To begin with, Pene believes BLM staffers overlooked man-made disturbances when they surveyed the area for wilderness potential in the early 1980s. Those disturbances disqualify the area for wilderness, he says. Agency officials say that although staffers found some "vehicular trails' and evidence of past mining, Westwater was classic wilderness with no "permanent improvements."
As for the bulldozed road, Pene maintains it's a county road that has always looked like it does now. But BLM planner Alex VanHemert says the agency has never recognized it as a county road. Pene illegally modified it from a jeep track to a graded dirt road, he says. The area has been officially closed to motorized vehicles since 1974, he adds, although the agency didn't post a sign until 1992.
Because his claims are inside a wilderness study area, Pene must follow special restrictions and an agency-approved mining plan, says VanHemert. Pene claims he has repeatedly filed the necessary mining permits but that the agency keeps requesting more paperwork. Pene did have an approved mining plan in 1986 for "casual use," but VanHemert says he needed to submit a full plan subject to an environmental assessment prior to bringing a bulldozer in. That's why he was cited in 1992.
Pene thinks the BLM is hard on him, but not on recreationists. He says boaters leave human feces and trash on his claims and that someone has repeatedly torn down his required mining notices.
"I'm trying to live by the law," says Pene. "I don't want to push the issue. All I want is to be left alone to mine my claim."