Chapter 5 EMERGING ISSUES IMPACTING THE REGULATION OF EXPLORATION AND MINING ACTIVITIES

• Jurisdiction: United States

Mining Law
Chapter 5

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EMERGING ISSUES IMPACTING THE REGULATION OF EXPLORATION AND MINING ACTIVITIES
Norman D. James Fennemore Craig, P.C. ¹ Phoenix, AZ

NORMAN D. JAMES is a Director at Fennemore Craig in Phoenix. He is a distinguished attorney in our natural resources, energy and environmental law group, where his work focuses on litigation in the federal courts, including appeals and dealing with federal agencies (Fish and Wildlife Service, Forest Service, Bureau of Land Management and Army Corps of Engineers) on rulemaking proposals, permitting and other administrative and regulatory matters. As a sought-after environmental lawyer, Norm's clients include mining companies, real estate developers and homebuilders, land resource users, ranchers, and their industry trade associations. His practice encompasses natural resources and environmental law, including federal laws and programs such as the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA), the Clean Water Act, the Mining Law of 1872, the National Forest Management Act, and the Federal Land Policy and Management Act.

While the Executive branch holds the power to issue executive orders, an agency cannot flip-flop regulations on the whims of each new administration. The APA requires reasoning, deliberation, and process. These requirements exist, in part, because markets and industries rely on stable regulations.²

I. INTRODUCTION: THE SHIFTING SANDS OF FEDERAL REGULATION

Virtually every hard-rock mining operation requires some type of federal permit or authorization. Many mining activities in the western states take place on federal land and involve the use of mining claims located under the Mining Law of 1872.³ The Mining Law declares that "all valuable mineral deposits in lands belonging to the United States," as well as "the lands in which they are found," are "free and open" to exploration, occupation and purchase.⁴ The Mining Law allows citizens to locate and patent lode and placer mining claims and to locate and patent non-mineral land for mill sites to support mining operations.⁵ This law created a system that is self-initiated; no federal permit or approval is needed to enter federal land and to locate and occupy a mining claim as long as the land is open to mineral entry and the correct procedures are followed.⁶

While the Mining Law declares federal land to be open for mineral exploration and development, the primary federal land managers, the Bureau of Land Management ("BLM") and the U.S. Forest Service ("Forest Service"), require miners to obtain authorization to use federal land for mining and mining processing when these activities will cause a significant disturbance

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of surface resources.⁷ These mining-related authorizations, called plans of operations ("MPOs"), are federal actions that trigger compliance with other federal environmental laws, including the National Environmental Policy Act ("NEPA"),⁸ the Endangered Species Act ("ESA"),⁹ and the National Historic Preservation Act ("NHPA").¹⁰ Further, the agencies' surface use regulations effectively incorporate environmental laws and regulations that protect water quality, air quality, wildlife, and other resources, by requiring the mine operator to demonstrate compliance with these requirements as a condition of the project's MPO.¹¹ These laws include, for example, the Clean Water Act ("CWA"),¹² the Clean Air Act,¹³ and the Resource Conservation and Recovery Act.¹⁴

These environmental laws and their implementing regulations are complicated and often pose significant technical and legal challenges to mine development and operation. As a result, regulatory requirements are frequently the subject of practice manuals, articles, and seminars, and they will not be addressed at length here. The paper instead discusses the uncertainty created by our shifting political landscape, which has created confusion about what regulatory requirements apply to permitting exploration and mining activities. This uncertainty makes it difficult for mining companies to plan and permit projects. It also makes it difficult for federal land managers to issue timely and defensible permits, leading to project delay, additional costs, and lawsuits by project opponents. Given the continuing demand for metals, including their use for infrastructure projects and in connection with new technologies to address climate change, these regulatory and policy shifts are inefficient and damaging to our nation's economy.

Of course, there have been shifts in regulatory policies from administration to administration in the past. In the mining area, for example, the Bush Administration reversed interpretations of the Mining Law made by the Clinton Administration that attempted to limit the rights of mining claim and mill site locators to utilize the surface of their claims for activities

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reasonably incident to mining and mineral processing.¹⁵ But it seems that in the past decade, regulatory policy shifts have become more frequent and more extreme.

The Trump Administration has been accused of reversing or modifying some 100 agency rules and policies pertaining to environmental regulation.¹⁶ While this claim certainly contains a fair amount of exaggeration, and ignores the fact that some of these changes were needed to address legitimate regulatory problems and overreaching by the prior administration, there is no doubt that the Trump Administration was responsible for a number of controversial regulatory changes, including the adoption of regulations that updated and streamlined the NEPA process,¹⁷ and revised the definition of the CWA term "waters of the United States" to reflect Supreme Court precedent regarding the proper scope of federal CWA jurisdiction.¹⁸

President Biden, upon taking office, announced his intention to review all of the Trump Administration's regulatory changes. On January 20, 2021, he signed Executive Order ("EO") 13990 directing federal agencies to review rules, policies, and guidance issued during the prior four years.¹⁹ The EO stated:

It is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.²⁰

The EO directed all federal agencies "to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last four years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis."²¹ Further, the EO directed federal

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agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions promulgated, issued, or adopted between January 20, 2017, and January 20, 2021.

One week later, President Biden issued EO 14008 requiring the federal government to take action to address climate change on a government-wide basis, including the formation of a White House Office of Domestic Climate Policy and, perhaps most famously, "pausing" new federal oil and gas leases on public lands and offshore waters.²² At the same time, the Biden Administration "paused" or, in a few cases, cancelled federal permits for individual projects that were in the process of being permitted by federal agencies.

In one highly publicized example, President Biden on January 20, 2021, revoked the 2019 Presidential Permit for the cross-border segment of the Keystone XL transnational oil pipeline, effectively ending the project.²³ Keystone XL was intended to transport crude oil from western Canada, and shale oil from North Dakota and Montana, to a hub in Nebraska for further delivery to Gulf Coast refineries.²⁴ The President explained that the pipeline "disserves the national interest" and that leaving the permit in place "would not be consistent" with the Administration's "economic and climate imperatives."²⁵ He also emphasized that "[t]he world must be put on a sustainable climate pathway to protect Americans and the domestic economy from harmful climate impacts, and to create well-paying union jobs as part of the climate solution."²⁶

An example in the mining context is the Resolution Copper Project, which the Biden Administration halted earlier this year. This project would develop and mine a major underground copper deposit near Superior, Arizona - an area with a long history of mining and mineral production.²⁷ This deposit, first discovered in 1995, is believed to be one of the largest undeveloped copper deposits in the world. After an extensive environmental review, on January 15, 2021, the Forest Service released a final Environmental Impact Statement ("EIS") and draft Record of Decision ("ROD") for the project, and initiated the pre-decisional objection process.²⁸ But on March 1, 2021, officials in the Department of Agriculture directed the Forest Service to withdraw its Notice of Availability and rescind the final EIS and draft ROD.²⁹ Because the EIS

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and draft ROD were rescinded, the Forest Service cannot complete a land exchange for the project, which was directed by Congress and conditioned on the issuance of the EIS.³⁰ The rationale given for rescinding the final EIS after years of effort, including public scoping, and comments on the draft EIS, and extensive consultation with Tribes, was the need to review "significant input from collaborators, partners, and the public since...