NV Mijnen tests limits of 150-year-old mining law

Members of the Reno Sparks Indian Colony are holding an event near the planned Thacker Pass lithium mining site. (Photo: Little Buck Harjo/Reno-Sparks Indian Colony)

Nevada is emerging as a major battleground to determine the fate of a century and a half old mining law as demand for critical minerals in the US soars.

Mining developers seeking minerals in Nevada are grappling with the aftermath of a 2022 federal court ruling against an Arizona copper mine, now known — infamously among mining companies and their political allies — as the “Rosemont Decision.”

A U.S. appeals court decision ruled that while federal mining law allows companies to mine on federal land where economically valuable minerals are present, they do not have the right to use federal land without valuable minerals as a mine landfill.

The ruling has the potential to send mining projects – years in the making – back to square one.

In the case of a planned molybdenum mine by Nevada-based developer Eureka Moly LLC, a district court judge vacated the Bureau of Land Management’s 2019 approval of the project after ruling that the developer had no right to waste rock dump it on federal land with no valuable mineral deposits.

District Judge Larry Hicks, who oversaw the Eureka Moly case, cited the Rosemount decision in his ruling, noting that there was no evidence of valuable mineral deposits on the federal land it proposed to use as a landfill, leading developers mining claims for those acres. invalid.

“BLM cannot get around the mining law requirement that valuable mineral deposits must be found to occupy the land,” Hicks wrote in his March decision.

Both Republicans and Democrats in the US Senate described the ruling as “a significant departure from long-held mining practicesbut mining law experts say the ruling is simply a continuation of the General Mining Act of 1872.

“It’s not really a departure from mining law,” said Mark Squillace, a professor of natural resources law at the University of Colorado. “It’s a long overdue reform of how the federal government has been applying the General Mining Act.”

Under the General Mining Act, anyone who discovers a valuable mineral deposit has the right to develop those claims. However, it is a strict test to prove that a potential mining site contains valuable minerals that can be profitably developed.

Squillace argued that burying public lands under waste rock is a clear indication that those public lands do not contain the economically valuable minerals that would make a mining claim valid.

“It’s hard for me to imagine how anyone could think they have a reasonable chance of making a profit and developing those claims, if they want to bury them under billions of tons of waste rock. So there’s no point in saying those claims were valid,” Squillance said.

“What the Rosemont Court did, and what these other courts have done now, is completely consistent with the way the General Mining Act should have always worked,” he continued.

The Biden administration also acknowledged the legitimacy of the Rosemont decision in a federal advisory from the law firm.

Less space for potentially largest lithium mine in the US

In May, the Ministry of the Interior provided with guidancee to mining developers affected by the decision while “affirming that the Mining Act and relevant Bureau of Land Management regulations do not permit approval of those facilities on federal lands where there is no evidence of mineral discovery.”

But the ruling has had far-reaching implications for Nevada mining sites, including the Thacker Pass lithium mine, which has the potential to become the largest lithium mine in the United States.

Earlier this year, Chief Judge Miranda M. Du ordered federal land managers reexamine a state license allowing Lithium Americas Corp.’s Thacker Pass mine. mine waste can produce and store on more than a thousand acres of public land, citing the recent Rosemont decision.

The judge concluded that BLM violated federal law when it approved Lithium America’s plan to bury 1,300 acres of public land under waste rock without establishing the company’s mining rights to those lands, but it did not waive federal approval of the mine.

A federal evaluation found that approximately 80 acres of federal land claimed by Lithium Americas contained no evidence of mineralization, invalidating that land’s use as a waste dump. The mine operations plan includes approximately 150 hectares for “exploration-related disturbances” within the project area, a significant area of ​​land.

In response, Lithium Americas said they plan to use the mine pit itself as a site for waste rock in a process known as backfill. according to the review.

Under the new leadership of the Ministry of the Interior Lithium Americas also has the option to perform additional work to demonstrate mineralization on land planned for waste rock dumping, or to use mill site claims – whath can be placed on public lands with no valuable minerif — instead of tax claims for the affected areas. Lithium America was given almost unlimited time to come up with a plan action.

But environmental groups claim the Rosemont decision is still in effect for the Thacker Pass lithium mine.

“Basically, the lower court agreed that it’s a Rosemont-related case,” said John Hadder, the director of the Great Basin Resource Watch, which is involved in litigation against both the Thacker Pass lithium mine and the molybdenum case.

Environmentalists have appealed the lithium mine ruling to the 9th Circuit Court in San Francisco, which is expected to hear oral arguments this month.

“What we’re hoping is that the 9th Circuit will say, okay, this is like Rosemont, which we’ve already decided on, so yeah, the permit needs to be vacated,” Hadder said.

“The question is, are those claims valid under mining law? Which means you can make a profit with it? Are they winnable for profit? Obviously, for a pit area, I’m sure the company has valid mining claims. But what about outside the mining area where they deposit millions of tons of material that they would have to excavate later? It goes without saying that you don’t put all that rubble and tailings and so forth where you would mine in the future,” Hadder continued.

Legislators fight

The Rosemont decision has thrown federal lawmakers on the defensive, especially in Nevada, where elected officials are pushing to make the state the center of U.S. lithium production

In April, Democratic Senator Catherine Cortez Masto of Nevada introduced bipartisan legislation that would “undo the damage of this decision,” which she called “misguided.”

The legislation, titled the “Mining Regulatory Clarity Act,” would make it legal to use part of a mining claim for mining-related purposes on land devoid of valuable minerals, including the removal of waste rock.

“Senator Cortez Masto will continue to focus on passing her bipartisan legislation to address Rosemont’s misguided decision and protect the high-paying jobs that support the mining industry in Nevada and across the U.S.,” said Lauren Wodarski, a spokesperson. from Cortez Masto Friday.

Hadder, of the Great Basin Resource Watch, criticized the bill, saying it has the potential to “put directly affected communities, Indigenous communities at enormous risk” by allowing developers to make claims on public lands without proof of valuable minerals.

“The Rosemont decision provides clarity about the correct implementation of the mining law. Basically, these practices referred to by the Cortez Masto have been illegal for many, many years. We’re getting the record straight,” Hadder said.

Not good options

John Lacy, the director of the Global Mining Law Center at the University of Arizona, said he thinks the discussion surrounding the Rosemont decision is “a little overblown.”

Lacy argues, however, that the Rosemont Decree exposed gaps in the archaic General Mining Act of 1872 and that extensive reform of the law is needed to address modern mining challenges.

The General Mining Act of 1872 already permits the use of public lands devoid of valuable minerals for mining-related purposes under the mill site process, Lacy argued.

“One of the problems with mill sites is that they are relatively small, five hectares each. Ultimately, you have to deploy a large number of plant sites in order to use the plant sites for waste disposal and tailings,” Lacy said. “It doesn’t make much sense to shut down 100 factory sites.”

Mill site claims are also not valid until they are actually used in what Lacy calls a classic “chicken or the egg” kind of situation.

The general mining law also allows for land exchanges, but the process requires developers to provide funding to federal land managers so they can purchase land of high conservation or recreational value in exchange for public land destroyed by mining. A land exchange would also require the developer to complete another federal environmental assessment process for the changes to the mining project under the National Environmental Protection Act.

Both options are generally unappealing to developers, Lacy said.

The option to lease land, as proposed by the Biden administration, may prove logistically impossible, Lacy said. Developers might have to pay indefinitely for a land lease, as the dumped waste rock is unlikely to move once the initial lease is up.

“It is not surprising that a law that is 150 years old is not a law we should be applying to deal with public lands.” said Squillance, who also worked as a special assistant for the law firm in 2000. “One way to address all of these issues is to reform the mining law in a major way that will allow Congress and government agencies to address the current issues we have with the way mining is done on our public lands.”

“It’s just a bit shocking that nothing has happened yet to address this issue. It is already time to do that.”

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