3809 Manual

Form 1221-2
(June 1969)

UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT

Release

MANUAL TRANSMITTAL SHEET

Date

3-335

9/17/2012
Subject
MS – 3809 – Surface Management
1. Explanation of Materials Transmitted: This release revises Manual Section 3809Surface Management in its entirety. The revised Manual incorporates changes in policies
resulting from the revision of regulations in 43 CFR 3809.

2. Reports Required: None.

3. Materials Canceled: The manual pages superseded by this release are listed under
“REMOVE” below. No other directives are superseded.

4. Filing Instructions: File as directed below.

REMOVE

INSERT

All of MS – 3809 (Release 3-118)
(21 Sheets)

MS – 3809 (27 pages)

/s/ Michael D. Nedd

Michael D. Nedd
Assistant Director, Minerals and Realty Management

Table of Contents
CHAPTER 1. OVERVIEW .......................................................................................... 1-1
1.1 Purpose .............................................................................................................. 1-1
1.2 Objective ........................................................................................................... 1-1
1.3 Authority ........................................................................................................... 1-1
A.
Statutes........................................................................................................... 1-1
B.
Regulations .................................................................................................... 1-1
1. 4 Responsibility .................................................................................................... 1-2
A.
The Director ................................................................................................... 1-2
B.
The State Director .......................................................................................... 1-2
C.
District, Field, and Monument Managers ...................................................... 1-3
D.
The Program Specialists ................................................................................ 1-4
E.
The Bureau of Land Management Delegation of Authority.......................... 1-5
1.5 References ......................................................................................................... 1-5
1.6 Policy. ................................................................................................................ 1-5
A.
The Mining Law of 1872. .............................................................................. 1-5
B.
Surface Resources Act of 1955 ..................................................................... 1-5
C.
The Mining and Minerals Policy Act of 1970 ............................................... 1-5
D.
The Federal Land Policy and Management Act of 1976 ............................... 1-5
E.
The National Materials and Minerals Policy, Research and Development Act
of 1980 ........................................................................................................... 1-5
F.
Guiding Principles ......................................................................................... 1-6
G.
Specific Guidance .......................................................................................... 1-8
1.7 File and Record Maintenance. ........................................................................... 1-8
CHAPTER 2. MINERAL ACTIVITIES .................................................................... 2-1
2.1 Casual Use Activities ........................................................................................ 2-1
2.2 Operations Conducted under Notices ................................................................ 2-1
2.3 Operations Conducted under Plans of Operations ............................................ 2-3
2.4 Performance Standards ...................................................................................... 2-5
2.5 Financial Guarantees ......................................................................................... 2-5
2.6 Cessations and Abandonments .......................................................................... 2-9
2.7 Special Situations and Land Use Planning ........................................................ 2-9
2.8 Inspection ........................................................................................................ 2-12
2.9 Enforcement .................................................................................................... 2-12
2.10 Administrative Review .................................................................................... 2-13
2.11 Federal-State Agreements ................................................................................ 2-14
2.12 Records Management....................................................................................... 2-14

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CHAPTER 1. OVERVIEW
1.1

Purpose.

This manual section conveys the policies, procedures, and standards for Bureau of Land
Management (BLM) employees to implement the BLM’s surface management program.
This manual conveys our policies and procedures applicable to all surface disturbing
activity conducted under the Mining Law of 1872, as amended (Mining Law), the Federal
Land Policy and Management Act of 1976 (FLPMA), and intersecting laws as given
below under Authorities. Any interpretation of the guidance contained in this manual is
subordinate to the applicable legal and regulatory mandates.
1.2

Objective.

To facilitate the administration of exploration, mining, and milling activities of locatable
minerals on the public lands or interests in such lands in order to prevent unnecessary and
undue degradation (UUD) of these lands.
1.3

Authority.
A.

B.

Statutes.
1.

Mining Law of 1872 (30 U.S.C. § § 22-42) as amended

2.

Federal Land Policy and Management Act of 1976 (43 U.S.C. §§
1701) as amended

3.

Surface Resources Act of 1955 (30 U.S.C. § 612)

Regulations.
1. 43 CFR Subpart 3809 - Surface Management
2. 43 CFR Subpart 3715 - Use and Occupancy under the Mining Laws
3. 43 CFR Part 3730 - Public Law 359 Mining in Powersite Withdrawals
4. 43 CFR Subpart 3821 - O&C Lands
5. 43 CFR Part 3838 - Special Procedures for Locating and Recording
Mining Claims and Tunnel Sites on Stock Raising Homestead Act
(SRHA) Lands

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1.4

Responsibility.
A.

The Director, through the Assistant Director for Minerals and Realty
Management, provides national oversight for the BLM’s surface
management program. This includes developing and implementing
programmatic policies and guidance, and conducting internal program
reviews. Surface management program resources are allocated to the
BLM State Offices through the budget process, and program priorities are
set at the national level.

B.

The State Director provides oversight to the District/Field Offices
regarding program implementation in the State. This responsibility is
delegated to the appropriate Deputy State Director, who allocates surface
management program resources to the various District/Field Offices and
sets statewide priorities. The State Office provides technical support and
review to ensure uniform application of the regulations by the
District/Field Offices. The role and responsibilities of the State Office are
to:
1. Review and approve mineral reports before authorizing mining
operations on lands with suspected common variety minerals and lands
withdrawn from mineral entry under the Mining Laws.
2. Adjudicate all financial guarantees including acceptance, obligation,
termination, modifications, collection, and tracking bankruptcy filings.
The office responsible for adjudicating financial guarantees will
maintain the physical possession of all original bond contracts and
their accompanying financial instruments.
3. Conduct State Director reviews and forward appeals of the State
Director’s decision to the Office of Hearings and Appeals (OHA)
within 10 business days of receiving a notice of appeal.
4. Enter into statewide agreements concerning management of operations
authorized by the mining laws on public lands.
5. Provide oversight and program guidance to the District/Field Offices.
6. Provide technical support and review to ensure uniform application of
the regulations by the District/Field Offices.

7. Provide annual certification to the Director, as specified by directives,
that all reclamation cost estimates requiring review were examined and
financial guarantees are adequate to meet the requirements of the
regulations. Corrective actions plans will be developed for cases with
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problematic currency of reclamation cost estimate reviews or
inadequacy of financial guarantees.
C.

District, Field, and Monument Managers are responsible for the day-today
implementation of the surface management program. They provide
direction to Program Specialists to implement program activities and
resolve program issues. They ensure that the Program Specialists receive
the necessary technical, administrative, and safety training. In addition,
the managers oversee the program budget and budget submissions at
the District/Field Office level. The manager responsibilities are to:
1. Serve as the line officer for accepting Notices and approving or
denying Plans of Operations.
2. Establish the amounts of financial guarantees for reclamation of
exploration and mining activities.
3. Ensure that UUD does not occur from accepted Notices and approved
Plans of Operations.
4. Determine the appropriate enforcement action to take.
5. Forward appeals to the appropriate parties (either the State Director or
OHA, and Office of the Solicitor) within 10 business days of receiving
a Notice of Appeal.
6. Sponsor public visits to mines if requested.
7. Enter into agreements for management of site-specific operations.
8. Determine if escrow accounts are needed for a Notice or Plan of
Operations until the status of the mineral material is determined.
9. Maintain administrative records, case files, and the Legacy Rehost
System 2000 (LR2000) database in accordance with BLM data and
recordkeeping standards.
10. Ensure that the qualifications of the program specialists are
appropriate for the scope of the duties performed.
11. Organize interdisciplinary teams (ID Teams), if necessary and when
appropriate, to conduct environmental analysis and verify an
operation’s compliance with the terms and conditions of 43 CFR
Subpart 3809.

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D.

The program specialists, acting through the District/Field Manager, are
responsible for the day-to-day implementation of the surface management
program. They coordinate with other BLM resource specialists and
applicable State or Federal agencies in the review of Notices and Plans of
Operations. The roles and responsibilities are to:
1. Review submitted Notices, Plans of Operations, and associated
modifications.
2. Review and verify the reclamation cost estimates submitted by the
operator for proposed activities and recommend to the manager the
reclamation cost estimate amount.
3. Identify the necessity for and require a trust fund or other funding
mechanism to ensure long-term post-mining maintenance, including
treatment to achieve long-term water quality standards.
4. Conduct field inspections and make compliance determinations for
operations conducted under a Notice or Plan.
5. Identify situations of noncompliance or prohibited actions and
recommend corrective actions to the manager.
6. Ensure enforcement actions are implemented and monitored for a
noncompliance situation.
7. Serve as the main contact between the BLM and an operator
conducting activities on public lands.
8. Prepare necessary documents to implement cost recovery.
9. Prepare, or coordinate preparation of, the appropriate National
Environmental Policy Act (NEPA) documents for approval of Plans of
Operations and associated Plan modifications.
10. Prepare, or cause to be prepared, mineral reports for determining
mining claim validity before approving mining activity within a
withdrawn area, or prepare, or cause to be prepared, other
determinations before approving operations under the Mining Law.

11. Receive and properly handle confidential business information and
information protected under the Privacy Act. Maintain administrative
records and case files for surface management activities, and update
the LR2000 database in accordance with BLM standards.
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E.

1.5

The Bureau of Land Management Delegation of Authority Manual 1203
and State Manual Supplements should also be consulted. These manuals
are updated on a regular basis and clarify the level at which decisionmaking authority is held within a State.

References.

See BLM Handbook H-3809-1.
1.6

Policy.
A.

The Mining Law of 1872, as amended (30 U.S.C. § 22-42) and BLM’s
implementing regulations at 43 CFR Part 3830), invites citizens to search
for, discover, and develop valuable mineral deposits on public domain
lands open to mineral entry.

B.

Surface Resources Act of 1955 (30 U.S.C. § 612) provides for the multiple
use of the lands and surface resources of mining claims. All surface rights
of unpatented mining claims located after the Act are subject to the right
of the United States, its permittees, and licensees to use so much of the
surface as necessary or for access to other lands; however, uses by the
United States, its permittees or licensees, will be such as not to materially
interfere with prospecting, mining or processing operations or uses
reasonably incident thereto.

C.

The Mining and Minerals Policy Act of 1970 (30 U.S.C. § 21a) declares
that it is the continuing policy of the Federal Government to foster and
encourage private enterprise in the development of a stable domestic
minerals industry and the orderly and economic development of domestic
mineral resources.

D.

The Federal Land Policy and Management Act of 1976 (FLPMA) (43
U.S.C. §§ 1701, 1732) reiterates that the 1970 Mining and Minerals Policy
Act will be implemented and directs that public lands be managed in a
manner that recognizes the Nation’s need for domestic sources of minerals
and other resources. FLPMA also requires the Secretary of the Interior to
take any action necessary to prevent unnecessary or undue degradation of
the lands.

E.

The National Materials and Minerals Policy, Research and Development
Act of 1980 (30 U.S.C. §§ 1602, 1603) restates the need to implement the
Mining and Mineral Policy Act of 1970 and requires the Secretary of the
Interior to improve the quality of minerals data in Federal land use
decision-making.
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F.

Guiding Principles. Consistent with these Acts, the following principles
will guide the BLM in managing locatable mineral resources on public
lands:
1. The BLM land use planning and multiple-use management decisions
will recognize that energy and mineral development can occur
concurrently or sequentially with other resource uses, providing that
appropriate stipulations or conditions of approval are incorporated into
authorizations to prevent unnecessary or undue degradation, reduce
environmental impacts, and prevent jeopardy to federally listed species
or their designated critical habitat.
2. Land use plans will incorporate and consider energy and geological
assessments as well as energy and mineral potential on public lands
through existing energy, geology and mineral resource data, and to the
extent feasible, through new mineral assessments to determine mineral
potential. Partnerships will be considered with the National
Renewable Energy Laboratory and Federal and State agencies, such as
the U.S. Geological Survey and State Geologists, to obtain existing
and new data.
3. Withdrawals and other closures of the public land must be justified in
accordance with the Department of the Interior Land Withdrawal
Manual 603 DM 1 and the BLM regulations at 43 CFR Subpart 2310.
Petitions to the Secretary of the Interior for revocation of land
withdrawals in favor of energy and mineral development will be
evaluated through the land use planning process.
4. The BLM will work cooperatively with surface owners, claimants, and
operators in recognizing their rights on split estate lands. In the
absence of a Surface Owner Agreement and in managing development
of the Federal locatable mineral estate on non-Federal surface, the
BLM will take into consideration surface owner mitigation requests
from pre-development to final reclamation.
5. The BLM endorses Sustainable Development that encourages social,
environmental, and economic considerations before decisions are
made on energy and mineral operations. The BLM actively
encourages private industry development of public mineral resources,
and promotes practices and technology that least impact natural and
human resources.

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6. The BLM will adjudicate and process energy and mineral applications,
permits, operating plans, leases, rights-of-ways, and other land use
authorizations for public lands in a timely and efficient manner and in
a manner to prevent unnecessary or undue degradation. The BLM will
require financial assurances, including long-term trusts, to ensure
reclamation of the land and for other purposes authorized by law.
Prior to mine closure, reclamation considerations will include
partnerships to utilize the existing mine infrastructure for future
economic opportunities such as landfills, wind farms, biomass
facilities, and other industrial uses.
7. Energy and mineral-related permit applications will be reviewed
consistent with the requirements of NEPA and other environmental
laws. The BLM will work closely with Federal, State, and Tribal
governments to reduce duplication of effort while processing energy
and mineral-related permit applications.
8. The BLM will monitor locatable, salable, and leasable mineral
operations and energy operations to ensure proper resource recovery
and evaluation, production verification, diligence, and enforcement of
terms and conditions. The United States will receive fair market value
for its energy and mineral resources unless otherwise provided by
statute, and royalty rates will be monitored and evaluated to protect the
public interest.
9. The BLM will continue to develop e-Government solutions that will
provide for electronic submission and tracking of applications and use
Geographic Information System (GIS) technology for development of
energy and mineral resources. The BLM will continue to provide
public access to up-to-date mineral records, including spatial display
of all types of authorizations and mineral resource and ownership data.
Data systems, such as LR2000, will be kept current and best
management practices sought to reduce backlogs and to identify errors.
10. The BLM will strive to maintain a professional workforce in
adjudication, energy, geology, and engineering to support energy and
mineral development.
11. To the extent provided by law, regulation, secretarial order, and
written agreement with the Bureau of Indian Affairs, the BLM will
apply the above principles to the management of mineral resources and
operations on Indian Trust lands in order to comply with its Trust
Responsibilities.

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G.

1.7

Specific Guidance. Specific policy and procedural guidance are provided
in BLM Handbook H-3809-1.

File and Record Maintenance.

All records and data will be managed according to established records retention and
disposal policies. Refer to General Records Schedule (GRS)/BLM Combined Records
Schedule. Also see BLM Handbook H-3809-1.

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CHAPTER 2. MINERAL ACTIVITIES
2.1

Casual Use Activities.

Activities that ordinarily result in no or negligible disturbance of the public lands or
resources are termed “casual use.” Except in special situations, the operator may engage
in casual use activities without consulting, notifying, or seeking approval from the BLM.
2.2

Operations Conducted under Notices.

A Notice is required for exploration activity, greater than casual use, causing surface
disturbance of 5 acres or less on public lands. Activity causing more than negligible
disturbance that does not qualify as a notice-level operation, including all mining, must
be conducted under an approved Plan of Operations.
A.

Reviewing a Notice Filing.
1. Within 15 calendar days of receipt of a Notice, the BLM will review
the filing to determine if it is complete according to 43 CFR
3809.301(b). If a Notice does not contain the information required by
43 CFR 3809.301, the BLM will inform the operator of the additional
information that must be submitted as required under 43 CFR
3809.311
2. The BLM review of the complete Notice is to confirm that the
operations conducted under the Notice will not cause UUD.
3. The BLM review and acceptance of a Notice is part of its enforcement
program to ensure that operators comply with their legal responsibility
to not cause UUD. Any decision concerning the need, amount,
acceptability, and/or forfeiture of a financial guarantee is also part of
the BLM’s compliance and enforcement program, does not require an
environmental review under NEPA, and is not an approval of the
Notice.

B.

Commencing Operations. The BLM will notify the operator that the BLM
has received and reviewed the complete Notice, and that the BLM has
received and obligated the required financial guarantee.

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C.

Notice Modification.
1. At any time, the authorized officer may require the operator to modify
its Notice when UUD is occurring, or where the BLM determines a
modification is needed to prevent UUD from occurring.
2. The BLM will review the Notice modification in the same manner as a
new Notice.
3. To prevent UUD, the BLM may direct the operator to cease all
operations described in the original Notice pending completion of the
BLM’s review of the proposed modification.

D.

Change of Operator. The BLM will approve an operator change subject to
the new operator’s satisfactory financial guarantee being accepted and
obligated to cover the operation.

E.

Notice Extension.
1. When the operator notifies the BLM of its intent to extend the Notice
on or before the expiration date, the BLM must review the original
Notice and any additional information submitted by the operator to
verify that the Notice qualifies for an extension; that the operation
will not cause UUD; and that all information required for a complete
Notice has been submitted, including an acceptable revised
reclamation cost estimate (RCE). If it is determined the Notice is
complete and the operations as described in the filing will not cause
UUD, the District/Field Manager must issue a decision as to the
amount of the required financial guarantee.
2. When the operator notifies the BLM of its intent to extend the Notice
on or before the expiration date, but the BLM determines that (1)
additional information and/or an increase in the financial guarantee is
required and (2) that information and/or financial guarantee cannot be
obtained before the expiration date, the Notice may be extended,
conditioned upon the receipt of the required information and/or
financial guarantee within the time allowed.
3. The Notice expires when the operator fails to extend the Notice on or
before the expiration date, fails to provide any additional information
required by the BLM within the timeframe provided, or fails to
provide the BLM with an acceptable financial guarantee within the
time allowed.

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2.3

Operations Conducted under Plans of Operations.

A Plan of Operations is required for surface disturbance greater than casual use, unless
the activity qualifies for a Notice filing. Surface disturbance greater than casual use on
certain special category lands always requires the operator to file a Plan of Operations
and receive BLM approval.
A.

Plan Review.
1. The BLM will review the operator’s proposed Plan of Operations for
completeness and give notice within 30 calendar days as to the
review results. When Plans of Operations do not contain a complete
description of the proposed operations under 43 CFR §3809.401(b),
the BLM will identify the deficiencies and notify the operator.
2. Pending approval of a Plan of Operations, the BLM may approve any
operations that may be necessary for timely compliance with
requirements of Federal and State laws, subject to any terms and
conditions that may be needed to prevent UUD as provided for under
43 CFR 3809.411(b).
a.

The expedited approval of activity needed to
comply with environmental laws or mitigate
undesirable events must be of limited duration and
specify that the operator must follow up by filing
for approval of the surface disturbing activity under
the normal Plan of Operations process.

b.

As soon as practical, the appropriate level of NEPA
analysis must be completed for any activities
approved under this provision of the regulations.

c.

As soon as practical, the amount of the reclamation
financial guarantee will be modified to reflect the
additional reclamation liabilities on the ground.

3. The BLM must complete the environmental review required under
NEPA before it can issue a decision on the proposed Plan of
Operations, or on a modification to an existing Plan under 43 CFR
3809.432(a).
a.

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The Decision Record (DR) or Record of Decision
(ROD) will explain how the selected alternative
meets the requirements of the regulations to prevent
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UUD and is in conformance with the applicable
land use plan(s).

B.

b.

Mitigating measures to the operator’s proposed Plan
may be required as conditions of approval in the DR
or ROD, along with a brief rationale as to why the
measures are needed to prevent UUD.

c.

If the Plan contains any future occupancy, the
approval decision must also contain a written
determination of concurrence or non-concurrence
regarding the occupancy as per 43 CFR Subpart
3715.

Decision. The BLM will issue a decision regarding a Plan of Operations.
1. Disapproved. The BLM decision must clearly state why the
proposed Plan of Operations is inadequate in preventing UUD.
2. Approval Withheld. The BLM decision must clearly state why a
decision on the proposed Plan of Operations is being withheld. In
most cases, approval is withheld pending satisfaction of a procedural
or legal requirement.
3. Approval. Approve the complete Plan as submitted. The BLM
decision should reference the approved plan and associated
documents that describe the extent and limits of the authorized onthe-ground activities when the Plan of Operations is approved.
4. Conditional/Phased Approval. Approve the Plan subject to certain
conditions imposed to ensure the operation meets the performance
standards and does not result in UUD. The BLM decision must
clearly state the extent and limits of the authorized on-the-ground
activities when the Plan of Operations is approved. Where the
approved operation is to proceed in phases and the operator is posting
a financial guarantee for only a part of the operation, the extent and
limits of the on-the-ground activities that are being authorized must
be clearly stated in the BLM decision. For an authorized operation to
proceed to a new phase, additional BLM authorization, other than
those related to the RCE and financial guarantee, is not required.

C.

Commencing Operations. The operator must not begin operations until
the BLM approves the Plan of Operations and the BLM office responsible
for adjudicating financial guarantees issues a decision accepting and

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obligating the operator’s financial guarantee for the estimated cost of
reclamation.
D.

Plan of Operations Modification.
1. The operator may request a modification to the Plan, or if the BLM
identifies or anticipates UUD, the BLM may order the operator to
modify the Plan of Operations.
2. The BLM will review and approve a modification to a Plan of
Operations in the same manner as the BLM reviewed and approved
the initial Plan under 43 CFR 3809.401 through 3809.420 unless the
modification is considered minor. Whether an action requires a
formal modification or a minor modification depends in a large part
on what issues were identified during the initial Plan approval.

E.

2.4

Cost Recovery. The BLM regulations at 43 CFR 3800.5 require that an
applicant for a Plan of Operations must pay a processing fee on a case-bycase basis as described in 43 CFR 3000.11 whenever the BLM determines
that consideration of the Plan of Operations or Plan modification requires
the preparation of an Environmental Impact Statement (EIS)-level
environmental analysis.

Performance Standards.

The Federal Land Management and Policy Act (FLPMA) prohibits anyone using the
public lands from causing UUD of the public lands.

2.5

A.

Review. The responsible BLM office must review a Notice or Plan of
Operations to determine if the operations will cause UUD under 43 CFR
3809.415.

B.

Monitoring. The BLM must ensure that ongoing operators are complying
with the performance standards under 43 CFR 3809.420.

Financial Guarantees.
A.

Reviewing the Reclamation Cost Estimate (RCE). The BLM must review
the operator’s estimate of the cost to reclaim the operations to ensure the
estimate meets the requirements of 43 CFR 3809.552(a), 3809.552(c), and
3809.554(a).

1. The amount of the financial guarantee must cover the estimated cost
as if BLM were to contract with a third party to reclaim the operation
in accordance with the reclamation performance standards listed
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within 43 CFR 3809.420 and all reclamation and closure
requirements identified in the accepted Notice or approved Plan of
Operations.
2. If the BLM determines the operation, as proposed, will cause UUD,
the BLM will not make a determination as to the amount of the
required financial guarantee; therefore, the operation, as proposed,
may not be authorized.
3. It is the BLM’s responsibility to conduct a periodic review of the
RCE for ongoing operations to ensure the amount of the required
financial guarantee, including trust funds required under 43 CFR
3809.552(c), continues to meet the requirements of the regulations
and all reclamation requirements in the accepted Notice or approved
Plan of Operations.
4. BLM’s review and approval of a financial guarantee is part of its
compliance enforcement program to ensure that an operator fulfills
its reclamation responsibility and not cause UUD. Any decision
concerning the need, amount, acceptability, and/or forfeiture of a
financial guarantee is also part of the BLM’s compliance and
enforcement program. These decisions do not require an
environmental review under NEPA and are not to be included in
NEPA documents used to review a proposed operation.
B.

Review Results.
1. When an estimate for a proposed operation is not acceptable, the
BLM must notify the operator that the operator’s RCE is not
acceptable, identify the deficiencies or errors that led to that
conclusion, and request that an acceptable RCE be prepared.
2. For ongoing operations, where the BLM lacks the information
necessary to determine the adequacy of the existing cost estimate,
the BLM must notify the operator of the deficiencies or errors and
require that additional information or revised RCE be submitted
within the time allowed.
3. When the BLM completes a review of an acceptable RCE, the BLM
must document the findings.
a.

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For a new or modified Notice or Plan, the BLM will
issue a decision on the amount of the required
financial guarantee.
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C.

b.

For ongoing operations, where the amount of the
required financial guarantee increased, the BLM
will issue a decision stating the amount of the
required financial guarantee and the date, not to
exceed 60 days from receipt of the decision, when
an acceptable financial guarantee must be
submitted.

c.

For a Notice extension under 43 CFR 3809.333,
where the amount of the required financial
guarantee has increased, the BLM will issue a
decision stating the amount of the required financial
guarantee, that the Notice is conditionally extended
subject to meeting the financial guarantee
requirements, and the date, not to exceed 60 days
from receipt of the decision, when the required
financial guarantee must be submitted.

d.

For ongoing operations, if the RCE does not require
an adjustment in the required financial guarantee
amount and a decision is not issued, the BLM will
add a statement to the case file certifying that the
cost estimate and financial guarantee have been
reviewed in conformance with the established
review periods, and the estimate and guarantee
continue to meet the requirements of the
regulations.

Trust Funds or Other Funding Mechanisms. The regulations at 43 CFR
3809.552(c) allow the BLM to require an operator to establish a trust fund
or other funding mechanism available to the BLM to ensure the
continuation of any long-term, post-mining treatment or maintenance
requirements.
1. The BLM will require a financial guarantee for all identified operator
obligations, including post-reclamation obligations. The BLM may
require the establishment of a trust fund or other funding mechanism
to meet those post-reclamation obligations.
2. The determination that a trust fund is needed and/or the amount
needed in the fund will ordinarily occur during review of the
proposed operation. Rarely, changed circumstances may require that
the determination be made later.

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3. The BLM will not use 43 CFR 3809.552(c) to require an operator to
establish a fund to address unanticipated or theoretical events, such as
accidents, failures, or spills, or worst-case scenarios that have not
occurred. If such events occur, the BLM will require a trust fund or
other funding mechanism to address any long-term requirements.
4. Any post-reclamation obligations covered by the long-term funding
mechanism must be described in the approved Plan of Operations. If
the BLM determines the operator is responsible for post-reclamation
obligations not described in the original reclamation plan, the BLM
will direct the operator to submit a modification to the Plan of
Operations covering those obligations per 43 CFR 3809.431(b).
5. The BLM must periodically review long-term funding mechanisms
established under 43 CFR 3809.552(c) to ensure adequacy.
D.

Reduction of Financial Guarantee. When the operator has completed all
or any portion of the reclamation of the operations in accordance with the
Notice or Plan of Operations, the operator may request a reduction in the
amount of the required financial guarantee.
1. The BLM will inspect the reclaimed portion of the operation and
issue a decision on the required financial guarantee.
2. The BLM must ensure that any existing enforcement actions,
including noncompliance orders, are resolved before any release or
reduction of the financial guarantee requirements may be authorized.
3. The final reduction or release of the requirement to maintain a
financial guarantee for a Plan of Operations requires public
notification and a comment period.

E.

Release of Responsibility. Termination of the period of liability
under the financial guarantee does not release the mining claimant or
operator from responsibility for reclamation of the operations if the
reclamation fails to meet the standards of the regulations or the
reclamation responsibilities as specified in the filed Notice or
approved Plan of Operations.
1. The BLM will terminate the period of liability of a financial
guarantee when all obligations of the terms of the authorization have
been fulfilled, or payment of the bond proceeds (penal sum) is
received by the BLM, or when a satisfactory replacement financial
guarantee has been accepted by the BLM.

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2. Any release of the financial guarantee does not release or waive any
claim the BLM, or other persons, may have against any person under
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (CERCLA), as amended, or under any other
applicable statutes or regulations.
F.

Change in Land Ownership. When there is a change in the land status out
of public ownership, the BLM must determine if retention of all or part of
the financial guarantee is still warranted.

G.

Forfeiture of Financial Guarantee. The BLM may initiate forfeiture of all
or part of an operator’s financial guarantee for any project area or portion
of a project area if one the following occurs:
1. The operator or mining claimant is unable or unwilling to conduct
reclamation as provided for and as scheduled in the reclamation plan
or in accordance with the regulations.
2. The operator fails to meet the terms of the Notice or approved Plan of
Operations.
3. The operator defaults on any of the conditions under which the
operator obtained the financial guarantee.

2.6

2.7

Cessations and Abandonments.
A.

Abandoned Operations. If the BLM determines that operations are
abandoned, the BLM will issue a decision that identifies any remaining
reclamation obligations, and advise the operator that the BLM will initiate
forfeiture of the financial guarantee as provided for under 43 CFR
3809.595 through 3809.597 unless reclamation is completed by a specified
date.

B.

Forfeiture of Financial Guarantee. If the BLM determines that the
operator has abandoned the operation and the operator fails to complete
reclamation by the date specified in the abandoned operations decision,
the BLM will initiate forfeiture of the financial guarantee as provided
under 43 CFR 3809.595.

Special Situations and Land Use Planning.
A.

Withdrawn and Segregated Lands. The regulations at 43 CFR 3809.100
have special provisions that apply to proposed operations on segregated or
withdrawn lands.

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1. For withdrawn lands the BLM must conduct a validity examination
and determine that the mining claim(s) subject to the Notice or Plan
were valid, (1) as of the date of the withdrawal, and (2) as of the date
of the exam before approving a Plan or determining a Notice to be
complete. For withdrawn lands preceded by a segregation, the date
for which the BLM must determine validity is the date of the
segregation.
2. The BLM may decide to prepare a validity examination and report
before approving a Plan of Operations or accepting a Notice on lands
that are segregated and not formally withdrawn from the operation of
the Mining Law.
3. If the validity determination and mineral report conclude that the
mining claim was invalid, (1) at the time of the withdrawal or
segregation, or (2) at the time of the validity examination, the BLM
will not approve the Plan of Operations or accept the Notice, or allow
any other activities on the mining claim, except as necessary for the
operator to defend any pending contest proceeding.
4. If BLM has not completed the validity report, or has determined that
the claim is not valid, or if there is a pending contest proceeding for
the mining claim, certain activities may still be allowed.
a. The BLM may approve a Plan of Operations or
allow notice-level operations for the disputed
mining claim if the operations are limited to taking
samples to confirm or corroborate mineral
exposures that were physically accessible on the
mining claim before the segregation or withdrawal
date. If the lands are subject to segregation
followed by a withdrawal with no change in land
status, then the earliest date applies.
b. The BLM may approve a Plan of Operations or
allow notice-level operations for the operator to
perform the minimum necessary annual assessment
work if required by 43 CFR 3836.
5. Accepted Notices or approved Plans of Operations that were in place
prior to the withdrawal or segregation date are not subject to the
mandatory valid existing rights determination procedures at 43 CFR
3809.100(a).

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6. Material modifications to accepted Notices or approved Plans of
Operations that were in place prior to the withdrawal or segregation
date are subject to the valid existing rights determination procedures
at 43 CFR 3809.100(a) if the modification postdates the withdrawal
or segregation.
B.

Common Variety Minerals. When a Plan of Operations or Notice is
submitted to the BLM to remove suspected common-variety minerals, as
defined in 43 CFR 3830.12, from a mining claim located on or after
July 23, 1955, the BLM must prepare a mineral examination report to
verify that the minerals are not common-variety before authorizing the
proposed operations or accepting the Notice.
1. Pending completion of a common-variety determination,
the BLM may provide interim authorization under 43 CFR
3809.101(b) to conduct operations in three circumstances:
a.

The BLM may approve a Plan of Operations or
allow notice-level operations that are limited to
taking samples necessary to confirm or corroborate
mineral exposures that are physically disclosed and
existing on the mining claim.

b.

The BLM may approve a Plan of Operations or
allow notice-level operations for the operator to
perform the minimum necessary annual assessment
work if required under 43 CFR Part 3836.

c.

The BLM may authorize the operator to remove
possible common-variety minerals if the operator
establishes an escrow account acceptable to the
BLM.

2. If the material is determined to be a common-variety mineral, not
subject to the Mining Law or the 43 CFR Subpart 3809 regulations,
the operator may either relinquish the mining claims or the BLM will
initiate contest proceedings.
C.

Split Estate Lands. In certain cases, the BLM’s surface management
regulations apply to operations authorized under the Mining Law on split
estate lands.

1. If the proposed operation is to be located on lands patented under the
Stock Raising Homestead Act (SRHA) and the operator has surfaceowner consent, the operator does not need to obtain BLM
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authorization under the surface management regulations. If there is
not an agreement with the surface owner, the operator must submit a
Plan of Operations to the BLM.
2. For split estate lands other than SRHA lands, the operator must file a
Plan of Operations or Notice for all proposed operations.
3. Where the mineral estate is private and the surface is managed by the
BLM, the 43 CFR Subpart 3809 regulations do not apply because the
non-Federal minerals are not subject to the Mining Law.
D.

2.8

Suction Dredging. The use of a suction dredge may be allowed or
authorized under the surface management regulations or may be
authorized under State regulations if the BLM and the State enter into an
agreement under 43 CFR 3809.200 through 3809.204.

Inspection.

The responsibilities for the inspection of operations are specifically addressed at 43 CFR
3809.600.
A.

B.

2.9

Frequency.
1.

At least four times each year, the BLM will inspect an
operation if the operator uses cyanide, or other leachates, or
where there is significant potential for acidic or deleterious
drainage.

2.

Active Plans that do not involve leachates will be inspected
at least two times per year.

3.

Active Notices will be inspected at least once each year.

Documentation. The findings and results of each inspection must be
documented, including any identified noncompliance documented in a
noncompliance order.

Enforcement.

The regulations at 43 CFR 3809.601 through 3809.604 address the BLM’s authority to
take enforcement actions when an operator engages in one of the prohibited acts under 43
CFR 3809.605, or otherwise does not meet the requirements of these regulations.

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2.10

A.

Types of Enforcement Orders. The BLM may issue three types of
enforcement orders: noncompliance orders, suspension orders, and
immediate temporary suspension orders.

B.

Preparation of Enforcement Orders. All enforcement orders must be in
writing, issued as formal decisions, and include the pertinent appeals
language.

C.

Duration of Order. Under 43 CFR 3809.601(b)(3), the BLM will issue a
decision terminating a suspension order when it is determined that the
operator has corrected the violation.

D.

Failure to Comply. The BLM may take a variety of actions where an
operator fails or refuses to comply with an enforcement order, including
one or more of the following: initiating a civil action against the operator
or claimant in Federal District Court, requiring the operator to submit a
Plan of Operations for existing and future operations that would otherwise
only require a Notice, or revoking the operator’s Plan of Operations or
nullifying the operator's Notice.

E.

Criminal Penalties. In circumstances described in 43 CFR 3809.700 and
43 CFR 3809.701, the BLM may seek criminal penalties for individuals
and organizations that knowingly and willfully violate 43 CFR Subpart
3809.

Administrative Review.

An operator or other adversely affected party may request administrative review of a
BLM decision. The adversely affected party may either request a State Director Review
(SDR) or appeal directly to the OHA.
A.

State Director Review. A request for SDR must be made in writing and
may include a request to meet with the State Director.
1. Within 21 days of receipt of the request, the State Director will notify
the party seeking a SDR as to whether the State Director will review
the original BLM decision.
2. If the adversely affected party files an appeal to OHA while the State
Director is reviewing the BLM’s decision, then the State Director
must stop the SDR and forward the original decision and case file to
OHA unless OHA agrees to defer consideration of the appeal at the
request of the State Director.

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3. The State Director may affirm the original decision, reverse the
decision completely, modify it, or remand the original decision back
to the office that issued the decision.
4. If requested, the State Director must determine whether or not the
State Director can accommodate a meeting request.
B.

OHA Appeals.
1. If the appellant files a Notice of Appeal, the BLM’s only
responsibility is to prepare the case file and transmit it along with the
Notice of Appeal to OHA. The BLM must wait for the appellant to
file its Statement of Reasons or for the time for filing a Statement of
Reasons to expire.
2. If the appellant files a Notice of Appeal and a Statement of Reasons,
the BLM must transmit the case file to OHA as well as file its answer
with OHA.
3. If the appellant files both a Notice of Appeal and request for stay, the
BLM must transmit the case file to OHA as well as any response to
the stay request within 10 days of service.

C.

2.11

Litigation in Federal Court. The BLM decisions under 43 CFR 3809 may
be challenged in Federal court. A party may seek judicial review of a
decision made by the OHA or during SDR in Federal court, or a party
may challenge the BLM decision in Federal court without going to OHA
or seeking SDR first.

Federal-State Agreements.

To prevent administrative delays and avoid duplication of effort, the BLM may enter into
agreements with a State agency or agencies. Such an agreement may provide for joint
management or defer certain surface management responsibilities to the State
administration. Such agreements are made under the authority of the appropriate State
Director.
2.12

Records Management.

The BLM is responsible for the creation and maintenance of a complete administrative
record that documents the BLM’s actions to prevent unnecessary or undue degradation of
the lands in accordance with the mandate of Section 302(b) of FLPMA, 43 U.S.C.
§1732(b), facilitate budget planning, assess units of accomplishment, respond to
information requests from the BLM Washington Office, identify unnecessary or undue
degradation, ensure that the approved Plan of Operations or accepted Notice is followed,
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support enforcement actions, and document the BLM decision-making process in the
event of administrative or judicial review.

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