CHAPTER 14 AVENUES TO AFFECT PROPOSED MINERAL DEVELOPMENT: AN `ENVIRONMENTALIST'S' PERSPECTIVE
| Jurisdiction | United States |
(Nov 1979)
AVENUES TO AFFECT PROPOSED MINERAL DEVELOPMENT: AN `ENVIRONMENTALIST'S' PERSPECTIVE
National Wildlife Federation
Boulder, Colorado
Introduction
An important function of the country's largest private conservation organization, the National Wildlife Federation, is to provide legal representation to otherwise unrepresented groups and citizens concerned about national resource protection in different areas of the country. To accomplish this, natural resource law clinics have been set up at several law schools across the country, which—among other things—help train law students in natural resource law and litigation.
A recently-established NWF Clinic located in Boulder has been concerned with a wide variety of issues, including Colorado front range air pollution, timber management and road construction in National Forests in Wyoming and South Dakota, water resource projects in Colorado, Wyoming and Utah, mining issues in Colorado, Wyoming, South Dakota, Arizona and New Mexico, and fish and wildlife protection throughout the Rocky Mountain region. Operating with a staff of two lawyers, and a group of law students, the Colorado Clinic has been spread thin. Nonetheless, it has been involved in, or on the edge of, several mining controversies in the past 13 months. In the process, we have acquired some insights into, and a working knowledge of, the interplay between "public rights" accorded under federal and state environmental statutes, and "private rights" arising out of federal mining law.
In the spirit of candor and full disclosure—and at some risk of betraying trade secrets and the lawyer-client relationship— this paper is intended to provide a view of the sorts of legal issues the Clinic, and the environmental community in general, has been confronting in the mineral development arena, and the legal strategies it has relied on in responding to requests for assistance from citizen groups in this region concerned that mineral development in their area may somehow threaten the groundwater supply, the integrity of surface waters, their land, airshed, way of life, whatever.
A. Hardrock Mining
There are two kinds of issues we've been seeing. First, people in western South Dakota, the Powder River Basin in Wyoming, the western slope of Colorado, and in Utah have expressed concern about what they perceive as proliferating regional mineral exploration and development on public lands in and around their home base. They want to know what, if anything, can be done to make sure the
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new wave of mining takes place in a responsible way—with due regard for health, safety, and environmental concerns. A lot of this regional development is uranium-related.
Secondly, we have been asked to look at some large-scale, site-specific mineral development—a proposed molybdenum mine in western Colorado, a uranium mine in the Gunnison National Forest in Colorado, and certain uranium operations just beginning in the Black Hills of South Dakota and Utah.
1. Regional Mineral Development on Public Lands
The concern is that wide-spread, unchecked exploration and development for uranium, together with other hardrock minerals, on public land in somewhat discrete eco-systems (e.g., the Black Hills) present the real possibility of sudden industrialization of areas that heretofore had featured some of the more valuable recreational, wildlife, watershed and aesthetic resources in the country. What many would like to see is (a) some intelligent front-end regional planning to determine the carrying capacity of the region (the ability of the land, water and air resources in a given region to tolerate intensive mineral development), and the relative values of the different resources (minerals, timber, pasture land, recreation and wildlife, watershed) in that region, and (b) ultimately, a well-considered decision on where, when, and how to mine before a region is programmed for intensive new development.
Since much of the hard-rock mineral resource is located on, and/or must be reached via access over, public lands it would seem that requirements in the 1976 Federal Land Policy and Management Act1 and the National Forest Management Act2 (both of which call for multiple land use planning, with due regard for all resource values), when coupled with the National Environmental Policy Act, might mandate that kind of approach.3
On the other hand, it is contended by mining advocates that the unqualified right to enter the public land under the 1872 General Mining Law, and discover and develop hard-rock mining claims, overrides the concerns and direction found in the 1976 land management statutes and in NEPA.
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One thing seems clear, and that is that the principal land management agencies (the Forest Service and BLM) do not aggressively attempt to factor mineral development considerations into their new planning regulations.4 Thus, it's still every man for himself. The conflict between proper public land management (with, inter alia, due regard for natural resource protection) and supposedly-unfettered rights under the 1872 Mining Act is largely ignored in these new planning regulations.
Conservation groups attempting to somehow compel appropriate multiple use allocations prior to new hardrock development are up against it. Claims for a regional EIS, and a moratorium on federal action facilitating new hardrock mineral development— new prospecting permits, mining plan approvals, issuance of patents, access rights, water discharge permits, "source material" licenses, prevention of significant (air) deterioration permits, or whatever—until an EIS is completed and some overall planning decisions made on how our public resources can best be utilized seem, at least today, to meet with great resistance.5
This, it seems to me, is unfortunate since, to those concerned about often-conflicting, non-mineral values on our national lands, the only avenue of resource protection is the withdrawal of the land from entry and development.
Withdrawal, under Section 204 of FLPMA, is a cumbersome mechanism not lending itself to careful-balancing or fine-tuning—a draconian approach which may completely bar mineral development where only partial constraint is called for.6 Nonetheless, the conservationists have been unable to prevail on the land agencies to put a temporary hold on new hardrock mineral exploration and development pending solid multiple-use planning in which all competing values are fairly weighed. The agencies and the industry—perhaps rightly—insist that the Mining Law of 1872 offers no room for such an approach. The only answer, then, is to withdraw large chunks of land from exploration and development—and, as
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noted, that's an approach that neither conservationists nor industry necessarily warms to.7
2. Site-Specific Mineral Development
Hypothetical: Acme Mining Co, has made a discovery of copper and staked its claim in the Bandido National Forest, Arizona, with some overlap on adjacent public domain (BLM) land, in an area with a fragile watershed, important migration routes for a large elk herd, widely-recognized trout fishery values, an important groundwater (aquifer) supply for a nearby town, and not far from a wilderness area designated as a Class I (for prevention-of-significant deterioration purposes) air quality area. Acme has:
(a) Submitted to the Forest Service a plan of operations which the Forest Service has tentatively approved, with minor conditions; and
(b) Has applied to BLM for (1) mining patents for five claims of 20 acres each, and millsite patents for 200 acres, (2) rights-of-way for haulage roads and power lines, and (3) a land exchange, involving another 200 acres of public domain to be used for a second tailings pond not far from the minesite.
That hypothetical captures some of the issues the Clinic has been examining in a site-specific context. Let me, briefly, identify those issues, and share some thoughts on how we approach them.
a. Approval of Plan of Operations
The Forest Service regulations, 36 C.F.R. Part 252, purport to require environmental assessments and, in appropriate cases, environmental impact statements in approving plans of operation where there is a possibility of significant resource disturbance.8
Nowhere in those regulations does the Forest Service suggest that it has the right to deny approval, in case the mine
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plan threatens unacceptably adverse environmental harm.
We think the Forest Service has that right of disapproval.
If the mine plan portends significant environmental impact (e.g., via surface disturbance, or hydrologic impact) an EIS should be written. The impact statement should, among other things, determine what protective measures need be taken in order to protect (reclaim) the land, insure the integrity of the appurtenant ground and surface water systems, and immunize the airshed from significant air pollution (e.g., radon gas emitted from mine walls). The cost of protecting the public land resource should be determined, and a calculus then made (after fixing those costs, and deducting them from projected revenue) as to whether there in fact exists a "valuable deposit" of mineral.
In short, the impact statement should serve as a vehicle for making the determination (by the Forest Service, in concert with BLM) as to whether the mining operator has a right to mine, and if so, under what terms and conditions. Thus, in an open pit mine in the National Forest, if reclamation (e.g., backfilling and/or revegetating the pit) could not be achieved economically, then the mining company might not have a claim to a "valuable deposit."
That approach has yet to be adopted by the land agencies, although a couple of federal courts— in NRDC v. Berklund9 (in a preference right lease context), and in South Dakota v. Andrus,10 in...
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