miles to scenic from recreational and two stream miles to wild from scenic.) After DeFazio introduced the first Chetco protection provision, Senator Ron Wyden (D-OR) introduced companion legislation in the Senate. Both of them were instrumental in persuading/cajoling the Obama administration to institute the temporary administrative withdrawal.

The Chetco protection provision has yet to pass but has been reintroduced in various forms in every Congress since then. The freestanding bill or its legislative language has been included in sixteen pieces of congressional legislation since that time. Yet Congress still has not gotten its act together to save the Chetco from suction-dredge gold mining.

In this present, 115th Congress, the Chetco protection provision is in the proposed Southwest Oregon Watershed and Salmon Protection Act (H.R.310 and S.192). DeFazio’s House version is co-sponsored by Representative Jared Huffman (D-2nd-CA). Senator Ron Wyden’s Senate version is co-sponsored by Senator Jeff Merkley (D-OR).

Wyden has also introduced the proposed Oregon Wildlands Act (S.1548), cosponsored by Merkley, which also contains the Chetco protection provision and much more. This legislation would not only add 263.8 miles (portions of the Molalla and Nestucca rivers, Walker Creek, North Fork Silver Creek, Jenny Creek, Spring Creek, Lobster Creek, Elk Creek, Franklin Creek, and Wasson Creek, as well as numerous tributaries to the existing Rogue and Elk WSRs) to the NWSRS, it would also extend the Chetco protection provision to all of these additions to the NWSRS, be they wild, scenic, or recreational.

The Chetco River arises in the Kalmiopsis Wilderness and enters the Pacific Ocean at Brookings. The first 27.5 miles is classified as "wild" under the Wild and Scenic Rivers Act and mining is banned. The next 8 miles is classified as "scenic" and the next 11 miles after that as "recreational, both of which allow mining on federal public land. The darker grey is Rogue River-Siskiyou National Forest. That other wild and scenic river flowing south off the map into California is the North Fork Smith River. Source: www.rivers.gov.

The Chetco River arises in the Kalmiopsis Wilderness and enters the Pacific Ocean at Brookings. The first 27.5 miles is classified as "wild" under the Wild and Scenic Rivers Act and mining is banned. The next 8 miles is classified as "scenic" and the next 11 miles after that as "recreational, both of which allow mining on federal public land. The darker grey is Rogue River-Siskiyou National Forest. That other wild and scenic river flowing south off the map into California is the North Fork Smith River. Source: www.rivers.gov.

Legislative Fixes

Politically, the easiest, and therefore best, time to protect a wild and scenic river from mining is before the mining threat rears its ugly bulldozer.

Mineral withdrawals are a vital conservation tool even for public lands not known to have commercial minerals because technology can be created and markets can change to the point where what was safely nonviable for mining becomes acutely threatened by mining. For instance, as the market price of gold has increased dramatically, it has made more gold-bearing deposits commercially attractive. Cyanide heap leach mining (dig up twenty tons of earth, dump it into a heap, and douse it with cyanide to extract enough gold for a ring) has become economically and technologically viable. Fracking technology now threatens millions of acres of public and private lands with extraction of oil and gas at the expense of nature, water quality, the climate, and the taxpayer.

Certainly, all new additions to the NWSRS should have mining banned in all classifications. Best would be a nationwide amendment to the WSRA extending the legislative mining ban to all designated segments. The WSRA could also be amended for each state as the state’s delegation becomes open to doing so.