36 C.F.R. § 228.4

Plan of operations—notice of intent—requirements

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(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.

(1) A notice of intent to operate is not required for:

(i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes;

(ii) Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools;

(iii) Marking and monumenting a mining claim;

(iv) Underground operations which will not cause significant surface resource disturbance;

(v) Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caused by other users of the National Forest System who are not required to obtain a Forest Service special use authorization, contract, or other written authorization;

(vi) Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources; or

(vii) Operations for which a proposed plan of operations is submitted for approval;

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.

(3) An operator shall submit a proposed plan of operations to the District Ranger having jurisdiction over the area in which operations will be conducted in lieu of a notice of intent to operate if the proposed operations will likely cause a significant disturbance of surface resources. An operator also shall submit a proposed plan of operations, or a proposed supplemental plan of operations consistent with § 228.4(d), to the District Ranger having jurisdiction over the area in which operations are being conducted if those operations are causing a significant disturbance of surface resources but are not covered by a current approved plan of operations. The requirement to submit a plan of operations shall not apply to the operations listed in paragraphs (a)(1)(i) through (v). The requirement to submit a plan of operations also shall not apply to operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise will likely cause a significant disturbance of surface resources.

(4) If the District Ranger determines that any operation is causing or will likely cause significant disturbance of surface resources, the District Ranger shall notify the operator that the operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved.

(b) Any person conducting operations on the effective date of these regulations, who would have been required to submit a plan of operations under § 228.4(a), may continue operations but shall within 120 days thereafter submit a plan of operations to the District Ranger having jurisdiction over the area within which operations are being conducted: Provided, however, That upon a showing of good cause the authorized officer will grant an extension of time for submission of a plan of operations, not to exceed an additional 6 months. Operations may continue according to the submitted plan during its review, unless the authorized officer determines that the operations are unnecessarily or unreasonably causing irreparable damage to surface resources and advises the operator of those measures needed to avoid such damage. Upon approval of a plan of operations, operations shall be conducted in accordance with the approved plan. The requirement to submit a plan of operations shall not apply: (1) To operations excepted in § 228.4(a) or (2) to operations concluded prior to the effective date of the regulations in this part.

(1) The name and legal mailing address of the operators (and claimants if they are not the operators) and their lessees, assigns, or designees.

(2) A map or sketch showing information sufficient to locate the proposed area of operations on the ground, existing and/or proposed roads or access routes to be used in connection with the operations as set forth in § 228.12 and the approximate location and size of areas where surface resources will be disturbed.

(3) Information sufficient to describe or identify the type of operations proposed and how they would be conducted, the type and standard of existing and proposed roads or access routes, the means of transportation used or to be used as set forth in § 228.12, the period during which the proposed activity will take place, and measures to be taken to meet the requirements for environmental protection in § 228.8.

(d) The plan of operations shall cover the requirements set forth in paragraph (c) of this section, as foreseen for the entire operation for the full estimated period of activity: Provided, however, That if the development of a plan for an entire operation is not possible at the time of preparation of a plan, the operator shall file an initial plan setting forth his proposed operation to the degree reasonably foreseeable at that time, and shall thereafter file a supplemental plan or plans whenever it is proposed to undertake any significant surface disturbance not covered by the initial plan.

(e) At any time during operations under an approved plan of operations, the authorized officer may ask the operator to furnish a proposed modification of the plan detailing the means of minimizing unforeseen significant disturbance of surface resources. If the operator does not furnish a proposed modification within a time deemed reasonable by the authorized officer, the authorized officer may recommend to his immediate superior that the operator be required to submit a proposed modification of the plan. The recommendation of the authorized officer shall be accompanied by a statement setting forth in detail the supporting facts and reasons for his recommendations. In acting upon such recommendation, the immediate superior of the authorized officer shall determine:

(1) Whether all reasonable measures were taken by the authorized officer to predict the environmental impacts of the proposed operations prior to approving the operating plan,

(2) Whether the disturbance is or probably will become of such significance as to require modification of the operating plan in order to meet the requirements for environmental protection specified in § 228.8 and

(3) Whether the disturbance can be minimized using reasonable means. Lacking such determination that unforeseen significant disturbance of surface resources is occurring or probable and that the disturbance can be minimized using reasonable means, no operator shall be required to submit a proposed modification of an approved plan of operations. Operations may continue in accordance with the approved plan until a modified plan is approved, unless the immediate superior of the authorized officer determines that the operations are unnecessarily or unreasonably causing irreparable injury, loss or damage to surface resources and advises the operator of those measures needed to avoid such damage.

(f) Upon completion of an environmental analysis in connection with each proposed operating plan, the authorized officer will determine whether an environmental statement is required. Not every plan of operations, supplemental plan or modification will involve the preparation of an environmental statement. Environmental impacts will vary substantially depending on whether the nature of operations is prospecting, exploration, development, or processing, and on the scope of operations (such as size of operations, construction required, length of operations and equipment required), resulting in varying degrees of disturbance to vegetative resources, soil, water, air, or wildlife. The Forest Service will prepare any environmental statements that may be required.

(g) The information required to be included in a notice of intent or a plan of operations, or supplement or modification thereto, has been assigned Office of Management and Budget Control #0596-0022. The public reporting burden for this collection of information is estimated to vary from a few minutes for an activity involving little or no surface disturbance to several months for activities involving heavy capital investments and significant surface disturbance, with an average of 2 hours per individual response. This includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Chief (2800), Forest Service, USDA, P.O. Box 96090, Washington, DC 20090-6090 and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.

[39 FR 31317, Aug. 28, 1974. Redesignated at 46 FR 36142, July 14, 1981, and amended at 54 FR 6893, Feb. 15, 1989; 69 FR 41430, July 9, 2004; 70 FR 32731, June 6, 2005]

Notes of Decisions

Cited in 49 cases (3 in the last 5 years), 1984–2024 · leading case: Karuk Tribe v. United States Forest Serv., 681 F.3d 1006 (9th Cir. 2012).

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Karuk Tribe v. United States Forest Serv., 681 F.3d 1006 (9th Cir. 2012). · cites it 29× “36 C.F.R. §§ 228.4 (a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon.”

Siskiyou Reg'l Educ. Proj. v. United States Forest Serv., 565 F.3d 545 (9th Cir. 2009). · cites it 7× “Although 36 C.F.R. § 228.4 (a) (2002), a Forest Service mining regulation, was in force when MM-1 was adopted, MM-1 and § 228.”

Karuk Tribe v. United States Forest Serv., 640 F.3d 979 (9th Cir. 2011). · cites it 17× “Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. § 228.4 (a) (2004). 2 The suction dredge mining activity conducted by the individual gold miners…”

Siskiyou Reg'l Educ. Proj. v. Rose, 87 F. Supp. 2d 1074 (D. Or. 1999). · cites it 19× “’ ” (AR at 200 citing 36 C.F.R. § 228.4 ). “If a POO is submitted, the Forest Service conducts an Environmental Analysis resulting in an Environmental Assessment (EA) or Environmental Impact Statement (EIS).”

Pub. Lands for the People, Inc. v. United States Dep't of Agric., 733 F. Supp. 2d 1172 (E.D. Cal. 2010). · cites it 9× “The Forest Service contends that miners must secure such authorization by filing a Notice of Intent or Plan of Operations under 36 C.F.R. § 228.4 . The EIS itself explained that “[i]n the event that ground disturbing activities or the use of public lands are such to warrant the…”

United States v. Ray Shumway Molly Shumway, 199 F.3d 1093 (9th Cir. 1999). · cites it 4× “3 See 36 C.F.R. 228.4 (1998). 4 Smelting Co. v.”

Freeman v. United States, 875 F.3d 623 (Fed. Cir. 2017). · cites it 3× “36 C.F.R. § 228.4 (a); see 30 U.S.C. § 612 (b) (2012) (subjecting mining claims to certain restrictions); see also United States v.”

United States v. Godfrey, 112 F. Supp. 3d 1097 (E.D. Cal. 2015). · cites it 13× “As relevant in this case, the Ninth Circuit has held that the Forest Service may require prospective miners to submit either a notice of intent or a plan of operations for approval under 36 C.F.R. § 228.4 , provided that these requirements apply only to operations “which might…”

Pub. Lands for the People, Inc. v. United States Dep't of Agric., 697 F.3d 1192 (9th Cir. 2012). · cites it 5× “The Miners claim that the Forest Service is without authority to restrict their motor vehicle use and that the Forest Service “acted arbitrarily and capriciously by requiring that entry onto roads and rights of way previously open, and now closed due to the [2008 Decision],…”

Karuk Tribe of California v. United States Forest Serv., 379 F. Supp. 2d 1071 (N.D. Cal. 2005). · cites it 6× “The Forest Service thus concluded that, to be consistent with 36 C.F.R. § 228.4 (a), PoOs would only be required in RRs where proposed mining would likely cause significant surface resource disturbances.”

United States v. Backlund, 689 F.3d 986 (9th Cir. 2012). · cites it 3× “5 See 36 C.F.R. § 228.4 (a)(4). 6 Mining operations that are not likely to cause significant surface disturbance do not require an approved operating plan.”

United States v. Langley, 587 F. Supp. 1258 (E.D. Cal. 1984). · cites it 5× “During the pendency of the stay, the Forest Service repeatedly notified Gamble that his residence and operations were causing a significant disturbance of surface resources, and that pursuant to 36 CFR 228.4 he was required to submit a Plan of Operations to the District Ranger.”

Show all 49 citing cases →

— 36 C.F.R. § 228.4(a) — 4 cases

Karuk Tribe v. United States Forest Serv., 681 F.3d 1006 (9th Cir. 2012). “36 C.F.R. §§ 228.4 (a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon.”

Siskiyou Reg'l Educ. Proj. v. Rose, 87 F. Supp. 2d 1074 (D. Or. 1999). “’ ” (AR at 200 citing 36 C.F.R. § 228.4 ). “If a POO is submitted, the Forest Service conducts an Environmental Analysis resulting in an Environmental Assessment (EA) or Environmental Impact Statement (EIS).”

Graves v. Bernhardt (D. Ariz. 2019).

Karuk Tribe of California v. Us Forest Serv., 658 F.3d 953 (9th Cir. 2011).

— 36 C.F.R. § 228.4(a)(1) — 1 case

— 36 C.F.R. § 228.4(a)(1)(vi) — 1 case

United States v. Godfrey, 112 F. Supp. 3d 1097 (E.D. Cal. 2015). “As relevant in this case, the Ninth Circuit has held that the Forest Service may require prospective miners to submit either a notice of intent or a plan of operations for approval under 36 C.F.R. § 228.4 , provided that these requirements apply only to operations “which might…”

— 36 C.F.R. § 228.4(a)(2) — 3 cases

Siskiyou Reg'l Educ. Proj. v. United States Forest Serv., 565 F.3d 545 (9th Cir. 2009). “Although 36 C.F.R. § 228.4 (a) (2002), a Forest Service mining regulation, was in force when MM-1 was adopted, MM-1 and § 228.”

United States v. Lex, 300 F. Supp. 2d 951 (E.D. Cal. 2003).

Siskiyou Reg'l v. Usfs (9th Cir. 2009).

— 36 C.F.R. § 228.4(c)(3) — 1 case

United States v. Langley, 587 F. Supp. 1258 (E.D. Cal. 1984). “During the pendency of the stay, the Forest Service repeatedly notified Gamble that his residence and operations were causing a significant disturbance of surface resources, and that pursuant to 36 CFR 228.4 he was required to submit a Plan of Operations to the District Ranger.”

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