36 C.F.R. § 228.8

Requirements for environmental protection

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All operations shall be conducted so as, where feasible, to minimize adverse environmental impacts on National Forest surface resources, including the following requirements:

(a) Air Quality. Operator shall comply with applicable Federal and State air quality standards, including the requirements of the Clean Air Act, as amended (42 U.S.C. 1857 et seq.).

(b) Water Quality. Operator shall comply with applicable Federal and State water quality standards, including regulations issued pursuant to the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et seq.).

(c) Solid Wastes. Operator shall comply with applicable Federal and State standards for the disposal and treatment of solid wastes. All garbage, refuse, or waste, shall either be removed from National Forest lands or disposed of or treated so as to minimize, so far as is practicable, its impact on the environment and the forest surface resources. All tailings, dumpage, deleterious materials, or substances and other waste produced by operations shall be deployed, arranged, disposed of or treated so as to minimize adverse impact upon the environment and forest surface resources.

(d) Scenic Values. Operator shall, to the extent practicable, harmonize operations with scenic values through such measures as the design and location of operating facilities, including roads and other means of access, vegetative screening of operations, and construction of structures and improvements which blend with the landscape.

(e) Fisheries and Wildlife Habitat. In addition to compliance with water quality and solid waste disposal standards required by this section, operator shall take all practicable measures to maintain and protect fisheries and wildlife habitat which may be affected by the operations.

(f) Roads. Operator shall construct and maintain all roads so as to assure adequate drainage and to minimize or, where practicable, eliminate damage to soil, water, and other resource values. Unless otherwise approved by the authorized officer, roads no longer needed for operations:

(1) Shall be closed to normal vehicular traffic,

(2) Bridges and culverts shall be removed,

(3) Cross drains, dips, or water bars shall be constructed, and

(4) The road surface shall be shaped to as near a natural contour as practicable and be stabilized.

(g) Reclamation. Upon exhaustion of the mineral deposit or at the earliest practicable time during operations, or within 1 year of the conclusion of operations, unless a longer time is allowed by the authorized officer, operator shall, where practicable, reclaim the surface disturbed in operations by taking such measures as will prevent or control onsite and off-site damage to the environment and forest surface resources including:

(1) Control of erosion and landslides;

(2) Control of water runoff;

(3) Isolation, removal or control of toxic materials;

(4) Reshaping and revegetation of disturbed areas, where reasonably practicable; and

(5) Rehabilitation of fisheries and wildlife habitat.

(h) Certification or other approval issued by State agencies or other Federal agencies of compliance with laws and regulations relating to mining operations will be accepted as compliance with similar or parallel requirements of these regulations.

Notes of Decisions

Cited in 15 cases (2 in the last 5 years), 1985–2023 · leading case: California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987).

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California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987). · cites it 4× “The regulations explicitly require all operators within the national forests to comply with state air quality standards, 36 CFR § 228.8 (a) (1986), state water quality standards, § 228.”

Joshua Bohmker v. State of Oregon, 903 F.3d 1029 (9th Cir. 2018). · cites it 4× “See 36 C.F.R. § 228.8 (a)–(c). 4 In 1977, Congress adopted the Surface Mining Control and Reclamation Act of 1977, Pub.”

Rock Creek All. v. United States Forest Serv., 703 F. Supp. 2d 1152 (D. Mont. 2010). · cites it 6× “]” 36 C.F.R. § 228.8 . The mining operator’s plan of operations must describe how the operator intends to meet the regulatory requirements for environmental protection put forth in 36 C.”

Gulf Oil Corp. v. Wyoming Oil & Gas Conservation Comm'n, 693 P.2d 227 (Wyo. 1985). · cites it 2× “36 C.F.R. § 228.8 (h). The National Environmental Policy Act of 1969, supra, and the Environmental Quality Improvement Act of 1970, 42 *236 U.”

Pub. Lands for the People, Inc. v. United States Dep't of Agric., 733 F. Supp. 2d 1172 (E.D. Cal. 2010). · cites it 2× “36 C.F.R. § 228.8 (a)-(b). The regulations further impose a variety of other environmental standards, which typically require the operator to take such measures as are “practicable.”

Ctr. for Biological Diversity v. Usfws, 33 F.4th 1202 (9th Cir. 2022). “” 36 C.F.R. § 228.8 (c) (emphasis added). The majority repeatedly omits or deemphasizes the phrase “in connection with” in referencing that Part 228A applies only to “operations authorized by the United States mining laws.”

Park Lake Resources Ltd. Liab. Co. v. United States Dep't of Agric., 197 F.3d 448 (10th Cir. 1999). “5 (Forest Service may require changes in plan necessary to “meet the purpose of the regulations in this part”); 36 C.F.R. § 228.8 (mining operations on forest land must be conducted to minimize adverse environmental impacts); 36 C.”

Save Our Cabinets v. United States Dep't of Agric., 254 F. Supp. 3d 1241 (D. Mont. 2017). “” 36 C.F.R. § 228.8 . They further require that mining operators comply with applicable state and federal water quality standards including the Clean Water Act; take all practicable measures to maintain and protect fisheries and wildlife habitat; and construct and maintain all…”

Aloisi v. United States, 85 Fed. Cl. 84 (Fed. Cl. 2008). “The biological opinion did not, by itself, authorize plaintiffs to begin any mining operations.”

Siskiyou Reg'l Educ. Proj. v. Rose, 87 F. Supp. 2d 1074 (D. Or. 1999). “36 C.F.R. § 228.8 . Under certain conditions, a plan of operations is not required.”

Granite Rock Co., a Corp. v. California Coastal Comm'n, an Admin. Agency of the State of California, 768 F.2d 1077 (9th Cir. 1985). “See 36 C.F.R. § 228.8 (1984); see also 16 U.S.”

Ctr. for Biological Diversity v. United States Fish & Wildlife Serv., 450 F.3d 930 (9th Cir. 2006). “, 36 C.F.R. § 228.8 (a) (1986) (requiring compliance with state air quality standards in national forests).”

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