MSHA Announces Reinstatement of 2017 Obama-Era Rule on Workforce Examinations

On Monday, September 30, the Mine Safety and Health Administration (MSHA) reinstated an Obama-era rule imposing heightened requirements for health and safety workplace examinations in surface metal and nonmetal mines. The reinstatement represents yet another volley in an already protracted regulatory process spanning two presidential administrations and multiple lawsuits.

The 2017 Obama-era rule, marking one of the administration’s final acts, required that:

  1. workplace exams had to be completed before miners begin work in the area examined;
  2. operators had to notify miners in the affected areas of conditions that might adversely affect health and safety;
  3. operators had to promptly initiate action to correct those adverse conditions;
  4. the workplace exam records had to include specific information, including, among other things, a description of all conditions found that might adversely affect health or safety and a notation as to when the corrective actions were complete; and
  5. records of the workplace exams had to be made available to MSHA and miner representatives upon request.

The rule initially went into effect on October 2, 2017. Just three days later, however, MSHA withdrew the rule, delaying the effective date to June 2018.

Following the 2017 election, the Trump administration published a revised rule that featured two key changes. First, examinations could be carried out either before work starts or as work was getting underway. Second, exam records no longer had to document adverse conditions, so long as the conditions were promptly corrected.

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Rental Rate Increases Go into Effect for State of Alaska Mining Claims, Leasehold Locations, Prospecting Sites, and Mining Leases

New rental rates are now in effect for state mining claims, leasehold locations, prospecting sites, and mining leases in Alaska. The new rental rates became effective on August 30, 2019, and thus are applicable to the rental year that commenced on September 1, 2019.

These increases were made by the State of Alaska Department of Natural Resources (DNR) under Alaska Statute 38.05.211, which requires DNR to adjust the rental rates every 10 years based on the change in the Bureau of Labor Statistics Consumer Price Index (CPI) for Alaska. The last adjustment was completed in 2009.

The new rental rate schedule may be viewed here.

Rent for the rental year commencing on September 1, 2019, must be paid in accordance with the new rates at the DNR office in Anchorage or Fairbanks no later than Monday, December 2, 2019. The regular due date of November 30 falls on a Saturday, so under 11 AAC 88.130(d) the due date is extended “to the next day the office is open to the public.” Note that last year DNR unexpectedly closed its Anchorage office on November 30, and many state computer systems were offline on that date and for several days thereafter, due to the earthquake that struck at 8:29 a.m. that morning. To avoid such unforeseen circumstances affecting either your ability to pay or DNR’s ability to accept payment, we recommend that you make your payment well before the deadline.

Claimants who make a partial payment based on the old rates should receive notice and an opportunity to cure under 11 AAC 86.221(e).

BLM Increases Required Fees for Mining Claims, Sets September 3 Deadline for Annual Filings

The Bureau of Land Management (BLM) has increased location and maintenance fees for mining claims on federal lands. The new location fee is $40, and the new maintenance fee is $165 per lode mining claim or site and $165 for each 20 acres or portion thereof for placer mining claims. The due date for all annual filings is September 3, 2019 (due to September 1 falling on a Sunday and September 2 being a holiday).

The full text of BLM’s Federal Register notice of the fee increases may be viewed here. BLM indicates that it sent a postcard to all federal mining claim owners in July, alerting them to the same information. Many of these postcards were returned as undeliverable. If you did not receive a postcard, please contact your local BLM office to update your address.

Claimants who have already submitted maintenance fees and those who timely pay maintenance fees based on the previous rate, will be notified and given an opportunity to cure by submitting the additional fee within 30 days.

Those claimants who do not have a current address on file with BLM may lose their claim if they do not receive the notification and take advantage of the opportunity to cure.

We encourage you to relay the details regarding fee changes and the upcoming September 3 deadline to other claim owners.

National Park Service Regulations Do Not Apply to Inholdings in Alaska

Alaska is different—it has moose hunters on hovercrafts, many large national parks, and certain unique federal laws. Last week the U.S. Supreme Court unanimously held that National Park Service laws and regulations of general applicability do not apply to inholdings within Alaska’s national parks. Sturgeon v. Frost, 587 U.S. ___ (2019).

While on a moose hunting trip twelve years ago, John Sturgeon was repairing his hovercraft on a section of the Nation River within the Yukon-Charley Rivers National Preserve (a unit of the National Park System) when park rangers ordered him to stop using the hovercraft in the preserve. Mr. Sturgeon left that day without the benefit of his hovercraft and without a moose. He later sued, arguing that the Park Service ban on hovercrafts did not apply to the Nation River, a navigable river the bed of which is owned by the State of Alaska.

This case arose under the Alaska National Interest Lands Conservation Act of 1980 (ANILCA). When the federal government designated national park lands in ANILCA, it swept tracts of nonfederal lands (state, Alaska Native corporation, and private inholdings) within the park boundaries. ANILCA provides that no state, Native, or private inholdings “shall be subject to the regulations applicable solely to public lands within [conservation system] units.” 16 U.S.C. § 3103(c). Nonetheless, the federal government claimed that the Park Service could regulate the inholdings like park lands. Continue Reading

Earthquake Disrupts Mining Filings and Payments: What You Need to Know

The 2018 deadline to record affidavits of labor and pay rental on State of Alaska mining claims was disrupted by a 7.0 earthquake near Anchorage at 8:29 a.m. on Friday, November 30. As a result of the earthquake, the Department of Natural Resources’ Anchorage office and the State of Alaska Recorder’s Office closed, preventing the payment of rent and the recording of affidavits on the apparent last day to do so.

However, under existing DNR regulations, when the filing office is officially closed on the last day to make a filing or payment, the time for filing or paying is extended to the next day the office is open to the public:

When the last day of the time for filing or payment falls on a day the designated filing office is officially closed, the time for filing is extended to the next day the office is open to the public.
11 AAC 88.130.

State offices in Anchorage and Palmer are also closed today, December 3, 2018, and a phone call to the Juneau Recorder’s Office revealed that the servers are offline so no recording district can record documents today. This means that affidavits of labor that are recorded on Tuesday, December 4, 2018, should be considered timely. Similarly, payment of claim rentals should be considered timely if paid on Tuesday, December 4, 2018.

We are working with the Division of Mining, Land, and Water within DNR to have a formal statement issued acknowledging the effect of 11 AAC 88.130 extending the deadline for recording a 2018 affidavit of labor and paying rent.

We are aware that some claim holders submitted affidavits of labor for recording electronically and are awaiting acceptance and confirmation of those attempts to record. If you have not received confirmation from your recording district that your affidavit was accepted for recording by midday of the extended deadline, we suggest that you e-record the affidavit again.

How Will Alaska Pay its Rebatable Production Tax Credits?

Alaska’s rebatable production tax credit program was created by state legislators to be an incentive for explorers and small producers to invest in oil and gas exploration and production in the state but was hurt by its own success when oil prices dropped. The legislature repealed the program but a queue of valid outstanding credits still awaits payment.

My latest article for State Tax Notes:

  • Provides an overview of the rebatable production tax credits, which were crafted specifically to encourage exploration and development by explorers, small producers and new entrants to the state.
  • Outlines the status of funding to pay down the tax credit queue and notes that the explorers and small producers the tax credit was meant to lure have been the ones hardest hit by the lack of a significant appropriation to the oil and gas tax credit fund over the last two years for purchase of the outstanding balance of credit certificates.
  • Discusses H.B. 331, introduced in February 2018 by Alaska Gov. Bill Walker, which would establish the Alaska Tax Credit Bond Corp. in the Department of Revenue and authorize it to issue up to $1 billion in bonds to finance purchases of the oil and gas tax credits.

Check back soon for a detailed look at H.B. 331 and an update about the challenges the bill is facing as to its constitutionality.

Read the article here.

Originally published as “The Battle Over Payment for Alaska’s Tax Credits” on September 10, 2018, by State Tax Notes.

Links to my earlier columns can be found here and here.

The Battle Over the Alaska Oil and Gas Production Tax Credit

Alaska’s oil and gas production tax has been subject to continuing debate and change as lawmakers and policymakers struggle with balancing budgets in times of volatile oil prices while also encouraging the investment necessary to monetize the state’s resources to run its government, create jobs, build and maintain infrastructure, and promote economic activity. In my second article as a columnist for State Tax Notes, I provide:

  • A review of the oil and gas production tax and how it has evolved into several different structures in response to the locations of resources, population centers and developed infrastructure within the state.
  • An overview of how tax credits have evolved since 2005 — when the primary credit was meant to encourage exploration for oil and gas — as the Alaska Legislature revised the production tax and enacted new credits over the years designed to spur exploration and development activity, attract new entrants to the state, and increase production in existing fields.
  • A look at how — even as the production tax credit structure has proved to be an effective incentive for oil and gas exploration, development and production — lawmakers and policymakers, faced with low oil prices, rising budget deficits and the price tag that came with rebatable tax credits, have targeted some of the credits for reduction or elimination.

Read the article here.

Originally published as “Alaska’s Tax Credit Showdown” on April 2, 2018, by State Tax Notes.

A link to my first column can be found here.

Trump’s BLM Cannot Delay Implementation of Oil and Gas Methane Rules after Effective Date

On October 4, 2017, the United States District Court for the Northern District of California held that the Bureau of Land Management (“BLM”) cannot postpone implementation of natural gas methane emission rules because such action would violate the Administrative Procedure Act (“APA”).  Plaintiffs – the State of California, the State of New Mexico, and a coalition of seventeen conservation and tribal citizens groups (jointly “Plaintiffs”) – initiated the lawsuit in two separate actions.  Plaintiffs argued that postponing implementation of the BLM’s Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule (“Final Rule”) after its effective date violated Section 705 of the APA.

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Sage-Grouse: Short Flight for Pending 10 Million-Acre Withdrawal from General Mining Law?

Secretary of the Interior Zinke has directed that the Bureau of Land Management immediately begin implementing the recommendations in his Sage-Grouse Review Team’s report, which was was released today, concerning the 2015 greater sage-grouse amendments to federal land use management plans. (Prior post on Sage-Grouse Review Team here.) Among other things, such as coordinating federal mitigation policy with state mitigation approaches, the Trump Administration will now be moving to “[r]emove all [sagebrush focal areas (SFAs)] and the management actions tied to SFAs.” This would include the pending withdrawal for up to 20 years of over 10 million acres of SFAs on public lands in six western states from mineral location and entry under the General Mining Law .  (Prior posts on withdrawal here and here.) The report also recognizes a short-term “[n]eed to clarify under what circumstances or how the [land use management] plans recognize valid existing rights.” Because valid existing rights (i.e., a mining claim within which a valuable mineral deposit has been discovered) are relevant if a withdrawal is approved, this recommended clarification indicates that the Trump Administration may well withdraw the SFAs for a short time while it moves forward with amending the plans to remove the SFAs altogether. Continue Reading

U.S. Court of Appeals Upholds MSHA’s Right to Obtain Personnel Records from Mine Operators

On July 18, in Hopkins County Coal, LLC v. Perez, the U.S. Court of Appeals for the Sixth Circuit issued an opinion upholding two citations and an order issued to a mine operator, Hopkins County Coal, for its refusal to turn over certain personnel records requested by the Mine Safety and Health Administration (MSHA) during a § 105(c) discrimination complaint investigation. The mine operator challenged the request for the records on several grounds, arguing that the Secretary of Labor overstepped his authority because the records were not among those that the Mine Act requires operators to keep and also that neither the miner nor MSHA had ever told the mine operator what the factual basis was for the miner’s discrimination case. Continue Reading