Federal Mining Law Update AAPL: March 15-16, 2012 G. Braiden Chadwick, Esq. Downey Brand, LLP
Regulatory Developments
New Regulations & Administrative Actions
Obama Wants Mining Industry to Bank Roll His Spending Spree Despite Congress rejecting a similar proposal for fiscal year 2012, President Obama is again urging the legislature to impose a minimum 5% royalty on hard rock mining revenues Hard rock minerals = locatable minerals (e.g. gold, silver, copper, uranium) Obama s Living Within our Means and Investing in the Future plan calls for: Certain hard rock minerals to be leased under the Mineral Leasing Act, rather than subject to location under the Mining Law of 1872 Revenue to pay for jobs bill and deficit reduction plan
Obama and Salazar Halt Uranium Mining Near Grand Canyon Interior Secretary Ken Salazar used FLPMA to withdraw 1 million acres of land near the Grand Canyon from uranium mining The withdrawal is effective for 20 years No effect on valid existing rights Land is supposedly open to other types of mineral or geothermal leasing
Salazar Backs Off of Wild Lands Policy Secretary Salazar s Wild Lands Policy is a means for BLM to unilaterally (and some would argue unconstitutionally) create de facto Wilderness Areas BLM managers required to identify land with wilderness characteristics and preserve land in that state this would negatively impact mining and oil/gas exploration Congressional republicans used spending bill to strip Interior Department of funds necessary to carry out the policy State of Utah is pursuing lawsuit to kill the policy
I m on a Roll!
Salazar Tells Congress to Designate More Wilderness On November 10, 2011, Secretary Salazar submitted a list to Congress titled BLM Lands Deserving Protection 18 properties in western states Goal is for Congress to designate the properties as wilderness List is not exhaustive Salazar/Obama could push for even more wilderness The List itself has NO legal effect only Congress may designate wilderness.
BLM Wants to Kick Miners out of Green Energy Rights of Way
Green Energy Priority (cont.) BLM is taking steps to preserve land for green energy rights of way Part of Obama s plan to expedite wind and solar leases on public land Extension of 2-year Bush Administration withdrawal (nearly 700,000 acres) Salazar wants long-term withdrawal Isolation of specific tracts of BLM land from mining claims
Forest Service Planning Rule Could Have Major Impact On Mining Industry In February 2011, the U.S. Dept. of Agriculture a released proposed planning rule that would govern resource management on all Forest System lands (Final Programmatic EIS, APP. I, Modified Alternative A, 219.8(a)) House Republicans believe that by requiring managers to consider broad definition of ecological sustainability, any environmentally impactful commercial use could be prohibited U.S. Dept of Agriculture expects to make final decision this month
EPA Hard Rock Mining Bonds EPA is preparing regulations requiring hard rock mining bonds under the Comprehensive Environmental Response Compensation and Liability Act of 1980 ( CERCLA ). The proposed bonds will be for catastrophic accidents at hard rock mines.
Merger of OSM and BLM Delayed Indefinitely In October 2011, Secretary Salazar took first steps to merge Office of Surface Mining with BLM Original plan was for March 2012 merger After opposition from both the left and right, Salazar issued a secretarial order (#3316) instructing his underlings to delay work on the merger Major Criticisms of Merger: (1) would jeopardize nation s access to coal and (2) Obama Administration lacks legal authority to merge the agencies A new target date for the merger has not been announced
New Legislation
Legislation Seeks to Limit Antiquities Act Antiquities Act allows the President to make withdrawals of public lands Leaked Obama Administration memo shows President sought to circumvent Congress and make substantial (and targeted) withdrawals using the Act (10 million acres) Republicans responded with wave of legislation (pending) Amendments that would require Congressional permission before President could designate monuments HR 817 (entire US); HR 845 (in Montana); HR 846 (in Idaho); HR 2147 (in Utah) Amendment that would require President to confine withdrawal to smallest area possible: S 407 Amendment that would require consent of state legislatures prior to withdrawal within a given state: HR 302
Alaskans protest a Jimmy Carter Antiquities Act withdrawal (1978)
Legislators Attack Wildlands Policy Representative Kevin McCarthy (R-CA) and Senator John Barrasso (R-WY) introduced the Roadless Area Release Act of 2011 (HR 1581/ S 1087) Prevents Interior Department (including BLM) from identifying land with wilderness characteristics so that it may be managed as wild land by the BLM Republicans used a rider to a spending bill to prevent implementation of the policy during 2011 P.L. 12-10 of April 15 Sen. Barrasso Rep. McCarthy
Bipartisan Attempts to Expand Wilderness Areas
Wilderness Withdrawal Bills introduced in 2011 to withdraw land for wilderness, monument, and other purposes include: 9 million acres of land in southern Utah as wilderness HR 1916 (Rep. Hinchey, D-NY)/ S 979 (Sen. Durbin, D-IL) 1.6 million acres in southern California as a monument and wilderness S 138 (Sen. Feinstein, D-CA) 1.4 million acres added to Arctic National Wildlife Preservation System HR 139 (Rep. Markey, D-MA)/ S 33 (Sen. Lieberman, I-CN)
Wilderness Withdrawal (cont.) 13,000 acres in San Diego County, CA as a monument and wilderness HR 41 (Rep. Issa, R-CA)/ S 1574 (Sen. Boxer, D-CA) 700,000 acres in Colorado as Wilderness HR 2420 (Rep. DeGette, D-CO) 22,000 acres of in Washington as wild and/or scenic river corridor HR 608 (Rep. Reichert, R-WA)/ S 322 (Sen. Murray, D-WA) 30,000 acres in Oregon as wild and/or scenic river corridor HR 1413 (Rep. DeFazio, D-OR)/ S 733 (Sen. Wyden, D-OR) 236,000 acre conservation area in New Mexico HR 1241 (Rep. Lujan, D-NM)/ S 667 (Sen. Bingaman, D-NM)
Wilderness Withdrawal (cont.) 300,000 acres of special management areas on Forest Service and wilderness lands in Montana S 268 (Sen. Tester, D-MT) 300,000 acres near Glacier National Park (Montana) from all forms of mining and geothermal leasing S 233 (Sen. Tester, D-MT)
Legislative Attempts to Help the Mining Industry Critical Minerals Policy Act of 2011 (S 1113), introduced by Senator Murkowski (R-AK) requires federal agencies to expedite permitting for critical minerals HR 2011, introduced by Rep. Doug Lamborn (R-CO) requires Dept. of Interior to report on permitting delays
S 303, sponsored by Senator Murkowski extends a 60-day grace period for small miner maintenance fee waiver not just to miners who file a timely, yet faulty application, but to miners who fail to file an application S 1844, sponsored by Senator Dean Heller (R-NV) requires the Interior Department to complete Federal Register notices within 45 days of receiving notice from state BLM offices. Failure to do so results in approval of the notice.
Case Law
Roadless Rule Saga Continues 2008: Wyoming district court invalidates Clinton Roadless Rule, which contradicts 9 th Circuit decision upholding the rule 2011: 10 th Circuit reverses Wyoming district court Wyoming has decided to appeal to the US Supreme Court
and Continues Legislative proposal to reverse the courts (and the Clinton Roadless Rule) HR 1581[Representative Kevin McCarthy (R- Calif.)] and S 1087 [Senator John Barrasso (R-WY)] Legislative proposal supporting the Clinton Roadless Rule HR 3465 [Representative Jay Inslee (D-WA)] and S 1891 [Senator Maria Cantwell (D-WA)]
USFWS Finally Gives Up Settlement in CBD/Wildlife lawsuit over petitions to lists hundreds of species as endangered or threatened USFWS has agreed to review petitions for listing USFWS has six years to review whether the species listed on the 2010 Candidate Notice of Review (2010 CNOR) In exchange, the environmental groups agreed to at least temporarily slow the pace of lawsuits
The Wilderness Society v. United States Forest Service 9 th Circuit relaxes standards for defendants intervening in lawsuits Practical effect: mining and industry groups could join (and help defend) lawsuits brought by environmentalists, NIMBYs, and other malcontents
IBLA: Art Anderson When is the deadline for paying annual maintenance fees and filing small miner s waivers? IBLA s answer: No later than August 31 of each year What if you re late?... Automatic forfeiture!
Late Breaking News: IBLA: Art Anderson (on reconsideration) IBLA reverses previous decision on August 31 deadline We agree that maintenance fees or waiver certifications filed during BLM s regular business hours on September 1 have been and continue to be timely