What’s been called the “the most significant federal court decision on federal mining law in several decades,”[i] could have broad implications for federal mining law and the future of the domestic mining industry. In May 2022, the Ninth Circuit affirmed District Court Judge James Soto’s order temporarily blocking the proposed Rosemont Copper mine in the Santa Rita mountains of southern Arizona.[ii] As the world economy transitions away from fossil fuels and adopts electric vehicles and other clean technologies, the demand for cobalt, lithium, nickel, and other minerals is soaring.[iii] The development and manufacture of renewable energy technologies, the United States’ lengthy permitting process, which averages seven to ten years,[iv] and the Inflation Reduction Act’s (IRA) tax incentives for domestically sourced minerals[v] create a unique environment in which both sides of the political aisle have an appetite for mining law and permitting reform.
A. The Mining Act of 1872 & The Rosemont Mine Decision
The General Mining Act of 1872[vi] (the Act) opened federal lands to mineral exploration and royalty-free extraction by U.S. citizens and corporations. Congress has significantly narrowed the Act’s scope over the years, but it still governs mining in the western states and provides government with virtually no role in locating new claims.[vii] The 150-year-old law was signed by President Ulysses S. Grant at a time when hardrock mining was performed with shovels and pickaxes and has been criticized as painfully out of date.[viii] The Biden administration cites the lack of any environmental, reclamation, or financial assurance provisions as further impetus to reform the Act.[ix]
In the Rosemont case, Rosemont Copper Company had a valid mining claim (under the Act) for the land where it proposed to locate the mine. However, in its mining plan of operations (MPO) Rosemont proposed to dump nearly two billion tons of waste rock on adjacent National Forest land. Tribes and environmental groups sued, challenging the MPO under multiple environmental and procedural statutes, including the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). The United States Forest Service (USFS) argued that they had approved the MPO because (1) the dumping of waste rock was a use reasonably incident to Rosemont’s mining operations and (2) USFS assumed Rosemont had valid mining claims on the National Forest land where it proposed to dump the waste. The District Court found, and the Ninth Circuit affirmed, that there was no basis for the USFS’s assumption that Rosemont’s mining claims on the National Forest land were valid, and therefore Rosemont had no right to dump their waste on that land.
B. Implications of the Rosemont Decision
The decision has been celebrated by environmentalists and the Tribes whose sacred sites would have been buried under a mountain of mining waste, and decried by the mining industry as an unreasonable, judicially-imposed burden that will prevent investment in domestic mining. Some environmental law professors note that Judge Soto’s ruling is fundamentally sound, while some mining industry lawyers argue the Judge usurped agency discretion to decide whether to challenge the validity of a mining claim. According to law professor and former Interior Department Solicitor John Leshy, the decision will make opening new large-scale mines on United States public lands even more difficult and force the mining industry to lobby Congress for reform.[x]
C. An Environment Favorable to Reform
A recent attempt at environmental permitting reform, led by Senator Joe Manchin, aimed to streamline the approval process for both fossil fuel and renewable energy projects. The proposal, which failed just months after Congress passed the IRA, would have shortened the timeline for NEPA review, limited citizens’ ability to sue to challenge proposed energy projects, and approved the Mountain Valley pipeline running from northwestern West Virginia to southern Virginia.[xi] Despite the proposal’s initial failure, Manchin and others are still working to reach a deal on the reforms by the end of 2022.[xii]
From the mining industry’s perspective, the lengthy permitting process and the implications of the Rosemont mine decision hamper investment and development of important domestic mineral resources. At the same time, the IRA is set to increase production incentives and demand for domestically sourced minerals, boosting industry optimism. The National Mining Association, the industry’s largest trade organization, acknowledges that the environment, human rights, and free, prior, and informed consent of Indigenous peoples should be considered when conducting large-scale mining.[xiii] This combination of circumstances indicates an atmosphere where the mining industry may be amenable to whole-scale reform of the 1872 Act.
Looking to the federal government’s perspective, the Biden administration realizes that mining law reform is necessary and recently convened a stakeholder meeting consisting of representatives of States, Tribes, the mining industry, environmental groups, and legal experts. Citing a need for responsible and sustainable development of domestic hardrock minerals, the administration’s goals in reforming the 1872 Mining Law are to “ensure new production meets strong environmental standards throughout the lifecycle of the project, ensure meaningful community consultation and consultation with Tribal nations, and reduce the time, cost, and risk of mine permitting.”[xiv]
In sum, the Rosemont mine decision is likely a wake-up call to the mining industry that reform is needed. The mining industry, the federal government, and other stakeholders should work together to reform the 1872 Mining Law and find 21st century solutions to 21st century problems. Ideally, a new path forward for federal mining law will prioritize environmental and Indigenous human rights concerns, while promoting efficiency in the regulatory and permitting processes and supporting the domestic production of minerals needed for the transition to a clean energy economy.
[i] Tony Davis, ‘Shocking,’ ‘blockbuster’ Rosemont Mine ruling has national implications, experts say, Arizona Daily Star (Aug. 6, 2019), https://tucson.com/news/local/shocking-blockbuster-rosemont-mine-ruling-has-national-implications-experts-say/article_55dd98cc-128b-5105-9590-186f8c2c1e8f.html.
[ii] Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 33 F.4th 1202 (9th Cir. 2022).
[iii] Emma Dumain, Inside the environmental justice movement’s big win, E&E News (Oct. 11, 2022, 6:24 AM), https://www.eenews.net/articles/inside-the-environmental-justice-movements-big-win/.
[iv] U.S. Minerals mining permitting process, Mining Digit. (May 17, 2020), https://miningdigital.com/smart-mining/infographic-us-minerals-mining-permitting-process.
[v] Jael Holzman, Mining companies strike gold with new climate law, E&E News (Aug. 18, 2022, 1:10 PM), https://www.eenews.net/articles/mining-companies-strike-gold-with-new-climate-law/.
[vi] 30 U.S.C. §§ 22–54
[vii] Mark Squillace, The Enduring Vitality of the General Mining Law of 1872, 18 Envtl. L. Rep. 10261 (1988).
[viii] Tony Davis, ‘Shocking,’ ‘blockbuster’ Rosemont Mine ruling has national implications, experts say, Arizona Daily Star (Aug. 6, 2019), https://tucson.com/news/local/shocking-blockbuster-rosemont-mine-ruling-has-national-implications-experts-say/article_55dd98cc-128b-5105-9590-186f8c2c1e8f.html.
[ix] Readout of the White House’s First Stakeholder Convening on Mining Reform, The White House (May 11, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/05/11/readout-of-the-white-houses-first-stakeholder-convening-on-mining-reform/.
[x] Tony Davis, ‘Shocking,’ ‘blockbuster’ Rosemont Mine ruling has national implications, experts say, Arizona Daily Star (Aug. 6, 2019), https://tucson.com/news/local/shocking-blockbuster-rosemont-mine-ruling-has-national-implications-experts-say/article_55dd98cc-128b-5105-9590-186f8c2c1e8f.html.
[xi] Emma Dumain, Inside the environmental justice movement’s big win, E&E News (Oct. 11, 2022, 6:24 AM), https://www.eenews.net/articles/inside-the-environmental-justice-movements-big-win/.; Mountain Valley Pipeline, https://www.mountainvalleypipeline.info/ (last visited Nov. 14, 2022).
[xii] Nick Sobczyk, Lawmakers back to deal-making on permitting, spending, E&E News (Nov. 15, 2022, 6:35 AM), https://www.eenews.net/articles/lawmakers-back-to-deal-making-on-permitting-spending/.
[xiv] Readout of the White House’s First Stakeholder Convening on Mining Reform, The White House (May 11 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/05/11/readout-of-the-white-houses-first-stakeholder-convening-on-mining-reform/.