Forest Service cites fairy slipper orchid as reason to ban new mining claims
The U.S. Forest Service proposed nearly 18,000 acres of land in the Black Hills National Forest to be “withdrawn from mineral entry,” which means no new mining claims would be allowed.
The proposal was recorded in the Federal Register on Sept. 24, 2015, but Sam Griner, a member of the Northern Hills Prospectors — a local chapter of the Gold Prospectors Association of America — said he wouldn’t have even known about the proposed withdrawal had he not scanned the Forest Service’s Schedule of Planned Action (SOPA) website.
“They were surprised that anybody had caught it,” Griner said. “They expected it to just go through. The Travel Management Plan … just went through and nobody knew to comment on it. It went unchecked and nobody made any comments.”
The Travel Management Plan that the Forest Service issued back in 2010 shut down roads, affecting area prospectors but primarily impacting hunters, Griner said.
After learning about the proposal to designate nearly 18,000 acres as new Research Natural Areas (RNA) and Botanical Areas (BA), Griner took action action, attending public meetings and sending letters of opposition to nearly every agency and public official he could think of. The public comment period for the proposed mineral withdrawal closed Dec. 23, 2015.
Griner attended a National Forest Advisory Board Meeting on March 16 at the Mystic Ranger District to oppose the withdrawal. During the meeting, Deputy Forest Supervisor Jerry Krueger said that if approved, the mineral withdrawal would last for two decades. After 20 years, the Forest Service would have to reapply with the Bureau of Land Management for another withdrawal, according to the meeting minutes. Because BLM manages the minerals within the Black Hills National Forest, it — along with the Secretary of the Interior — must give approval for the withdrawal.
In response to Griner’s land closure concerns, Former Black Hills National Forest Supervisor Craig Bobzien said, “What we are also doing is preserving. During the Forest Planning process in 2005, we found that a number of these areas should be preserved,” according to the meeting minutes. But, Krueger said the plan to withdraw the various sites from mineral entry goes back as far as the late ’90s.
Northern Hills Prospectors President James Van Hout said the Forest Service’s response to the prospector’s concerns has been disingenuous, at best.
“They just give us lip service, ‘Oh yeah, we’ll take your comments and concerns and we’ll discuss them,’ ” Van Hout said. “We know exactly where they went. They went into file 13 because they weren’t what they wanted to hear, and we know that. We’re not stupid.”
Van Hout said the Forest Service geologist treated prospectors with the same attitude during a meeting with the agency last October about the areas where mining would be banned.
“Their geologist had the gall and thought we were just stupid. He made the statement that the U.S. Geological Survey says there’s no minable minerals,” Van Hout said. “I plainly asked him, ‘Have you tested it personally?’ He said, ‘No.’ I said, ‘Then how do you know there’s not?’ Boots on the ground is the only way you’re going to find out. Then, I asked him how old the report was. The ’50s? And, he didn’t deny it.”
Furthermore, the report related to commercial mining, not prospecting and small-scale mining, Van Hout said.
“Basically, the report was saying there’s no commercially viable minerals there, meaning no large mining company is going to want to go in and mine it because it us such rough territory and terrain that it would be cost prohibitive for them to go in and mine,” Van Hout said. “But for the small miner, there’s lots of gold in there. Seventeen of 22 of the largest nuggets that came out the Black Hills came out of the major area they want to close.”
At the same October meeting in Rapid City, Krueger said: “We need to take special measures to protect them [Black Hills] in terms of what can occur there, and so one of the concerns is commercial mineral withdrawal entry,” according to a news report by KEVN Black Hills FOX.
Krueger later said that it was not the Forest Service’s intention to keep out the small-scale miner, but that because of the way the mining laws are written, there is no distinction between small-scale miners and commercial miners.
“Initially, we thought that by doing the mineral withdrawal that it would not affect the recreational prospecting groups,” Krueger said. “When we pursued that —again through the public meetings — we were asked to take a look at that through legal channels. The mineral withdrawal covered any mineral withdrawal within these designated areas, and that included recreational prospecting.”
Although prospectors may not feel like their voices are being heard, Krueger said they managed to get the withdrawal area down from nearly 18,000 acres to 11,000 acres by negotiating terms of the contract with BLM.
“During the public meetings, which included members of your group, we received feedback that they would like us to pursue in terms of the legal description,” Krueger said. “We’re trying to capture a non-linear polygon with a square block legal description.”
Initially, BLM instructed the Forest Service to submit the proposed withdrawal using a minimum size of 40-acre blocks, so everywhere a 40-acre block touched the perimeter of the withdrawal, the Forest Service had to include that 40 acres. But, the Forest Service was able to negotiate the legal description down to 2.5-acre blocks, Krueger said.
“It really helped us all out. We could much more accurately capture the research footprint of the Research Natural Area or Botanical Area using a much smaller legal description,” Krueger said.
According to the Forest Service website, the RNA areas “were selected because of their relatively pristine nature and form part of a national network of ecological areas designated in perpetuity for non-manipulative research, education and biodiversity conservation. Botanical Areas were selected because of unique biological features and rare natural communities.”
One of these “unique biological features” includes the calypso bulbosa, also known as the “fairy slipper orchid,” which has a G5 national rating and a S3 state rating, according to the South Dakota Game Fish and Parks website. The scale runs from 1 to 5 with 5 being the most plentiful and 1 being the scarcest. The flower has held a G5 ranking for more than a decade, according to the Forest Service website, which noted that the species is “secure, widespread and abundant” in the United States.
Still, these Cinderella sounding flora are being used as a premise to ban new mining claims.
“Among those are the lesser yellow lady slipper, which is one of my personal favorites,” Black Hills National Forest Botanist Chelsea Monks said in an interview with South Dakota Public Broadcast. “But, the neat thing about these areas is not just the species that are there, but the assemblage of species that are there, meaning there are species that are co-occurring that don’t normally occur together. So, that’s one of the values that we designated these areas to preserve.”
Monks is responsible for taking public comments on the proposed withdrawal and oversees the Botanical Areas within the Black Hills National Forest. The orchids may not be endangered, but they are a favorite meal for deer, Van Hout said.
“Deer love to eat [the fairy slipper] because of the vanilla aroma to it,” Van Hout said. “You can go down one draw, and there will be huge numbers of this flower. You can go over the next ridge into the next draw and you won’t find any or just a few, so they go into those and go, ‘Oh dear, this is a scarce flower.’ It’s ridiculous.”
Krueger said there is no actual risk of endangerment for the plant life in these areas. Instead, the main purpose for withdrawal is scientific study and preservation.
“So I guess, in the current management scheme there is no threat. All we’re looking to do with this is to remove the potential for development, which would disturb the sites,” Krueger said.
The Forest Service currently has five Research Natural Areas and eight Botanical Areas in and around the Black Hills National Forest. Four of the five RNAs were designated in September 2011, including: Hay Creek in Crook County, Wyoming; Fanny/Boles in Custer County, South Dakota; and Canyon City and North Fork Castle Creek in Pennington County, South Dakota.
Withdrawal means that no new mining claims can be staked, but creating RNAs and BAs have the added limitation of only allowing non-motorized transportation, meaning these areas can only be reached via horseback or on foot, according to the Black Hills National Forest’s online brochure titled “What are Research Natural Areas and Botanical Areas?” This problem with access also came up in 2010 when the Forest Service issued its new Travel Management Plan.
“What really ticked me off is that they won’t allow disabled people to get to the claim. Everybody else can get to the claim, but it’s the disabled people who are a part of that club who can’t get to the claim, and the Forest Service isn’t doing anything about it,” Griner said. “That’s what really put me over the top and what really drove me.”
However, Krueger said the proposed withdrawal to designate RNA and BA areas would not modify the existing Travel Management Plan.
“I don’t have a map that overlays the current Travel Management Plan over the Botanical Areas or the Research Natural Areas, but I can tell you — knowing how many trails we have in the forest and how many roads we have — that I’m quite sure that there are existing trails or roads in those areas.”
Griner has enlisted the help of the American Mining Rights Association to deal with this potential withdrawal. In fact, Griner was one of the first miners to call on AMRA for support three years ago when the Forest Service first started shutting down roads and access to mining claims in his area, said AMRA President Shannon Poe.
“The Forest Service is trying to claim all these different flowers, and it’s all pushed by the environmental movement,” Poe said. “They just want to close all this land where these people have mining claims. They’ve been gating and locking and blocking. It’s the same story over and over again. It is frustrating, because he’s reached out to senators, representatives, and he’s not getting a lot of help or traction. Something we’re going to bring a lot more attention to moving forward is putting pressure on lawmakers to step up and help the people they’re supposed to represent.”
Aside from getting AMRA involved, Van Hout said it is important to recruit fellow outdoor users.
“We need to start getting the horseback riding groups and biking groups and hunters and fisherman involved,” Van Hout said. “Mining is the main target, but they’re a target, too. They started with the Travel Management Plan. The hunters used to be able to drive to their certain areas and then walk around and hunt, but now have to walk in two or three miles to get to their favorite hunting grounds. I don’t know if you’ve tried to drag a deer or elk three miles … They’ve hit the hunters a little bit, but they’ll hit everybody pretty soon.”
According to the Forest Service’s Schedule of Planned Actions, a decision is to be made concerning the ban on new mining claims September next year.
“September 2017 is two years from the date the Notice of Application for Withdrawal was published in the Federal Register and is the date by which the BLM should make a decision of whether or not to withdraw the areas,” Monks stated in an email correspondence with Griner on Aug. 25. “Right now the Forest Service interdisciplinary team is working on analysis for this project and does not yet have findings. Once we have completed our analysis, the Regional Forester will send a recommendation to the BLM and they will make the final decision.”
The butting of heads with federal agencies has been rampant across the West in the past few years, but Van Hout said it has never been a problem in the Black Hills until now, and he definitely sees a shift in dynamics, he said.
“We never had to deal with this … The Black Hills have always been pretty much conservative. You did what you want to do as long as you weren’t stepping on anybody’s toes or causing problems. They left everybody alone,” Van Hout said. “The new Forest Service — they’re starting to close us down now. They haven’t closed us yet, but they’re trying.”
Griner said he feels stabbed in the back by an agency that is supposed to be representative of the people and working for the people.
“With some people, you give them a bow and arrow for a present and they give you a T-shirt with a bulls-eye on it,” Griner said.
Sarah Reijonen is a freelance writer based in California. She can be reached at firstname.lastname@example.org.
BLACK HILLS NATIONAL FOREST
Rules & Restrictions
Activities allowed in Recreational National Areas (RNA):
• Dispersed Recreation: Non-motorized / Non-mechanized dispersed use including hunting and fishing is allowed without developments such as trails or signs
• Research: Research methods are non-destructive and non-manipulative.
• Education: Opportunities are available to learn about natural processes using methods that are non-destructive and non-manipulative.
• Transportation: Foot and horse travel only
• Vegetation Management: Vegetation management including livestock grazing is used only as needed to conserve the biological characteristics for which the RNA was established using methods with the least impact on desired RNA ecological processes. All lease applications will have “no surface occupancy” stipulation.
• No mineral material permits will be issued.
Activities allowed in Botanical Areas (BA):
• Non-motorized dispersed recreation
• On-road motorized vehicles use is authorized in some areas; however other areas are
designated Roadless Areas
• Minimal timber harvest only when necessary to maintain, restore or enhance ecological values
• Livestock grazing if it does not conflict with the ecological values
• No new mineral material permits
— Source: Black Hills National Forest website
Article as featured in the Pick & Shovel Gazette October-November 2016 edition