I had another flashback today.. as an undergrad at Cal Forestry, I was required to take a forest policy class (teacher was Hank Vaux, for people who remember him) -and two quarters of forest economics, with two quarters of an econ prerequisite, and forest sociology). I remember thinking “what a waste, who cares about the 1872 Mining Act?” And here we are 50 years later, and the 1872 Mining Act is of interest.
My question to legal minds: do forest plans and RMP’s have a nexus with the Mining Act, or does the Forest or BLM unit just do an environmental analysis and decision.. and is “don’t mine there” an alternative in such analyses?
SUWA issued a press statement about some companies filing for mining claims on the recently de-Monumented acres, here’s a link. This is an explanation from Google AI.
- The 60-Day Waiting Period: The presidential proclamation explicitly states that the land is not open for mineral entry or staking claims until 60 days post-announcement. Because Kimmerle Mining filed seven claims on July 14—less than 24 hours after the announcement—legal experts note these initial filings are technically unauthorized and invalid. However, the company can simply refile them once the waiting period expires on September 11. [1, 2, 3, 4, 5]
- No Immediate Right to Mine: Staking a claim only reserves the rights to the underlying minerals against other prospectors. It does not grant permission to dig. Kimmerle Mining must still clear extensive federal environmental reviews and obtain permits from the Bureau of Land Management (BLM) or U.S. Forest Service before any extraction begins. [1, 2, 3, 4]
- Pending Tribal and Environmental Lawsuits: A coalition of tribal nations (including the Hopi, Pueblo of Zuni, and Ute Mountain Ute) represented by the Native American Rights Fund (NARF) alongside groups like Earthjustice are actively suing the administration. They argue the Antiquities Act allows presidents to create monuments but does not grant them the constitutional authority to revoke or shrink them. If the courts rule the monument’s reduction was illegal, all new mining claims will be permanently voided. [1, 2, 3, 4, 5]
Apparently, this also happened the last time the Monument was shrunk.
Easy Peasy Mine: Following the 2017 reduction of Bears Ears National Monument, Kimmerle Mining staked claims and opened the small “Easy Peasy” exploratory mine, excavating roughly 30 tons of ore before operations ceased due to low uranium market prices and the site was reburied. [1, 2]
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This (from Google AI) was also interesting..
Pending Tribal and Environmental Lawsuits: A coalition of tribal nations (including the Hopi, Pueblo of Zuni, and Ute Mountain Ute) represented by the Native American Rights Fund (NARF) alongside groups like Earthjustice are actively suing the administration. They argue the Antiquities Act allows presidents to create monuments but does not grant them the constitutional authority to revoke or shrink them. If the courts rule the monument’s reduction was illegal, all new mining claims will be permanently voided. [1, 2, 3, 4, 5]
This must be the “one-way switch” legal theory.
I’ve previously posted my thoughts on public lands resource extraction, and I think that this discussion is an appropriate place to restate that, and to expand my thoughts. I appreciate the opportunity that Smokey Wire provides for such discussion …
First, I advocate for all resources that are extracted from public lands be reserved for the exclusive use and consumption of American citizens- export prohibited,
Second, no foreign company may extract resources from public lands, only American based entities. And as stated in my first point, these resources may not be sold on world markets, only in the US to benefit our citizens who own the public lands.
Glenn, that makes some sense, but I’d have two concerns..
1. if the mining is for strategic minerals, and there is some nexus to national security, hopefully we might sell some to our allies.
2. Many companies have ownerships including Americans and say, Canadians or Aussies. This makes it more complicated.
3. People are very smart about getting around requirements, think sanctions of various kinds. Not that it might not be a good idea, but who is going to monitor and check shipments that may not be labelled correctly? And would they be successful at enforcing such restrictions?
With respect to the Mining Law and forest plans, BLM governs the federal subsurface (i.e. the minerals) while the FS governs the surface. The FS handbook provisions covering mineral extraction (under numerous laws, including the Mining Law) are here:
https://www.usda.gov/guidance-documents/land-management-plan/fs/forest-service-handbook-190912-20-land-management-planning-handbook at pdf pp 107-110.
Under its Mining Law-related regs (36 CFR Part 228, subpart A) the Forest Service seeks to minimize the adverse effects of mining operations on surface resources, but may not restrict mining activites under the Mining Law to the extent that activity is effectively prohibited. I assume the relevant forest plan might contain direction designed to minmize adverse effects, but plans cannot by themselves prohibit mining activities otherwise allowed under the Mining Law. Note that the Mining Law applies only to certain kinds of minerals (“locatable minerals” such as gold and copper).
CRS has summarized BLM and FS Mining Law regulatory actions in the context of the (in)famous Rosemont Mine here:
https://www.congress.gov/crs-product/R48166#_Toc175671906
As to mining claims, both BLM and FS have challenged them in the past. The Mining Law requires that the claimant provide some evidence of “discovery” of locatable minerals within the claim, something that claimants (especially the trolls) are often unable to do. Stories appear from time to time reporting that people drop mining claims from light planes, scattering them over a given area. Whether these specific stories are true or not, a good number of mining claims are nothing more than the land management equivalent of shooting a deer crossing sign.
Thanks, Rich! I think they are interested in uranium and vanadium that are locatable. So.. do they need a permit to dig around to look for them? Or do they have to be sitting on the surface? How would the BLM or FS know if the material were really from elsewhere? And if there were really no minerals, why would someone want a claim anyway?
They need an exploration permit at some level of surface disturbance. They submit a notice of intent first.
I wouldn’t be surprised if some of the challenges Rich mentioned are cases of fraud using minerals from other locations. (I don’t know what the evidence might be.)
Mining claims are cheap and they used to be able to lead to private ownership of the property. Maybe it’s seen as a small gamble that might lead to that some day.
Yes, forest plans should be able to require mitigation for locatable minerals and I think I’ve seen it done. I think they could even recommend a mineral withdrawal, but it would have to be acted on by BLM under its FLPMA authority or Congress.