New BLM rule gives priority to renewable projects over mining claims

Posted: Apr 29, 2013

Written by

Scott Streater, Greenwire
Solar panels

The Bureau of Land Management announced today that it has finalized a rule allowing it to temporarily withdraw public lands from new mining claims where wind and solar power developers have applied to locate new projects.

The final rule, set to be published tomorrow in the Federal Register, replaces a nearly identical interim rule adopted by the Interior Department in April 2011 that expired Friday, said David Quick, a BLM spokesman.

The final rule would allow BLM to halt new mining claims for up to two years on lands where a wind or solar right of way (ROW) application has been filed or in areas of public land that the agency has offered for wind and solar development.

Current law allows BLM to "segregate" public lands that are proposed for sale or exchange, but not lands with ROW applications. The goal of the final rule announced today is to give BLM more time to analyze solar and wind power projects and "avoid the delays and uncertainty that could result from encumbrances placed on lands after a wind or solar energy generation ROW application has been filed or after the BLM has identified an area for such applications," according to an advance notice published in today's Federal Register.

BLM also said the rule aims to prevent people from filing mining claims solely to force the ROW applicant to pay them to give up their claim.

The rule takes effect once it is published tomorrow, though it will not affect valid existing claims protected under the 1872 General Mining Act, which forbids the federal government from permitting any surface activity that would interfere with a properly located mining claim. The final rule allows for a two-year withdrawal to be extended for an additional two years if the BLM state director in the applicable state determines that an extension is necessary.

"Smart planning before conflicts arise should be a top priority for the BLM, and it seems this rule will help reduce potential issues down the road," said Alex Daue, renewable energy associate for the Wilderness Society in Denver. "With this rule, rights of ways for renewable energy development such as wind and solar will be given priority over predatory mining claim applications on public lands."

The National Mining Association, however, is not pleased with the final rule, echoing similar concerns the industry had when commenting on the temporary rule. The association has expressed concern that the rule is overly broad and could affect and interfere with legitimate mining claims.

Carol Raulston, a spokeswoman for the National Mining Association, said in an emailed statement that since the temporary rule was implemented two years ago, BLM has provided "some additional reassurances in the final rule in that the rule would be narrowly construed, would only limit the location of mining claims after the segregation under this rule is announced and would not affect previously located claims."

But overall, she said, "NMA is disappointed with the outcome of the rule."

The final rule continues to advance the Obama administration's efforts to use public lands to promote the development of clean energy from renewable sources like solar, wind and geothermal power.

BLM in the past five years has approved 13 solar and eight wind power project ROWs, according to the advance notice.

But conflicts between mining interests and renewable energy developers have been a concern in recent years for solar and wind developers proposing projects on federal land, according to the notice.

Of the 21 approved wind and solar ROW applications, two mining claims were filed after the ROW applications were "publicly announced" but prior to any final agency decision, according to BLM.

In addition, in the past two years, 437 new mining claims covering more than 20 million acres were located within wind energy ROW application areas in Arizona, California, Idaho, Nevada, Oregon, Utah and Wyoming; an additional 216 new mining claims were located within solar ROW application areas after they were identified as solar energy zones (SEZs) last year, according to BLM's advance notice.

Interior last fall finalized the SEZs as part of a plan to fast-track commercial solar development in areas with high solar resources and low wildlife values (E&ENews PM, Oct. 12, 2012).

BLM announced in December it is considering withdrawing more than 300,000 acres in and around those SEZs from new mining claims for as long as 20 years, though no final decision has been made on that proposal (Greenwire, Dec. 14, 2012).

But it is clear that BLM has concerns about mining claims interfering with renewables development.

"In the BLM's experience, some of these mining claims are likely to be valid and/or filed without consideration of the pending ROW application, but others are likely to be speculative and not located for mining purposes," according to today's advance notice. "The latter are likely filed for no purpose other than to provide a means for the mining claimant to compel payment from the ROW applicant or grantee in exchange for relinquishing the mining claim. While it is relatively easy and inexpensive to locate a mining claim because a mining claim location requires no prior approval from the BLM, it can be difficult, time-consuming, and costly to extinguish a claim."

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