Hardrock Mining & Mineral Leasing Flashcards
- In terms of the ability of federal land agencies to authorize and restrict mining activities on federal public lands, how does the General Mining Law (GML) of 1872 differ from the Mineral Leasing Act (MLA) of 1920? (10pts).
In the Mineral Leasing Act of 1920, the federal government is “in the driver’s seat” versus the General Mining Law of 1872 where the people/miners are much more in control. Under the Mineral Leasing Act, the federal government authorizes mining on certain areas, meaning that, unlike under the General Mining Law, agencies have more discretion, power, and control over where people are allowed to mine for oil, gas, shale oil, and four other fertilizer minerals. There is no “right” to mine these materials under the Mineral Leasing Act. People/companies looking to mine must get permission from the agency (Secretary of interior/ BLM) first. On the contrary, the General Mining Law of 1872 says that all surveyed and unsurveyed valuable mineral deposits in the US are “free and open to exploration and purchase”. It establishes mining as the dominant land use on federal lands, unless lands are withdrawn from entry, leasing, and sale due to existing rights. In the case of the General Mining Law, the system is based on self-initiation, and it gives exclusive possession rights to miners while they are exploring public lands in search of valuable minerals to claim. After discovery and making a successful claim, miners then have an unpatented mining claim that are rights to use the land surface of mining claims for any activities related to mining (used to be able to patent historically). To contrast, under the MLA, mineral leases are for fixed terms, the government can require prompt development, and the leases can also include provisions to protect other resources or environmental values. The US also receives a financial return in the form of royalties. Ultimately, under the MLA there is much more agency discretion, governmental control, and it allows provisions to protect other resources. The GML focuses purely on the minable hard-rock resources (there is no opportunity to protect other resources in the miner’s mining claim), and the power is very much with the explorer/miner. (The main/only control agencies have is the ability to withdraw lands, however this is because these lands have existing rights that prevent them from being mined.)
Under the GLM federal land agencies-> limited power over authorizing and restricting mining activities
Under the MLA federal land agencies-> significantly more power regarding the authorization of leases/mining activities and can create provisions to minimize activity or fully terminate leases if they deem necessary.
Describe one common explanation as to why the General Mining Law of 1872 has been so resistant to change over the years. Are you in favor of modernizing this law? If so, explain how you would do so exactly, making explicit reference to parts of the 1872 law that you want to change. If not, explain why, making explicit reference to parts of the 1872 law that you want to remain the same. (10pts)
One argument is that agencies have also been “captured” by mining companies and their interests, which are in favor of the GML. This will cause resistance to change because the agencies are thinking and acting with the miners/mining company’s interests in mind. The GML has been a powerful tool for mining companies to extract minerals from public lands without paying royalties to the government. The law was enacted during a time when the United States was expanding westward, and the government wanted to encourage settlement and development of the western territories. Its only purpose was to encourage settlement and development in the western territories, so it may have worked historically, but I believe it isn’t well suited for modern day. Given this historical context, I would argue that the GML is outdated, and it should be modified to modernize the law. The GML acts as a dominant use law and under it, mining is generally regarded as the highest and best use of land under valid claims. It doesn’t take account of modern environmental issues, and it also does not provide compensation to citizens for the use of our public lands. If I were to modernize this law, I would start by requiring mining companies to pay royalties to the government for the hardrock minerals they extract from public lands, as done for minerals under the MLA. This would provide revenue for the government that I would argue should go into land restoration and conservation efforts and ensure that taxpayers are fairly compensated for the use of public lands. I would also require mining companies to obtain permits before they can begin mining operations. These permits would be subject to environmental review and would ensure that mining operations do not unnecessarily harm the environment, local communities, or other values on the mining claim land. I think the GML should also adopt the closed/open land designations as used under the MLA. This would change the “free and open to exploration and purchase” language in the GLM to be more similar to the MLA in that the “free and open” land will only be land designated as “open” by the agencies (versus all US public lands). Under these changes it may make the most sense to incorporate hardrock mining under the MLA rather than rewriting/amending the GML.
- In terms of “royalties,” revenue returned to the federal government: how does the Mineral Leasing Act (MLA) differ from the General Mining Law of 1872 (GML)? (5 pts)
Under the GML (Hardrock mining) no money is returned to the US/federal government. The mining profits are given directly, in full, to the miner. On the other hand, under the MLA the mining of certain minerals is permitted by the federal government (agency/BLM) and there must be some financial return, in the form of royalties on production, to the federal government (12.5% total, half of this goes to state government, half to federal).
- What is an “inholding” found on public land and what do they have to do with the old patent provision that used to be part of the 1872 General Mining Law (GML)? (5 pts)
An “inholding” is a privately owned parcel of land that is surrounded by public land. There are many inholdings today that are remnants of patented mining claims from the 1872 General Mining Law. Patented claims would convert the section of claimed land from public ownership into private ownership which gave the claimer absolute ownership of the surface and mineral estate and allowed use beyond mining purposes. No new patents can be issues, however there are still lands held under patented mining claims.
- Could a state government impose some type of “reasonable regulation” on a developer of a proposed mine under the 1872 General Mining Law (GML)? Would such a regulation be automatically preempted under the Supremacy Clause of the U.S. Constitution? Please explain with an example. (10 pts).
The GML says that mining, so long as it complies with the laws of the state, local, and territorial regulation, and that these regulations aren’t violating the supremacy clause (not in conflict with federal government) then miners need to follow them (Sec 2322 of GML). So, yes, a state government could impose some type of reasonable regulation as long as it doesn’t violate the supremacy clause. It is not automatically preempted under the Supremacy Clause of the U.S. Constitution until/if it becomes in conflict with the U.S. federal law. The 1872 GML is subject to federal and state regulations. As an example, California imposed regulations to enforce a ban on suction dredge mining ((CA), The People V. Rinehart), and this regulation was seen as a reasonable state regulation and was withheld. It was found in this example that the federal statutory scheme does not prevent states from restricting use of specific mining techniques based upon their assessment of the consequences it would have on other resources.
So, yes, states can regulate mining activities on federal lands, but the extent to which they can do so remains uncertain. (Can they regulate for reasons other than for other resources/minerals? Other values besides mining??) Congress could have expressed that it views mining as the highest and best use of federal land wherever valuable, mineral deposits are found or they could have been discretionary to the agencies and given them exclusive authority to issue permits and to make accommodations between mining and other purposes themselves. However, they didn’t, and they chose to commit miners to continued compliance with state, local, and territorial laws and regulations.
- Very basically, what are the two ways (i.e., methods, pathways) that federal public lands could be “withdrawn” from mineral entry under the 1872 General Mining Law (GML) (5pts).
- Land can be withdrawn through the presidential/executive pathway via FLPMA. Secretary of interior for certain periods of time “deems desirable for a resource use” (<5000 acres; >5000 limited to 20 years withdrawal; emergency withdrawals limited to 3) or national monument designations via executive order by the president.
- Land can also be withdrawn under the 1872 GML through the legislative/congressional pathway through enacting acts that are applicable to only one specific place (i.e., Mining in the Parks Act (1976)).
- With sufficient detail, describe two widespread and often-repeated criticisms of the General Mining Law of 1872 (10 pts)?
One argument is that this law is outdated and irrelevant/not suited for today’s landscape in modern America. This argument has groundwork in the fact that the GML of 1872 was created during the era of westward expansion purely as motivation for the movement and development of westward lands. The law states that all valuable mineral deposits located on public lands shall be open and free for exploration and purchase. This type of language is a huge part of what made westward expansion so appealing to settlers. This language is not relevant to today’s citizens and today’s landscape because the west is now extremely developed, and the retention of public lands is becoming increasingly more important.
Another argument, connected to the first, is that the GML encourages the privatization of public lands. This is shown through its language that any valuable mineral deposit found on lands belonging to the United States (public lands) (and is not withdrawn for a valid, legal reason) is free and open for exploration and purchase. This language is basically an advertisement for the distribution of public lands for private uses through mining claims. Old, patented claims created many inholdings (private lands within public lands) that are a visualization of the impact this law has had on our public lands essentially creating a mini-checkerboard effect.
- With sufficient detail, describe two arguments that are made in favor of retaining the General Mining Law of 1872 law? Please be specific as possible and make a linkage to the legal framework of hardrock mining on public lands. (10pts)
One argument is that it promotes quick mineral extraction and development. The GML of 1872 was written purely to promote mineral development (it is a dominant-use act). This is the sole reason for the law existing the way it does. The GML states “all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are free and open to exploration and purchase, and the lands in which they are found, by citizens of the United States”. It was historically made to promote mineral development to encourage westward expansion, and today its language still encourages quick mineral development. Some argue that in an age where we need a steady supply of critical minerals for green development, batteries, cell phones, technology, etc., the GML provides the best language for quick mineral development to meet the needs of the people and present/future demands for these resources.
Another argument is that it promotes self-initiation and the spirit of entrepreneurship. As discussed, under the GLM, any citizen has the opportunity to go onto any public lands to explore for mineral deposits and to stake a claim. This process is all self-initiated and the entire process involves limited governmental influence. There are also no royalties involved, so it is also argued that the GLM supports smaller businesses and companies/families because they get to keep all profits.
- Can the U.S. Forest Service or Bureau of Land Management regulate mining on the federal lands it manages? (please choose one agency). If so, what specific law and/or regulation could it use to do so? (please choose one law specific to the USFS or BLM or both). Can the USFS or BLM categorically say no to a proposed hard rock mine to be located on lands not withdrawn from mineral entry? Why is this a tricky question? (15 pts)
In mineral leasing and hard rock mining BLM has discretion using certain Acts/provisions, such as the ESA, NEPA, and FLPMA’s unnecessary and undue degradation provision. However, this control is much stronger when dealing with mineral leasing versus hardrock mining. In mineral leasing, BLM is “in the driver’s seat” and has the power to designate land as open or closed, place specific, enforceable restrictions on development, and will receive royalties from any mineral leases. There is no “right to mine” under the MLA., so the BLM has much more control over where mineral leases can occur. Under hardrock mining, any public land that isn’t withdrawn due to valid, existing rights is available for miners to claim mineral deposits. Presidents also often have different interpretations of “unnecessary and undue degradation”, so there is often a pendulum switch in what agencies can/can’t get away with. This is why it is such a tricky question. The interpretation often changes with new administration.
They aren’t legally able to “say no” to a proposed hardrock mine because of the GML, but they can enforce legislation and make sure that the mine is in compliance with FLPMA for example. The GML explicitly states that the local customs and rules of miners are only valid if they are “applicable and not inconsistent with the laws of the United States”. So, even though GML provides citizens with the ability to claim any valuable mineral deposits on free and open public lands, the BLM has authority to regulate so that federal laws (ESA, NEPA, FLPMA, etc.) are not being violated in the process. Lands that are withdrawn from hardrock mining are the only public lands categorically excluded.
- What is meant by the term “agency capture”? (5 pts)
Agency Capture in the terms of mining would be the history of agencies being “captured” by the interests that they are supposed to be regulating. Agencies are sometimes said to be too closely aligned, or “captured” by certain groups. In the case of mining, this is said to be one of the reasonings that could explain why the GML has never been reformed since its passing in 1972 and is reluctant to change.
- What is meant by the term “agency capture”? Please explain the term by making reference to either mining, mineral leasing or rangeland law and management. (see text for discussion of capture). How can citizen suits and/or judicial review provisions provide a check and balance on “captured agencies”? (15pts)
Agency Capture in the terms of mining would be the history of agencies being “captured” by the interests that they are supposed to be regulating. Agencies are sometimes said to be too closely aligned, or “captured” by certain groups. In the case of mining, this is said to be one of the reasonings that could explain why the GML has never been reformed since its passing in 1972 and it is reluctant to change. One example is the BLM headquarters being moved to Grand Junction Colorado so they could share an office building with oil and gas executives. The agencies are supposed to regulate for the greater public good, but sometimes when they make legitimate connections, they become more solely focused on maintaining those.
Citizens can act as a check and balance on captured agencies by suing them based on their own legislation. Environmental laws can provide a basis in citizen suits. For example, if an agency becomes too closely knit with the ideals of mining corporations and this begins to reflect in their actions (or lack of), then citizens can sue based on “X” environmental law/provision and the following judicial review (under APA, etc.) would act as a check and balance on the agency. If the suit turns in favor of the plaintiff(s) (“citizens”) then the courts (Congress) decision will help extricate the agency from the mining corporation.
(iron triangle relationship = bad, give and take mindset)
- What does it mean when someone says that a hard rock mining claim or federal lands grazing permit or timber sale is a “subsidy”? (5 pts)
A subsidy is a financial grant that is granted by the government to private institutions or other public entities, often to stimulate economic activity or promote activities that are in the public good. For example, under rock mining claims, grazing permits, and timber sales, the land is permitted for use via a small fee while not needing to pay any royalties on their production.
