Hardrock Mining

Posted: Aug 31, 2010

 

Mineral extraction in the United States is governed by various federal and state mining, land use, and environmental laws, depending in large part on the type of minerals being extracted and who owns the land.  Minerals are generally categorized as locatableleasable or saleable minerals.  This section of RLCH Laws focuses on the law regarding development of locatable (also known as hardrock) minerals on federal lands.  The General Mining Law of 1872, the organic acts of the various federal land management agencies, and federal and state environmental statutes control development of these minerals.

 

Key Concepts

General Mining Law of 1872

The General Mining Law of 1872 (GML) controls extraction of hardrock minerals, creating a system of property rights based on the status of the mining claim. The GML provides that all valuable mineral deposits on lands owned by the United States are open to exploration and purchase and that the land above such valuable mineral deposits is open to occupation and purchase. Under this law, a miner who is searching for minerals has certain rights; a miner who has made a valuable discovery of minerals has more extensive rights.

Hardrock Minerals

Hardrock minerals is the term used to describe those valuable minerals regulated by the GML. Hardrock minerals include precious minerals such as gold and silver and industrial minerals like molybdenum, zinc, and copper. While most of the energy minerals are in the leasable minerals category, uranium is also a hardrock mineral. Hardrock minerals are also known as locatable minerals because they are governed by the GML's entry-and-location scheme. When Congress passed the GML in 1872 (and its predecessor in 1866), the law covered most minerals.

Subsequently, the Mineral Leasing Act of 1920, the Materials Act of 1947 and the Common Varieties Act of 1955 removed many minerals (leasable and saleable minerals) from the authority of the GML. Consequently, what is left -- the locatable minerals -- are defined as valuable minerals that are not leasable or saleable. The leasable minerals are coal, phosphate, sodium, potassium, oil, oil shale, gilsonite (including all vein-type solid hydrocarbons), and natural gas. The saleable minerals are sand, gravel, stone, soil, and other "common-variety" mineral materials. 

Pedis possessio

The GML gives a right of exclusive possession, called pedis possessio, to hardrock miners while they are exploring the public lands in search of a discovery of valuable minerals. This property right protects miners against claims by all other private individuals, but it does not give them any property right against the federal government. In order to obtain a pedis possessio right, a miner must clearly mark the claim on the ground, file the claim with the county recorder's office and the Bureau of Land Management (BLM), and pay a $25 location fee to the Secretary of the Interior at the time when the claim is recorded with the BLM. In order to keep the claim, the miner must pay an annual claim maintenance fee of $100 per year. Miners with 10 or fewer claims may perform $100 worth of assessment work instead of paying the claim maintenance fee.

Discovery

Under the GML, a miner makes a "discovery" of minerals if the claimed mineral deposit is valuable enough that a prudent person would be justified in expending further labor and money to develop the minerals. Generally, this means that the miner must be able to make a profit by extracting the minerals and bringing them to market (called the "marketability test").

A miner need not file evidence of a discovery with either the county clerk's office or the BLM in order to keep a mining claim. A miner must only provide evidence of discovery if (1) the miner applies for a patent; or (2) the miner plans to mine in an area where hardrock mining was prohibited after the discovery. It is unclear whether a miner must prove discovery in order to obtain approval of a plan of operations, which is akin to a mining permit. Different administrations have taken different positions on this issue.

Unpatented Mining Claim

When a miner makes a discovery of valuable minerals, the pedis possessio right is converted to an unpatented mining claim. A miner may only use the surface of an unpatented mining claim for activities related to mining, such as mining itself, grazing to feed and clothe the miner, and timber production to create housing for employees. The maintenance requirements for an unpatented mining claim are the same as those for pedis possessio -- in order to keep the claim, the miner must pay an annual claim maintenance fee of $100 per year, and miners with 10 or fewer claims may perform $100 worth of assessment work instead of paying the fee.

In contrast to a pedis possessio right, an unpatented mining claim protects the miner's interest in the minerals against all other entities, including the government. If the government prohibits hardrock mining on lands subject to an unpatented mining claim, it must compensate the miner for the value of the claim.

Patented Mining Claim

A miner may apply for a patent for any unpatented mining claim. A patent gives the miner absolute ownership of the surface and minerals of the claim, giving the miner the right to use the surface for purposes beyond those that are incident to mining. In order to receive a patent, the miner must submit an affidavit showing that s/he has performed $500 of work on the claim and pay the Bureau of Land Management $5 per acre. Every year since 1994, Congress has passed a rider on an appropriations bill creating a moratorium on patenting, so no patent applications submitted in 1994 or later are currently considered. 

Types of Claims: Lode Claim 

A lode claim is a claim to a mineral lode, which is a well-defined vein of minerals. The maximum size for a lode claim is 1,500 feet in length and 300 feet on each side of the middle of the vein. No mining regulation may limit the width of a mining claim to less than 25 feet on each side of the middle of the vein. Lode claims follow the lode; they need not conform to survey lines. Lode claims have been traditionally mined by digging shafts and adits (vertical and horizontal tunnels) and then processing the ore at a mill. Cyanide leaching is a modern technique for extracting valuable minerals from low quality lode claims.

Types of Claims: Placer Claim

A placer claim is a claim to minerals that do not occur in a vein or lode, but instead occur in the softer soil near the Earth's surface. Placer claims must conform to the boundaries of the surveyed areas in which they are located to the extent practicable. If the land has not been surveyed prior to the location of the placer claim, it is surveyed when the claim is located. Placer claims were originally mined with gold pans, for the simplest deposits, but hydraulic mining and dredges combined with sluice boxes have been used to develop most of the placer deposits.

Millsite

A millsite is a tract of land a miner uses to work mining claims. Millsites must be located on non-mineral land; the miner uses the lands in addition to the lands on which the miner has mining claims. Most courts hold that a millsite is a mining location rather than a mining claim. This means that assessment work and annual expenditures are not required for a miner to keep possession of a millsite.

The Right to Mine versus Permits to Mine

The BLM has principal authority for mining regulation under the GML.  Miners must record their claims with the BLM in addition to filing them with the county, and the agency has sole authority to determine whether a mining claim is valid on all federal lands. The BLM and other land management agencies (e.g., Forest Service, National Park Service) have authority to regulate the surface impacts of mining under their individual land management statutes. For example, the BLM oversees hardrock mining on its lands through a permitting system in accord with its mandate of multiple-use management and its duty to prevent "undue and unnecessary degradation" to the public lands in its care. See Federal Land Policy and Management Act, 43 U.S.C. section 1732(b). Similarly, the Forest Service oversees hardrock mining on National Forest System lands in accord with its multiple-use mandate and by controlling the occupancy and use of its lands through a permit system. 

States may also have a say in regulating the environmental impacts of hardrock mining. Many do so quite extensively through both state mining laws and various environmental statutes regulating air quality, water quality and toxic materials. 

Whose Minerals Are These, Anyway?

The GML does not require hardrock miners to pay royalties in exchange for the right to mine, although a miner must pay $5/acre to receive a patent. Only claim maintenance fees and assessment work are required for pedis possessio and unpatented mining claims. This distinguishes hardrock mining from mining for both leasable and saleable minerals. Miners must pay royalties when extracting leasable minerals like oil and gas, and they must purchase the right to mine saleable minerals. 

Critics of the GML argue that the federal government should receive some of the benefits of allowing the extraction of valuable minerals from its lands. Thus, the lack of royalty provisions has helped to fuel calls for mining law reform. For more information, see Controversies: Mining Law Reform

Process Essentials: Acquiring a Mining Permit

In order to mine valuable minerals on federal lands, a company must not only acquire a valid mining claim, but must satisfy agency requirements for using the surface of the land. The process for obtaining a hardrock mining permit depends on which agency manages the lands in question. The process for BLM lands can be found in the Code of Federal Regulations at 48 C.F.R. 3809. The process for Forest Service lands can be found in the Code of Federal Regulations at 36 C.F.R. 228. 

BLM Lands

On BLM lands, mining operations fall into one of three categories: 

  1. Casual use
  2. Notice operations, and
  3. Plan-level operations.

1. Casual use operations are expected to have negligible cumulative effects on the land. A miner need not notify the BLM before engaging in casual use operations. 

Casual mining includes "collection of geochemical, rock, soil, or mineral specimens using hand tools; hand panning; or non-motorized sluicing." It may also include "use of small portable suction dredges." "It also generally includes use of metal detectors, gold spears and other battery-operated devices for sensing the presence of minerals, and hand and battery-operated drywashers." Casual use generally does not include use of mechanized earth-moving equipment, truck-mounted drilling equipment, motorized vehicles in areas closed to off-road vehicles, chemicals, or explosives and does not include occupancy (which includes residence, construction, and the presence of temporary or permanent structures on the land).

2. Notice operations can cause five acres or less of unreclaimed surface disturbance to public lands. For notice operations, the miner must file a notice with the local BLM office with jurisdiction over the lands involved, although the miner is not required to fill out a specific form. A miner may not segment a project area by filing a series of notices for parts of a project to avoid filing a plan of operations for the entire project.

A notice must include: 

  • Operator contact information and the specific unpatented mining claims where disturbance will occur;
  • A map;
  • Descriptions of proposed activities, including measures the operator will take to prevent unnecessary and undue degradation during operations; access routes for the project; equipment the miner intends to use; and a schedule of activities from the beginning of operations to the completion of reclamation;
  • A reclamation plan and cost estimate; and
  • Any additional requirements that the BLM may choose to impose.

3. For plan-level operations, a miner must submit a plan of operations to the local BLM office. The plan does not have to be on a specific form, but it does have to show that the mine will not cause unnecessary and undue degradation of the public lands.

The plan must include: 

  • The same operator information required for notice operations;
  • Description of operations;
  • A map showing appropriate scale;
  • Location of exploration activities, drill sites, mining activities, processing facilities, waste rock and tailings disposal areas, support facilities, structures, buildings, and access routes;
  • Preliminary or conceptual designs, cross sections, and operating plans for mining areas, processing facilities, and waste rock and tailings disposal facilities;
  • Water management plans;
  • Rock characterization and handling plans;
  • Quality assurance plans; 
  • Spill contingency plans;
  • Schedule of operations from start through closure;
  • Plans for all access roads, water supply pipelines, and power or utility services; and
  • Detailed reclamation plan, including a description of the equipment, devices, or practices the operator proposes to use and post-closure management.

Forest Service Lands

Reclamation Plan

The operator must submit a plan that shows how s/he will:
• save topsoil for reapplication after areas have been reshaped after development
• control erosion, landslides, and water runoff;
• isolate, remove, or control toxic materials;
• reshape the area disturbed;
• reapply topsoil, and revegetate disturbed areas (where "reasonably practicable"); and
• rehabilitate fisheries and wildlife habitat.

On Forest Service lands, mining operations fall into one of three categories, activities that require a:
1. Notice of intent to operate nor a plan of operations,
2. Notice of intent, and
3. Plan of operations.

1. Activities that do not require a notice of intent or a plan of operations are not expected to result in a "significant disturbance of surface resources." A miner need not notify the Forest Service before engaging in operations in this category.

Activities that require neither a notice of intent nor a plan of operations include:

  • operations that only use vehicles on existing public roads or existing Forest Service roads;
  • prospecting and sampling that do not cause significant surface resource disturbance and do not require more than a reasonable amount of mineral extraction for analysis, including "searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand-sluicing, using battery-operated dry washers, and collecting of mineral specimens using hand tools";
  • marking a mining claim;
  • underground operations that do not cause significant surface disturbance;
  • operations that will not cause greater surface disturbance than other activities performed on Forest Service lands that do not require a special use authorization, contract, or written authorization; or
  • operations that do not require mechanized earthmoving equipment or cutting of trees, unless the operations otherwise might cause significant disturbance of surface resources.

2. If an activity may result in a significant disturbance of surface resources, the miner must submit a notice of intent to operate to the District Ranger with jurisdiction over the lands where the mine will be located. The notice must provide sufficient information for the ranger to identify the area described, the nature of the proposed operations, the route of access to the project area, and the method of transportation to be used. Within 15 days of the submission of the notice, the District Ranger must tell the miner whether a plan of operations is required.

3. If an activity will likely result in a significant disturbance of surface resources, the operator must submit a plan of operations. A plan must include:

  • The name and mailing address of the operators (and the claimants if they are not the operators);
  • A map; and
  • A description of the operations proposed, the manner in which they will be conducted, existing and proposed roads and access routes, the modes of transportation that will be used, the time period when the activity will take place, and environmental protection measures that will be taken.

Once a permit is issued, a miner must post a bond to ensure that reclamation takes place. 

Environmental Protection on Hardrock Mining Lands

Although the GML does not provide for environmental protection on hardrock mining lands, other laws that apply to hardrock mining provide some measure of protection. First, hardrock mining operations must comply with all federal environmental laws. Second, the governing statutes for the agencies that manage hardrock mining have land use and environmental protection mandates. Section 102 of the Federal Land Policy and Management Act (FLPMA) requires the BLM to manage for multiple use. While the multiple-use mandate does not require that all uses be accommodated on each parcel of land, the BLM cannot manage the lands only for mining. it must consider the impact of mining on the suitability of the land for other uses. More importantly, FLPMA provides that BLM must manage lands such that mining operations do not cause "unnecessary and undue degradation."

 

State and Local Regulation of Hardrock Mining
Much of the environmental regulation of hardrock mining comes from state law rather than federal law. States regulate many different aspects of hardrock mining, including air quality, water quality, fish and wildlife, waste disposal, pit reclamation and bonding. In California Coastal Commission v. Granite Rock Co., the U. S. Supreme Court held that states do not have land use planning authority on federal lands. In the context of hardrock mining, this means that states and municipalities may not prohibit mining on public lands if the federal government has approved mining on those lands. States and municipalities may, however, impose environmental regulations on mining on public lands, but their regulations do not effectively regulate the mine out of business. 

On September 10, 2008, the Colorado Supreme Court heard oral arguments in a challenge to Summit County’s ban on cyanide heap-leach mining. The Colorado Mining Association and the Colorado Mined Land Reclamation Board have challenged Summit County’s ban on the grounds that county regulation of hardrock mining violates Colorado state law, which requires uniform standards for regulation of mining. Summit County claims that its ordinance is not preempted by state law because it is a land use regulation; Colorado state law regulates mining but allows counties to implement land use regulations on private land. At first glance, this case appears to turn the Granite Rock rule on its head. However, the Summit County ordinance only applies to private land, and theGranite Rock rule only applies to federal public land.

The Forest Service has also implemented regulations that control hardrock mining activity. First, the Multiple Use Sustained Yield Act of 1960 requires the Forest Service to manage lands for "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." Therefore, like the BLM, the Forest Service must consider the effects of mining on other possible uses of the land. Second, the Organic Administration Act of 1897, also known as the Forest Service Organic Act, states that the Forest Service may regulate occupancy and use of Forest Service lands. Finally, the Forest Service regulations require that all operations be conducted so as to "minimize adverse environmental impacts." 

Controversies

Mining Law Reform

Many efforts have emerged to reform the GML, but none yet has achieved the overhaul that environmental advocates have called for.  For example, on November 1, 2007, the House passed a bill, sponsored by Representative Nick Rahall (D-WV) that would fundamentally change many aspects of the GML. The House bill would have established an 8% gross royalty on “net smelter return” on future production and a 4% gross royalty on existing mining operations; establish broad national environmental standards; bar mining that could impair a national park; eliminate patent except for some grandfathered situations; bar mining in broadly-defined conservation lands; authorize any community to petition for the withdrawal of lands from mining; and allocate two-thirds of royalties to clean up old and abandoned mines.

During the Senate debate of this bill, several controversial issues emerged, and the legislation was not passed by the 110th Congress. Several bills (referenced below) fared similarly before the 111th Congress. The Obama administration pursued a limited number of reforms in 2011 through the federal budget process, including a new fee to pay for reclamation of abandoned mines, and new royalties on companies mining gold, copper, lead, and uranium.

In January, 2009, a report released by the Pew Campaign for Responsible Mining concluded that the Treasury would miss as much as $1.6 billion over the next decade, in lost royalties and reclamation fees and in tax cuts, if Congress fails to update the 1872 hardrock mining law.

Royalties

One major point of contention has been whether to impose royalties on the hardrock mining industry and how large of a royalty should be imposed. The 2007 House bill included an 8% gross royalty for new hardrock claims and a 4% gross royalty for existing hardrock claims. The mining industry advocates a net royalty between 3% and 5%. However, one Senate proposal included the royalty scheme from the House bill, maintenance fees, and a reclamation fee. According to a Bloomberg story in January 2013, mining reform legislation likely to come before the 113th Congress will include royalties.

Environmental Protection

The GML currently contains no provisions designed to protect the areas where hardrock mining occurs. As a result, environmental groups and sportsmen's groups have called for environmental protection requirements for hardrock mining operations. Past legislative proposals in the House of Representatives included many environmental protections: closing wilderness study areas, areas of critical environmental concern, wild and scenic rivers, and potential wild and scenic rivers to location of mining claims; conditioning permits for exploration and drilling operations on submission of plans for mitigation of environmental consequences and reclamation; requiring miners to post bonds to cover reclamation costs in the event that the miner goes out of business or does not complete reclamation for some other reason; and creating a reclamation fund for reclaiming abandoned hardrock mines. This fund would be supported by fines levied for violations of the law. 

Senators in favor of environmental provisions have suggested a fund for abandoned mine cleanup, increases in the amount of land off limits to hardrock mining, and greater authority for local governments to exclude certain lands from hardrock mining. Other senators expressed concerns that the House bill's environmental provisions were too damaging to industry and pushed for a milder bill.

While GML reform legislation has been introduced over the past several sessions, environmental groups have sought improved agency regulations to protect the environment. For example, a lawsuit filed in federal court on October 20, 2009, sought to overturn regulations at the Department of the Interior and the Department of Agriculture that favor mining development on public lands. See "New lawsuit targets mining industry," Elko Daily Free Press, 10/21/09. And lawmakers and environmental groups have repeatedly called for tightening what they see as loopholes in the Clean Water Act's Section 404 permitting process for discharge of mining wastes without treatment. See the 2013 report by the National Wildlife Federation, Honoring the River: How hardrock mining impacts tribal communities.

Uranium Mining

The ability to use uranium as a fuel source for nuclear power has led to a renewed interest in uranium mining in recent years. This resurgence of interest in uranium has led many groups to push for reforms of uranium mining as part of the hardrock mining reform process.

In addition to issues raised about uranium mining near protected natural areas (see below), Indian tribes have voiced concerns over the health effects of uranium mining. Because of the location of many uranium claims on or near reservations, many tribal members worked as uranium miners during the last uranium boom.  This boom took place during the Cold War when America sought uranium for thermonuclear weapons. Many of these tribal members suffered negative health effects as a result of their time in the uranium mines, including skin problems, stomach problems, hearing problems, lung cancer, and leukemia. No provisions of the proposed reform bills address uranium mining directly.

A bill introduced in the 111th Congress (H.R. 3534) would have converted uranium from a locatable mineral governed by the General Mining Law of 1872 to leasable mineral under the Mineral Leasing Act, treating uranium as if it were energy similar to oil and gas, rather than as a hardrock mining metal.

In June 2008, the Bush administration released a five-year plan for cleaning up uranium tailings pollution on the Navajo reservation.  To access the plan itself, see Health and Environmental Impacts of Uranium Contamination in the Navajo Nation: Five-Year Plan.

Cleanup Costs

Finally, much debate has centered on the issue of cleaning up abandoned mines. Environmental groups and sportsmen's groups have advocated policies that would facilitate mine cleanup. These policies include using royalties to finance reclamation and encouraging "Good Samaritans" who did not contribute to the pollution of the area to assume responsibility for the cleanup by waiving liability under the Clean Water Act and other environmental laws. Under the House bill, two-thirds of fees and royalties from hardrock mining would be used for abandoned mine cleanup and reclamation. The issue of reclamation has contributed to the controversy over hardrock mining reform in the Senate. One Senate proposal would exempt Good Samaritans from Clean Water Act liability if they make an effort to find the responsible party, no responsible party can be found, and the Good Samaritan does not leave the water quality in the area worse than it was before the cleanup started.

In December 2012, the EPA issued non-binding policy guidance clarifying protection for volunteer groups that clean up abandoned mine sites. See "A positive step on cleanup of mines," Denver Post, 1/4/13.

The federal economic stimulus bill enacted in February 2009 included $105 million in direct spending by the National Park Service, Bureau of Land Management and Forest Service to clean thousands of abandoned hardrock mines.

In March 2012, Interior Secretary Ken Salazar announced a rule change that allows fees collected from coal mining and deposited into the Abandoned Mine Land Program to be used for projects not related to coal development. See "Montana hard-rock mining cleanup to continue after government rule change," Missoulian, 3/7/12.

For a discussion of this program in relation to Wyoming, see "Wyoming's AML revenue stream slowing to a trickle," Wyo File, 4/17/12.

Uranium Mining on Public Lands Near Grand Canyon National Park

Mining companies have proposed five uranium prospecting projects in the Kaibab National Forest near the Grand Canyon. The Forest Service has approved one of the proposals, allowing Vane Minerals Group, a British mining company, to explore a portion of Kaibab National Forest less than three miles from the Grand Canyon for uranium exploration. The approval allows Vane to drill seven wells.

State, local, and tribal government officials in Arizona have voiced strong opposition to the projects. In addition, the Sierra Club, the Center for Biological Diversity, and the Grand Canyon Trust have filed suit claiming that the Forest Service violated the National Environmental Policy Act (NEPA) with its method of approving Vane's project. Instead of doing an environmental assessment, the Forest Service has claimed that the projects fall under a categorical exclusion to NEPA because the projects might not lead to the discovery of uranium and because the exploration projects will last for less than a year. Initially, a federal judge issued a preliminary injunction halting the project, ruling that the Forest Service likely misused the categorical exclusion when it issued Vane's permit without performing an environmental analysis.  Subsequently, the Forest Service agreed to withdraw its approvals of Vane's applications and create an environmental impact statement (EIS) discussing potential environmental consequences before approving the project.

Forest Service officials claim that the GML prevents the federal government from denying the mining companies the right to explore for uranium in the Tusayan Ranger District. This claim has fueled calls for reform of the mining law.

In late February 2011, the U.S. Department of the Interior released a draft EIS for mining activities in the area. One of the four alternatives presented in the document would exempt up to 1 million acres from new hardrock mining activity. In March 2011, the Arizona Department of Environmental Quality issued air quality permits and an aquifer protection permit for the Pineut, EZ and Canyon mining projects near Grand Canyon National Park. All of these projects are subject to the federal review process overseen by the DOI.

After unsuccessful efforts to bar mining in this area in previous congressional sessions, Rep. Grijalva (D-Ariz.) introduced H.R. 855 on March 1, 2011. This bill would have permanently block new mining projects on public lands adjacent to Grand Canyon National Park, but it was not enacted.

In January 2012, the U.S. Department of the Interior formally withdrew from uranium mining for 20 years the one million acres of Forest Service and BLM land adjacent to the Grand Canyon. The withdrawal bars the initiation of new claims, but does not necessarily block development of existing claims. Industry groups filed several lawsuits challenged the Secretary's authority to make this withdrawal and its compliance with NEPA. In March 2013 a federal judge upheld the Secretary's withdrawal authority, and in May 2013 he refused to reconsider this decision.

Despite the withdrawal, the Forest Service allowed the reopening of the Canyon Mine in 2012. Several conservation groups and the Havasupai Tribe filed a lawsuit in March 2013, arguing that the agency failed to comply with NEPA (as described above) by failing to update environmental reviews last completed in 1986. In a similar case, the Ninth Circuit ruled that the BLM did not violate the law when it allowed Denison Mines Corporation to reopen its Arizona 1 Mine in Mojave County.

For updated information on action to oppose the uranium mine, see the Grand Canyon Trust's web site.

Selenium Pollution in Idaho

On October 22, 2007, the Greater Yellowstone Coalition and the Natural Resources Defense Council filed 60-day notices of intent to sue with J. R. Simplot Co. and the U.S. Forest Service, alleging that Simplot's operation of the Smoky Canyon Mine in the Caribou-Targhee National Forest violates the Resource Conservation and Recovery Act (RCRA). The groups claim that Simplot has polluted the groundwater on the national forest lands with selenium, a byproduct of phosphate mining. Selenium has been shown to accumulate in the food chain. Thus, small concentrations of selenium in phytoplankton lead to higher concentrations of selenium in fish that eat those phytoplankton, and birds, fish, and humans at the top of the food chain can be exposed to even higher concentrations of selenium. Selenium pollution also poses a risk to the cutthroat trout.

Recently, the Forest Service and the BLM approved a 1,400-acre expansion to the Smoky Canyon Mine. The expansion will require drilling in federally protected roadless areas. Therefore, several environmental groups have claimed that the expansion violates the Roadless Rule. The Caribou Clean Water Partnership plans to appeal the approval on these grounds. On September 12, 2008, the Greater Yellowstone Coalition, the Natural Resources Defense Council, the Sierra Club, and Defenders of Wildlife sued the Forest Service and the BLM in federal district court in Idaho.

In October 2007, Edgar Imhoff, a former federal hydrologist and environmental cleanup expert, released a report claiming that the phosphate industry and federal agency officials have known, or should have known, about the harmful effects of selenium pollution since the 1970s and have not done anything to prevent or minimize selenium pollution in phosphate mining.

Rock Creek Mine in Cabinet Mountains Wilderness, Montana

In June, 2008 Revett Minerals, Inc. announced that it would begin work on a mine for silver, copper, and other minerals in Montana. The project would include an underground mine beneath Montana's Cabinet Mountains Wilderness Area, making it the first underground mine under a wilderness area. Since the original approval for the project was granted in June 2003, the mine has faced legal challenges under numerous environmental statutes. Now, environmental groups plan to sue on the basis that the project could harm the bull trout, which is a threatened species protected by the Endangered Species Act. These groups claim that the project would allow Revett to dump sediment into Rock Creek, which would destroy bull trout habitat.

Environmentalists have voiced several other criticisms of this project as well. The mining operation would generate 100 million tons of tailings, or contaminated mine waste. The mine also has the potential to drain a series of lakes in the wilderness area, destroying the habitat of the organisms that live in those lakes. Lastly, environmental groups are concerned that subsidence could destroy the wilderness area above the mine. Subsidence occurs when an underground mining operation removes the minerals that are holding the land surface up. Eventually, severe subsidence can cause the ground above the mine to cave in.

On December 4, 2008, the Montana Supreme Court sided with environmentalists, ruling that the mine must comply with Montana’s Water Quality Act, which requires a non-degradation review before permitting any project that would compromise “high quality waters.” The Montana Supreme Court ruled in environmentalists favor again in October 2012, holding that the Montana Department of Environmental Quality violated state water quality laws when it issued a general construction permit for the mining operation, rather than an individual water quality permit designed to protect Rock Creek's uniquely sensitive resources.

In March 2010, a federal judge ruled that the permits for the mine issued by the U.S. Forest Service were illegal, and halted all further activitiy at the site, but the opinion left open an opportunity for the defects to be fixed and the project resumed. For coverage of Judge Molloy's subsequent explanation of the ruling, see "Judge's ruling explained, Revett expects to get mine in Cabinets back on track," Missoulian, 5/12/10.

The mine has fared better in the face of Endangered Species Act claims. In November 2011, the Ninth Circuit upheld the U.S. Fish & Wildlife Service's determination that the mine would cause no "adverse modification" to bull trout critical habitat and would cause "no jeopardy" to grizzly bears.

For more details on the Rock Creek Mine, visit the Clark Fork Coalition's web site.  See also "Conservationists Challenge Federal Approvals of Rock Creek Mine Plan," and About the Mine, Rock Creek Alliance

Good Samaritin Laws

The General Mining Law of 1872 does not require hardrock miners to post bonds to pay for cleanup in the event that the miner goes out of business. As a result, mining companies have abandoned many sites without reclaiming them, leading to serious pollution problems. One major concern from these sites is mercury. Mercury, used to isolate gold in mining operations, enters the water and accumulates in the food chain. Human consumption of fish contaminated with mercury can have a number of negative health effects, such as problems with sight, hearing and coordination. Many watersheds in the West are currently in the process of having damage from hardrock mining repaired. This is a big job: According to a 2008 Government Accountability Office report, there are at least 161,000 abandoned hardrock mines in the 12 western states and Alaska.

Addressing this pollution is one of the major contemporary challenges associated with hardrock mining. Some groups advocate Good Samaritan laws, which would allow individuals or groups that played no role in the pollution of a hardrock mining site to reclaim the site without being subject to liability under the Clean Water Act. (See discussion of S. 1003 below.) Another proposed solution is re-mining, which would allow mining companies to mine an abandoned site if they use a portion of the proceeds from that mining to clean up the site. This proposal has received less support from environmental groups than Good Samaritan provisions have.

A coalition of environmental groups has threatened to sue the EPA over its cleanup policies. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), polluters must show that they have the financial resources to reclaim pollution sites before they begin work. The environmental groups allege that the EPA has failed to promulgate regulations to enforce this law.

For abandoned mines, Superfund designation can help access funds for necessary cleanup, but the process involves a great deal of bureaucratic maneuvering. See, for example, the account of a dispute between the EPA and BLM over cleanup of the abandoned Formosa Mine in Southern Oregon: "EPA, BLM dispute slows progress on Superfund site cleanup near Roseburg," The Oregonian, 11/18/09.

The EPA confirmed in the fall of 2010 that it is preparing a new regulation that would require "worst case" hard-rock mining bonds under Superfund, which would be aimed at covering catastrophic accidents at mining sites--beyond the scope of current reclamation bonds. And, in April 2012, the EPA announced that it is working to clarify the regulations that apply to volunteer groups such as Trout Unlimited attempting to clean up abandoned mine sites.

Local Control of Mining Activities

In 1993 the Colorado General Assembly examined the use of cyanide in mining operations, considering the impacts of the mining waste pollution from past practices at the Summitville Mine in Summit County, Colorado. Legislators ultimately decided to allow the Colorado Mined Land Reclamation Board to authorize the use of such mining techniques, but only under the terms of an Environmental Protection Plan designed for each operation sufficient to protect human health, property, and the environment. In 2004, Summit County enacted a local land use regulation banning the use of cyanide heap leach mining in any zoning district in the county. On January 12, 2009, the Colorado Supreme Court ruled that Summit County’s ordinance would entirely displace the Board’s authority to authorize the use of such mining techniques, and thus was preempted by state law. Colorado Mining Association v. Bd. of County Commissioners of Summit County, No. 07SC497, 39 ELR 20017 (Colo. Jan. 12, 2009). 

Collaboration in Action  

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Hardrock Mining Legislation in the 113th Congress

H.R. 761, introduced on Feb. 15, 2013, would streamline the proocessing of "strategic and critical minerals," giving discretion to any agency--state, federal or local--to determine if environmental documentation is necessary. Similar legislation before the 112th Congress faced stiff criticism from the Office of Management and Budget. At a hearing on H.R. 761 in March 2013, a BLM official said, that the proposed legislation "would remove many of the environmental safeguards for almost all types of hardrock mines on public lands, bypass evaluation of potential impacts under [the National Environmental Policy Act], and limit public involvement in agency decisionmaking."

H.R. 1603, introduced in March 2013, would require the Secretary of the Interior to conduct an assessment of the nation's cabability to meet domestic demands for key mineral resources. The intent, according to sponsor Rep. Lamborn (R.-Colo.) is to reduce the U.S. dependence on rare earth minerals and other materials necessary for economic or defense needs.This is similar to H.R 2011, which was introduced by not enacted by the 112th Congress.

 

Public Laws

General Mining Law of 1872 (use Previous and Next buttons to see different sections) 

Regulations

BLM Regulations Related to the GML (43 C.F.R. 3809)

Forest Service Regulations Related to the GML (36 C.F.R. 228)

Other Resources

Earthworks
Formerly known as the Mineral Policy Center, Earthworks is a non-profit organization dedicated to minimizing the environmental impacts of mineral development. The organization’s website includes information on issues related to domestic and international hardrock mining and mining law reform.

Pew Campaign for Responsible Mining

This national campaign for mining law reform periodically issues informative reports, such as the 2009 "Reforming the U.S. Hardrock Mining Law of 1872: The Price of Inaction."

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