(a) Operations shall be conducted in accordance with an approved plan of operations, except as provided in paragraph (b) of this section and in § 228.4 (a), (b), and (e). A proposed plan of operation shall be submitted to the District Ranger, who shall promptly acknowledge receipt thereof to the operator. The authorized officer shall, within thirty (30) days of such receipt, analyze the proposal, considering the economics of the operation along with the other factors in determining the reasonableness of the requirements for surface resource protection, and;
(1) Notify the operator that he has approved the plan of operations; or
(2) Notify the operator that the proposed operations are such as not to require an operating plan; or
(3) Notify the operator of any changes in, or additions to, the plan of operations deemed necessary to meet the purpose of the regulations in this part; or
(4) Notify the operator that the plan is being reviewed, but that more time, not to exceed an additional sixty (60) days, is necessary to complete such review, setting forth the reasons why additional time is needed: Provided, however, That days during which the area of operations is inaccessible for inspection shall not be included when computing the sixty (60) day period; or
(5) Notify the operator that the plan cannot be approved until a final environmental statement has been prepared and filed with the Council on Environmental Quality as provided in § 228.4(f).
(b) Pending final approval of the plan of operations, the authorized officer will approve such operations as may be necessary for timely compliance with the requirements of Federal and State laws, so long as such operations are conducted so as to minimize environmental impacts as prescribed by the authorized officer in accordance with the standards contained in § 228.8.
(c) A supplemental plan or plans of operations provided for in § 228.4(d) and a modification of an approved operating plan as provided for in § 228.4(e) shall be subject to approval by the authorized officer in the same manner as the initial plan of operations: Provided, however, That a modification of an approved plan of operations under § 228.4(e) shall be subject to approval by the immediate superior of the authorized officer in cases where it has been determined that a modification is required.
(d) In the provisions for review of operating plans, the Forest Service will arrange for consultation with appropriate agencies of the Department of the Interior with respect to significant technical questions concerning the character of unique geologic conditions and special exploration and development systems, techniques, and equipment, and with respect to mineral values, mineral resources, and mineral reserves. Further, the operator may request the Forest Service to arrange for similar consultations with appropriate agencies of the U.S. Department of the Interior for a review of operating plans.
Notes of Decisions
Baker v. United States Dep't of Agric., 928 F. Supp. 1513 (D. Idaho 1996).
· cites it 7× “The Complaint seeks three things: (1) A declaratory judgment that the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) do not alter the time limits for approval of a mining Plan of Operations set by 36 C.F.R. § 228.5 (a); (2) An Order of Mandamus…”
Freeman v. United States, 875 F.3d 623 (Fed. Cir. 2017).
“deemed necessary,” 36 C.F.R. § 228.5 (a)(3), including the need to submit a bulk sampling proposal, construct a pilot-prototype plant, file a plan of operations with the BLM, and obtain water rights for the processing facility, J.”
United States v. Langley, 587 F. Supp. 1258 (E.D. Cal. 1984).
· cites it 3× “Under 36 CFR 228.5, the Forest Service, upon receipt of a proposed plan of operations, may “[n]otify the operator of any changes in, or additions to, the plan of operations deemed necessary to meet the purpose of the regulations in this part.”
Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994).
· cites it 3× “Plaintiffs further argue that the policy of refusing to approve motorized access while validity proceedings are pending runs contrary to the Forest Service’s own regulations codified at 36 C.F.R. § 228.5 (a). 14 Plaintiffs apparently construe the Forest Service refusal to…”
Ctr. for Biological Diversity v. Usfws, 33 F.4th 1202 (9th Cir. 2022).
“§ 551 ; see 36 C.F.R. § 228.5 (a). The USFS clarified its interpretation of the Mining Law in a statement accompanying its adoption of the Part 228A regulations: agency that adjudicates mining claims on both Bureau of Land Management-administered lands and on forest lands.”
Karuk Tribe v. United States Forest Serv., 640 F.3d 979 (9th Cir. 2011).
“36 C.F.R. § 228.5 (a). Preparation of a biological assessment and consultation would take considerably longer than the short time the Ranger has to review and acknowledge an NOI, strongly evidencing that the NOI process, unlike the process for submission and approval of a Plan,…”
Vane Minerals (Us), LLC v. United States, 116 Fed. Cl. 48 (Fed. Cl. 2014).
“See 36 C.F.R 228.5(a)(1)—(5) (listing the actions the Forest Service must take after receiving a proposed plan of operations).”
— 36 C.F.R. § 228.5(a)(1) — 1 case
Vane Minerals (Us), LLC v. United States, 116 Fed. Cl. 48 (Fed. Cl. 2014).
“See 36 C.F.R 228.5(a)(1)—(5) (listing the actions the Forest Service must take after receiving a proposed plan of operations).”
— 36 C.F.R. § 228.5(a)(3) — 1 case
United States v. Langley, 587 F. Supp. 1258 (E.D. Cal. 1984).
“Under 36 CFR 228.5, the Forest Service, upon receipt of a proposed plan of operations, may “[n]otify the operator of any changes in, or additions to, the plan of operations deemed necessary to meet the purpose of the regulations in this part.”
— 36 C.F.R. § 228.5(a)(5) — 1 case
United States v. Langley, 587 F. Supp. 1258 (E.D. Cal. 1984).
“Under 36 CFR 228.5, the Forest Service, upon receipt of a proposed plan of operations, may “[n]otify the operator of any changes in, or additions to, the plan of operations deemed necessary to meet the purpose of the regulations in this part.”
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