[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. 2925, H.R. 6862, H.R. 7003,
AND H.R. 7004
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
Wednesday, January 31, 2024
__________
Serial No. 118-93
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
or
Committee address: http://naturalresources.house.gov
------
U.S. GOVERNMENT PUBLISHING OFFICE
54-709 PDF WASHINGTON : 2024
COMMITTEE ON NATURAL RESOURCES
BRUCE WESTERMAN, AR, Chairman
DOUG LAMBORN, CO, Vice Chairman
RAUL M. GRIJALVA, AZ, Ranking Member
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
Tom McClintock, CA CNMI
Paul Gosar, AZ Jared Huffman, CA
Garret Graves, LA Ruben Gallego, AZ
Aumua Amata C. Radewagen, AS Joe Neguse, CO
Doug LaMalfa, CA Mike Levin, CA
Daniel Webster, FL Katie Porter, CA
Jenniffer Gonzalez-Colon, PR Teresa Leger Fernandez, NM
Russ Fulcher, ID Melanie A. Stansbury, NM
Pete Stauber, MN Mary Sattler Peltola, AK
John R. Curtis, UT Alexandria Ocasio-Cortez, NY
Tom Tiffany, WI Kevin Mullin, CA
Jerry Carl, AL Val T. Hoyle, OR
Matt Rosendale, MT Sydney Kamlager-Dove, CA
Lauren Boebert, CO Seth Magaziner, RI
Cliff Bentz, OR Nydia M. Velazquez, NY
Jen Kiggans, VA Ed Case, HI
Jim Moylan, GU Debbie Dingell, MI
Wesley P. Hunt, TX Susie Lee, NV
Mike Collins, GA
Anna Paulina Luna, FL
John Duarte, CA
Harriet M. Hageman, WY
Vivian Moeglein, Staff Director
Tom Connally, Chief Counsel
Lora Snyder, Democratic Staff Director
http://naturalresources.house.gov
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
PETE STAUBER, MN, Chairman
WESLEY P. HUNT, TX, Vice Chair
ALEXANDRIA OCASIO-CORTEZ, NY, Ranking Member
Doug Lamborn, CO Jared Huffman, CA
Robert J. Wittman, VA Kevin Mullin, CA
Paul Gosar, AZ Sydney Kamlager-Dove, CA
Garret Graves, LA Seth Magaziner, RI
Daniel Webster, FL Nydia M. Velazquez, NY
Russ Fulcher, ID Debbie Dingell, MI
John R. Curtis, UT Raul M. Grijalva, AZ
Tom Tiffany, WI Grace F. Napolitano, CA
Matt Rosendale, MT Susie Lee, NV
Lauren Boebert, CO Vacancy
Wesley P. Hunt, TX Vacancy
Mike Collins, GA
John Duarte, CA
Bruce Westerman, AR, ex officio
------
CONTENTS
----------
Page
Hearing held on Wednesday, January 31, 2024...................... 1
Statement of Members:
Stauber, Hon. Pete, a Representative in Congress from the
State of Minnesota......................................... 2
Ocasio-Cortez, Hon. Alexandria, a Representative in Congress
from the State of New York................................. 3
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 5
Panel I:
Lamborn, Hon. Doug, a Representative in Congress from the
State of Colorado, prepared statement of................... 6
Curtis, Hon. John R., a Representative in Congress from the
State of Utah.............................................. 7
Amodei, Hon. Mark E., a Representative in Congress from the
State of Nevada............................................ 8
DelBene, Hon. Suzan K., a Representative in Congress from the
State of Washington........................................ 9
Statement of Witnesses:
Panel II:
Feldgus, Steven, Principal Deputy Assistant Secretary, Land
and Minerals Management, Department of the Interior,
Washington, DC............................................. 26
Prepared statement of.................................... 27
Questions submitted for the record....................... 29
Haddock, Rich, Senior Advisor, Barrick Gold Corporation,
Bountiful, Utah............................................ 29
Prepared statement of.................................... 31
Questions submitted for the record....................... 42
Mueller, Craig, President and CEO, American Gilsonite
Company, Houston, Texas.................................... 49
Prepared statement of.................................... 50
Stiffarm, Jeffrey, President, Fort Belknap Indian Community,
Harlem, Montana............................................ 51
Prepared statement of.................................... 53
Metesh, John J., President, Association of American State
Geologists, Butte, Montana................................. 62
Prepared statement of.................................... 63
Questions submitted for the record....................... 64
Additional Materials Submitted for the Record:
Submissions for the Record by Representative Stauber
National Mining Association, Statement for the Record on
H.R. 2925 and H.R. 6862................................ 79
American Exploration & Mining Association (AEMA), Letter
to the Committee on H.R. 2925 and H.R. 6862............ 87
National Mining Association and Zero Emission
Transportation Association, Letter to Congress on H.R.
4821................................................... 91
Advanced Energy United, Statement for the Record on H.R.
2925................................................... 92
National Infrastructure Alliance, Letter to the Federal
Permitting Improvement Steering Council................ 93
United States Senate, Letter to the Federal Permitting
Improvement Steering Council........................... 94
Kyrsten Sinema, U.S. Senator, Letter to the Federal
Permitting Improvement Steering Council................ 96
U.S. Chamber of Commerce, Letter to the Committee on H.R.
2925................................................... 97
Submissions for the Record by Representative Grijalva
Patagonia Area Resource Alliance, Letter to the Committee 78
Western Shoshone Defense Project, Letter to the Committee 98
National Parks Conservation Association, Statement for
the Record............................................. 100
Orutsararmiut Native Council, Letter to Congress......... 102
Pima County Resolution No. 2023-12....................... 103
Pyramid Lake Paiute Tribe, Letter to Congress............ 105
San Xavier District of the Tohono O'Odham Nation, Letter
to Congress............................................ 106
Multiple conservation organizations, Opposition Letter on
Mining Regulatory Clarity Act.......................... 107
City of Tucson Resolution 23626.......................... 110
Multiple Advocates, Letter to the Committee.............. 112
Hualapai Tribe Office of the Chairperson, Letter to
Congress............................................... 114
Hunting/fishing Community, Letter to the Committee....... 115
Multiple law professors, Letter to the Committee......... 117
Submissions for the Record by Representative DelBene
Washington State Department of Natural Resources,
Statement for the Record on H.R. 7003.................. 11
Snohomish County Executive's Office, Statement for the
Record on H.R. 7003.................................... 16
Board of Cowlitz County Commissioners, Letter to the
Committee on H.R. 7003................................. 19
LEGISLATIVE HEARING ON H.R. 2925, TO
AMEND THE OMNIBUS BUDGET RECONCILI-
ATION ACT OF 1993 TO PROVIDE FOR SECU-
RITY OF TENURE FOR USE OF MINING
CLAIMS FOR ANCILLARY ACTIVITIES, AND
FOR OTHER PURPOSES, ``MINING REGU-
LATORY CLARITY ACT OF 2023''; H.R. 6862,
TO AMEND THE FAST ACT TO INCLUDE
CERTAIN MINERAL PRODUCTION ACTIVI-
TIES AS A COVERED PROJECT, AND FOR
OTHER PURPOSES; H.R. 7003, TO AMEND
THE NATIONAL LANDSLIDE PREPAREDNESS
ACT TO REAUTHORIZE SUCH ACT,
``NATIONAL LANDSLIDE PREPAREDNESS
ACT REAUTHORIZATION ACT OF 2024''; AND
H.R. 7004, TO AMEND THE MINERAL
LEASING ACT TO AMEND REFERENCES OF
GILSONITE TO ASPHALTITE
----------
Wednesday, January 31, 2024
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Natural Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 2:13 p.m. in
Room 1324, Longworth House Office Building, Hon. Pete Stauber
[Chairman of the Subcommittee] presiding.
Present: Representatives Stauber, Gosar, Graves, Fulcher,
Curtis, Tiffany; Ocasio-Cortez, Kamlager-Dove, and Grijalva.
Also present: Representative Amodei; and DelBene.
Mr. Stauber. The Subcommittee on Energy and Mineral
Resources will come to order.
Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
Under Committee Rule 4(f), any oral opening statements at
hearings are limited to the Chairman and the Ranking Minority
Member.
I ask unanimous consent that the gentleman from Nevada, Mr.
Amodei, and the gentlewoman from Washington, Ms. DelBene, be
allowed to participate in today's hearing.
Without objection, so ordered.
I now recognize myself for an opening statement.
STATEMENT OF THE HON. PETE STAUBER, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF MINNESOTA
Mr. Stauber. Today, the Subcommittee on Energy and Mineral
Resources will consider legislation that would ensure access to
domestic mineral resources and support scientific research that
will help us prepare and respond to natural hazards, including
landslides. H.R. 2925, the bipartisan and bicameral Mining
Regulatory Clarity Act sponsored by Representative Amodei,
would restore long-standing interpretation of the Mining Law of
1872 and agency regulations governing hardrock mining policy on
Federal lands.
In May 2022, the U.S. Court of Appeals for the Ninth
Circuit affirmed a lower court's decision revoking an approved
mine plan for the Rosemont Copper Mine Project, which is
commonly referred to as the Rosemont decision. This decision
limits the ability of the Forest Service to approve mining
support facilities necessary for mining operations, impacting
future mining projects across the country.
A mining claim is established by the payment of location
fees and claim maintenance fees by an operator to the
Department of the Interior. If an operator remains in good
standing and continues to pay these fees, they are entitled to
use the land within their claim for all proper mining-related
purposes, including exploration, building access roads, and
constructing office facilities, which are known as ancillary
use activities.
Notably, nothing in this bill exempts mining activities
from environmental review or other approvals necessary under
the law. It simply affirms the right of the operator to perform
all the activities needed to make a valid discovery.
As said by former DOI Solicitor Jorjani, ``Requiring the
discovery of a valuable mineral deposit before allowing any
reasonably incident mining uses, including the removal of any
minerals, puts the cart before the horse, since such uses and
removal are necessary to make a discovery.'' So, think about
it. If a mineral deposit needs to be found before exploration
can take place, then how could minerals ever actually be
discovered?
The Rosemont decision changed 40 years of mining regulation
and over a century of interpretation of the mining law, and
threatens new domestic mining projects on Federal lands. H.R.
2925 will correct this and codify long-standing policy, and
provide the regulatory certainty needed for domestic mining
projects to move forward.
H.R. 6862, sponsored by Representative Lamborn, would
ensure that all hardrock mineral projects remain eligible for
the streamlining benefits of the FAST-41 permitting dashboard.
The Biden administration's recent proposal to allow only
critical mineral projects to be placed on the permitting
dashboard would exclude important domestic mining projects that
are necessary for our modern economy, along with achieving this
Administration's renewable energy goals.
For example, copper is not currently listed as a critical
mineral, yet copper is essential for construction, renewable
energy, and electric transmission. The permitting process for
mining projects in the United States currently takes roughly 10
years or even more. Meanwhile, demand for products of copper is
skyrocketing, underscoring the need for streamlining the
permitting process.
H.R. 6862 would ensure that projects aimed at producing all
the hardrock minerals our country desperately needs would be
eligible for the streamlining benefits of the FAST-41 process
going forward, and would ultimately lessen our dependence on
foreign adversarial nations for our mineral supplies.
H.R. 7004, sponsored by Representative Curtis, would amend
the Mineral Leasing Act in each place that ``gilsonite'' is
mentioned, to replace it with the appropriate generic terms,
``asphaltite.'' Gilsonite is a unique mineral that is produced
on Federal lands in Utah. While the term ``Gilsonite'' has been
trademarked since 1895, the use of the term in the Mineral
Leasing Act has caused confusion in the marketplace by
suggesting it is a generalized term for all forms of
asphaltite. This has created challenges for American producers
of Gilsonite, as reports of foreign producers of inferior
products falsely labeling their products as Gilsonite have
surfaced.
Finally, H.R. 7003, the National Landslide Preparedness Act
Reauthorization Act of 2024, a bipartisan bill sponsored by
Representative DelBene, would reauthorize the National
Landslide Preparedness Act for Fiscal Years 2024 through 2028.
Landslide hazards are a threat to communities across the
United States. And, notably, communities in the states of
Washington and Alaska have experienced these devastating
hazards firsthand in recent years. This bill would extend the
National Landslide Hazard Reduction Program and the 3D
Elevation Program, which are aimed at gathering and sharing
data that will enable states and communities to reduce loss
during the event of a landslide.
I thank the sponsors of these important bills for their
work on these efforts, and I look forward to the testimony from
our invited witnesses today.
I will now recognize the Ranking Member, Representative
Ocasio-Cortez, for her opening statement.
STATEMENT OF THE HON. ALEXANDRIA OCASIO-CORTEZ, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW
YORK
Ms. Ocasio-Cortez. Thank you, Chairman.
In this Committee, we often hear calls for an increase in
domestic mining to fuel the clean energy transition. But as we
move to the clean energy future, we must be sure to prevent the
injustices of the past. Unfortunately, under our 150-year-old
mining law, we are bound to do just that. And that is correct.
Today's mining industry operates under a Federal law signed
into effect more than 150 years ago.
The mining law gives the mining industry rights over public
lands that any other industry would dream of. All other public
land users and industries, oil and gas, ranchers, conservation,
renewable energy, all go through a public planning process to
make sure land use is fairly balanced. All other land users
have to pay fair market value for the use of public land and
oil, gas, and coal. They all pay a royalty back to the public,
back to the taxpayers for the extraction of these public
resources.
The mining industry, however, sits above all of that.
Today, anyone can go out on open public lands, drive four
stakes in the ground, and claim that land as their own, as long
as they can prove there are minerals there to mine. The 1872
Mining Law gives that miner the exclusive right to that land.
The government cannot say no, even if it is the perfect site
for renewable energy, or if it is the only habitat for an
endangered species. Tribes can't say no, no matter how sacred
the landscape. This imbalance of power has resulted in over a
century of ongoing toxic mines, scarring our landscape and
poisoning our communities.
There is only one frail guardrail on which someone can
stake a mining claim and claim all the rights to that public
land. The 1872 Mining Law says a claim is only valid if it
contains valuable minerals. That is, it is only valid if there
is actually something there to mine. One of the bills on the
agenda today, the Mining Regulatory Clarity Act, would strip
that only guardrail away.
Under this bill, any mining claim would automatically be
valid if the claimant pays a laughably small fee of $10 per
acre per year, no matter the validity of the mining claim. You
are hearing that correctly. Any American, or notably, any
American subsidiary of a foreign company could have the
exclusive rights to our public lands for about $10 per acre per
year. Anyone who pays those nominal fees has the right to, and
I quote, ``occupy, use, and conduct operations'' on their
mining claims, no conditions, no exceptions. This law would
apply to all of our public lands, including national parks,
wilderness areas, and BLM land.
The mining industry claims this is just a minor tweak to
existing laws to correct legal uncertainty, but the unintended
consequences of this change would upend our public lands
management. It would give away our public lands not even to the
highest bidder, but to the fastest claimer. We don't have to
imagine the chaos that this could create. We just have to look
at the history of the mining law and all the ways bad actors
have tried to exploit and misuse mining claims.
Today, over 1,100 mining claims remain active in our
national parks, with their claim fees paid but without having
been tested yet for a valuable mineral. Under this bill, all
1,100 claims in our national parks would become automatically
valid. Anyone could conduct any ``mining-related operations''
on any of these one 1,100 claims. Someone could permanently
bury part of Zion National Park in toxic mining waste. Someone
else could use a claim on part of a trail into the Grand Canyon
to deny access to their ``prospecting site'' unless hikers paid
an access fee. And what a gift this bill would be to any Wall
Street speculator trying to make a quick buck off our public
lands.
Under this bill there would be no way to invalidate those
speculative or potentially predatory claims. Any big-money bad
actor could blanket our public lands in thousands of
untouchable mining claims, and force any other public lands
user to buy them out to build an energy transmission line, or a
trail, or a renewable energy project.
This bill is not just a give-away to the mining industry.
It is a wholesale giveaway of our public lands.
With that, I yield back.
Mr. Stauber. Thank you very much. I will now recognize the
Ranking Member of the Full Committee, Mr. Grijalva, for 5
minutes for his opening statement.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENT-
ATIVE IN CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you very much, Mr. Chairman, and thank
you for allowing me this opportunity.
[Chart.]
Mr. Grijalva. We stand at the edge of a whole new mining
rush. And although times have changed dramatically since the
first gold rush of the 1800s, sadly, the Mining Law of 1872 has
not, and neither has the mining industry's destruction.
When we think of the gold rush, we often conjure up these
Norman Rockwell-like images of a pick and shovel, miners and
their trusty donkey, or people peacefully panning for gold in a
stream. But the reality is that mining in the United States has
always been toxic and, in many instances, deadly. In the first
decades of the gold rush, industrial mining financed by large
mining corporations blasted away entire mountainsides. Many of
these mine sites are still abandoned and unclaimed today,
leaching toxic mercury into the watersheds.
The fees to stake mining claims were dirt cheap even then.
After all, it was the people who lived on those lands that paid
the real price. Indigenous people who had lived in the West
since time immemorial were systematically driven from their
lands, eliminated, and enslaved. Settlers committed atrocities
with the explicit encouragement and funding of the state
governments and the help of the U.S. Army. We cannot ignore the
history, and we cannot ignore this context.
The mining law empowered land grabs. Any American citizen
could stake a claim on open public lands and have exclusive
rights to the land and its minerals. People in power knew
exactly what to do to secure these rights. The Daily Alta
California newspaper wrote in 1849, ``Whites are becoming
impressed with the belief that it will be absolutely necessary
to exterminate the savages before we can labor much longer in
our mines with security.'' This is our history. This is the
foundation of the Mining Law of 1872. Dispossession of
Indigenous homelands was a feature, not a flaw.
The mining law endorsed colonial greed, environmental
destruction, and the disregard for human life, all in the name
of profit. Over the past 150 years, regulators have tried to
rein in the worst excesses of this mining law through a
patchwork of other laws. But the heart of the mining law,
mining, above all else, remains unchanged. We cannot have
meaningful tribal consultations as long as the mining industry
has the automatic right to mine wherever they stake a claim. We
cannot deny a mine on public lands, even if it would cause
irreparable harm to the environment or sacred sites. This is
unacceptable, and it should not be the basis for modern mining.
Unfortunately, the bills we are hearing today do nothing to
address these flaws. They only make them cut even deeper. We
need mining reform that gives the American people the freedom
to choose, to be able to say yes or no to a particular mine at
a particular site. We need mining reform that puts mining on
equal footing with the public interest. Only then can we truly
create a modern, sustainable mining industry. My bill, the
Clean Energy Mineral Reform Act, would do just that. But H.R.
2925 and H.R. 6862 take us in the opposite direction.
With that, Mr. Chairman, I yield back.
Mr. Stauber. Thank you very much. We will now begin our
Member panel who will speak on their legislation.
Mr. Lamborn cannot make it today, so without objection I
would like to submit his comments for the record.
[The prepared statement of Mr. Lamborn follows:]
Prepared Statement of the Hon. Doug Lamborn, a Representative in
Congress from the State of Colorado
Thank you, Chairman Stauber. Today, we will hear testimony on my
bill to ensure that all mining projects receive consideration under the
Fixing America's Surface Transportation Act. Title 41 of this act,
known as FAST-41, grants numerous departments with NEPA authority the
ability to speed up the permitting process for infrastructure projects
subject to the National Environmental Policy Act (NEPA) process. The
entire reason that Congress passed this law in the first place was to
improve consultation and coordination among government
agencies during permitting;
increase transparency by publicizing completion dates,
timetables, authorizations and environmental reviews for
all federal agencies with authority over these projects;
and most importantly, get shovels in the ground for
critical infrastructure projects more quickly and within a
reasonable budget.
In 2021, hard rock mineral mining was added as a covered sector
under FAST-41 Because it is so crucial to numerous emerging industries
and is necessary to maintain our standard of living, safety, and
technological superiority. Hardrock mining is crucial for items like
copper, which is necessary to build out the transmission and
distribution projects Americans will soon rely. We also need it for
steel and iron, which builds everything from skyscrapers to cars,
bridges to airplanes. Lastly, hardrock minerals are the basis for which
critical minerals are mined. Critical minerals are produced as a
byproduct of another, more common, host mineral and are necessary for
even the Biden administration's lofty goals surrounding EV's and
renewable energy buildouts.
It is strange then that, in September 2023, the Biden
administration proposed a new rule regarding FAST-41 coverage. The
rule, titled Revising Scope of the Mining Sector of Projects That Are
Eligible for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act,\1\ redefines the covered mining sector so as to
only cover critical mineral-based mining projects. The administration
insists that this will prioritize critical mineral supply chain
projects and will improve timeliness, but we know it for what it is:
the Biden administration is overreaching in their quest to pursue a
radical climate agenda by arbitrarily choosing winners and losers. The
Biden administration relies heavily on the products that come from
these mines, which makes their decision to shut down mines, such as the
Twin Metals Copper Mine in Minnesota, and now the decision to remove
mining from FAST-41 consideration, so puzzling.
---------------------------------------------------------------------------
\1\ https://www.federalregister.gov/documents/2023/09/22/2023-
20270/revising-scope-of-the-mining-sector-of-projects-that-are-
eligible-for-coverage-under-title-941-of-the
---------------------------------------------------------------------------
Aside from the administration's focus on their climate agenda, I am
also concerned about continuing to cede leadership in global mining to
the Chinese. China has a chokehold on the mining and refining industry,
so slowing down the permitting process, will furth seeding control of
supply chains to our geopolitical rival.
``Critical minerals'' are defined by the United States Geological
Survey and are redefined every 3 years. Companies beginning the lengthy
permitting and siting process may find that the mineral they have
targeted has been removed from the USGS list within the time frame that
it took them to apply for the permit in the first placing, wasting
millions of dollars and stifling investment.
If we want American mining to flourish, we must compete on a level
playing field without the heavy hand of the federal government choosing
who wins. Needlessly allowing the Chinese government to continue
dominating the mining industry Will only hurt global stability in the
long run.
My bill returns hardrock mining to its original covered status
under FAST-41 so that we may continue to expedite all mining projects
across the U.S., ensuring domestic reliability and continued growth.
I urge all my colleagues to support this bill and look forward to
hearing the testimony of the witnesses today on this important bill.
______
Mr. Stauber. With that being said, we will begin with Mr.
Curtis from Utah's 3rd Congressional District for his testimony
on his bill.
Mr. Curtis.
STATEMENT OF THE HON. JOHN R. CURTIS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH
Mr. Curtis. Thank you. I am incredibly proud of Utah's
mining industry, as opposed to what you might have heard so far
in this meeting.
As a matter of fact, Mr. Ranking Member, I am sorry you
took that poster down. That is actually my district, and I am
curious if you know what the closest Ferris Wheel is to Zion
National Park. There are none within hundreds of miles.
I am curious if you know the closest skyscraper to Zion
National Park. That would be Las Vegas.
And I just think it is disingenuous to show a poster like
that that has no representation of the actual location, and I
would love to have you and any Member from this Committee,
actually, to Zion's National Park to talk about these issues in
a realistic way that really can be productive and get something
done.
I would like to talk a little bit about my bill, the
Mineral Leasing Act, that changed gilsonite references to
asphaltite. It gets a little bit into the weeds, but let me
just explain quickly. Gilsonite, with a capital G, is currently
only found in the Uintah Basin. The term Gilsonite, capital G,
was trademarked in the late 1800s. Because gilsonite, lowercase
g, was used as a term in the Mineral Leasing Act, adversaries
like Iran are using it to sell an inferior product under the
same name. The Mineral Leasing Act needs to be updated to
ensure this critical mineral is produced in the United States,
as opposed to similar but inferior products from our
adversaries.
Additionally, I know Utahns mine more sustainably than
anywhere else in the world. We should be proud of our resources
and the ability to share them with the world in a responsible
way. Moving forward, we need minerals, and we have to make a
decision if we want these minerals to come from conditions that
we can control and regulate, that are done responsibly, or do
we want them to come from our adversaries like China, Iran, and
shell companies.
I don't have an opportunity to introduce questions right
now, but I am pleased that all the witnesses are here. But Mr.
Mueller, I am especially grateful that you are here and look
forward to your comments later on.
With that, Mr. Chairman, I yield my time.
Mr. Stauber. Thank you very much, Representative Curtis. We
will now recognize Mr. Amodei from Nevada's 2nd Congressional
District for his testimony on his bill.
Mr. Amodei.
STATEMENT OF THE HON. MARK E. AMODEI, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF NEVADA
Mr. Amodei. Thank you, Mr. Chairman, for your indulgence,
and please pass that on to the Ranking Member of the
Subcommittee. And good afternoon, Mr. Ranking Member of the
Committee as a whole.
I guess when it is your story, you can tell it however you
want. And it is America, and it is anybody's right to do that,
and that is fine. But I do want to point out a couple of things
about H.R. 2925 since we are talking about history and more
recent history. That decision, which was applied to the Forest
Service, basically overturned multiple decades, nearly a half a
century of what was recognized in terms of what it did to
pursue a mining claim.
Now, when I say pursue a mining claim, that is not in a
vacuum. Nobody has repealed NEPA, nobody is trying to repeal
NEPA. Nobody is trying to wipe out cultural resources. Nobody
is trying to wipe out all the myriad of steps that Federal land
managers have to go through before they give somebody in modern
mining America the ability to go try to extract minerals for a
commercially viable purpose. You go through all those NEPA
steps, which I haven't heard a peep about yet, which H.R. 2925
does nothing to change.
And not that anything is perfect, and not that things don't
evolve as they are required to, but historical practices from
50 years ago or 150 years ago aren't what they are now.
And it is interesting to hear how the Mining Law of 1872,
which anybody that can add goes, that is a long time, maybe we
ought to update that. Absolutely we should, but it should be a
collaborative thing, which has been an absolute impossibility
for this Congress to achieve, at least in the time I have been
around and before that. So, it is always interesting to hear it
is terrible, and you shouldn't be able to do it, but oh, we
need more money when you are going to do it. It makes you
wonder where the priorities are, and just exactly what the No.
1 one is. Well, if we give you more money is it OK, or is it
more OK, or what is it? It is like we need to be consistent.
Of course, it needs to be updated. It is 1872. But to try
to bring what the cultural realities were of post-Civil War
America into the present like it is something that the mining
companies did is like, because I have news for you. It is not
in a vacuum.
I am very proud of my state's Department of Environmental
Protection record on how they go about permitting things,
requiring mitigation, all those sorts of things, working in
conjunction with Federal land managers for the Bureau of Land
Management and the Forest Service. Nothing in H.R. 2925 goes,
hey, that stuff you have been doing for 40 years, you don't
have to do it anymore. Of course, you have to keep doing it.
So, let's just say what it is. No disrespect to the Ninth
Circuit Court of Appeals, which applies in Nevada, but if you
can't beat them head on and you can't beat them through the
right side, maybe you come through the left side. Let's just be
honest, nobody will say, ``We think we have a viable mineral,
but we have to go raise capital for that before you can really
prove it.''
And by the way, if you need a place for waste rock or you
need a place for a processing site, whether that is a leach
pad, or a mill site, or whatever, that is all in the approval.
And nothing in this, in case somebody wants to say this, I defy
you to find in the four pages of this language which says,
``Oh, by the way, we can have our way with wilderness areas,
that doesn't apply anymore, we have just repealed NEPA for
wilderness areas.'' That is just one example, but let your
conscience be your guide.
So, I will say this. And by the way, it is curious that at
a time when this Administration is giving billions of dollars
to lithium mining companies in Nevada to do what all mining
companies have done for the last 40 years, we have to sit here
and go, oh well, this Rosemont thing, this is an attack on
truth and justice somehow.
I mean no disrespect. It is not my intent to impugn or
offend.
And by the way, H.R. 2925's companion bill is a bipartisan
bill by a Senator from Idaho and a Senator from Nevada and, as
well as this bill, has bipartisan support. You look at the
history of this, this language has been in legislation that 10
months ago passed the Floor of the House the 225 votes. But I
guess maybe somebody tricked somebody, and there were secrets
in there. I don't think there were.
So, all I would say is this, Mr. Chairman, Madam Ranking
Member, and Mr. Committee Ranking Member is, I get it. I mean
everybody has their political agendas, and that is just the way
it is today. But let's talk about reality in this four-page
bill. Let's talk about reality about modern mining in America.
And let's do the right thing to restore some stability if you
are really into, we need to responsibly exploit those resources
which are available in our country which keep us from having to
go overseas to do other stuff.
And with that, thank you for your generosity, Mr. Chairman,
I yield back.
Mr. Stauber. Thank you very much. I will now recognize Ms.
DelBene from Washington's 1st Congressional District for her
testimony on her bill.
STATEMENT OF THE HON. SUZAN K. DelBENE, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF WASHINGTON
Ms. DelBene. Thank you. I want to thank the Chairman and
Ranking Member for holding this important hearing and inviting
me to provide testimony on H.R. 7003, my legislation to
reauthorize the National Landslide Preparedness Act.
Landslides kill 20 to 50 people and cause between $1.6 and
$3.2 billion in damage each year. And, unfortunately, this is a
reality that folks back in my district know all too well.
Nearly 10 years ago, Washington State experienced one of its
worst natural disasters. In a matter of seconds a tragic
landslide near Oso, Washington killed 43 people, destroyed over
40 homes, and severely damaged public infrastructure and
private property. That day forever changed the people of Oso,
of Darrington, Arlington, and the Stillaguamish and Sauk-
Suiattle Tribes, and they are still living with its scars
today.
I remember going to Oso right after the disaster to support
the community and families who had lost loved ones and their
homes. Our first responders were the true heroes that day. They
spent countless hours trying to save lives and recover loved
ones. These were some of the most heartbreaking days of my time
in Congress to see so much devastation in this close-knit
community.
Following that landslide and that tragedy, I introduced in
2016 the National Landslide Preparedness Act. As the Oso
landslide demonstrated, simply sending aid after a tragic
national disaster is insufficient. We need to do more to invest
in programs and research efforts to prevent future natural
disasters from becoming national tragedies. I worked tirelessly
to get the National Landslide Preparedness Act signed into law
in 2021 with the support of many of you in this room today.
This law established a National Landslide Hazards Reduction
Program through the U.S. Geological Survey to better identify
and understand landslide risks, protect communities, save lives
and property, and help improve emergency preparedness. It also
authorized the 3D Elevation Program, which in the past few
years has made incredible strides to update and coordinate the
collection of enhanced, high-resolution topographical data
across the country.
In addition to helping communities plan for and respond to
natural hazards, this data is being used to improve public
safety, national security, infrastructure, agriculture, and
natural resource management. Through this law, significant
progress has been made in landslide science, allowing
communities to be better prepared for when landslides do occur.
In recent years, we have seen dramatic increases in extreme
weather events. We need to do everything in our power to make
sure that communities across the country continue to have the
tools at their disposal to be prepared. Currently, the programs
authorized by the National Landslide Preparedness Act will
expire on September 30 of this year.
In the 3 years since the enactment, USGS and their partners
have made incredible strides, and we must keep building on
their progress. I introduced H.R. 7003, along with
Representatives Schrier, Gluesenkamp Perez, and most of the
Washington Delegation to reauthorize these programs through
2028.
This bill has bipartisan and bicameral support. Senators
Cantwell and Murkowski will be leading the effort in the
Senate.
Every state across the country faces landslide risks, which
is why we must reauthorize these critical programs. Thank you
again for the opportunity to speak on the need to reauthorize
the National Landslide Preparedness Act.
And finally, Mr. Chairman, I would request unanimous
consent to enter written testimony from Washington State
geologist Casey Hanell; Snohomish County Senior Advisor on
Resilience, Jason Biermann; and the Cowlitz County
Commissioners into the record.
Mr. Stauber. Without objection.
[The information follows:]
Statement for the Record
Casey R. Hanell
State Geologist and Director
Washington Geological Survey
Department of Natural Resources
Mr. Chairman, members of the subcommittee, my name is Casey Hanell,
State Geologist and Director of the Washington Geological Survey (WGS).
Thank you for the opportunity to provide testimony on behalf of WGS and
the Washington Department of Natural Resources (DNR) on the critical
importance of the reauthorization of the National Landslide
Preparedness Act, H.R. 7003.
Washington is one of the most landslide-prone states in the nation
and has hundreds of thousands of known and unknown landslides. Several
of these landslides have been among the most devastating and deadly in
U.S. history, such as the 2014 SR530 landslide, also known as the Oso
landslide, that resulted in 43 fatalities; the 1998 Aldercrest-Banyon
landslide that destroyed 137 homes; and the 2009 Nile landslide that
blocked the Naches River, wrecked 14 homes, and left a critical cross-
state highway impassable (Figure 1). Our steep terrain and extreme
winter precipitation events can produce thousands of rapidly moving
landslides in a period of a few hours, affecting entire regions of the
state simultaneously. Additionally, the geologic conditions in many
parts of our state are also prone to chronic slow-moving landslides
that tear apart homes, roads, and other infrastructure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 1. Several examples of significant historical landslides
in Washington, demonstrating both the statewide nature of the hazard
and the associated devastating consequences.
March 22, 2024, will mark 10 years since the Oso landslide, the
deadliest landslide in US history. This slide tragically resulted in
the deaths of 43 people and upended an entire community.
Because of that, we significantly ramped up our efforts to
understand landslide hazards and associated risks. In the 10 years
since the Oso Landslide, WGS started both a Landslide Hazards Program
and a Lidar Program.
The Landslide Hazards Program uses lidar data to map landslides on
a county-by-county basis and has completed landslide inventories in
Whatcom, Snohomish, King, Pierce, Klickitat, and Skamania Counties
(Figure 2). The mapping in these counties covers only 14% of the State,
yet an astonishing 34,683 landslides were mapped. These inventories are
used by planners, emergency managers, public works departments, and
those who live or work where these hazards could impact their daily
lives. They also assist local jurisdictions in making educated
decisions about their assets, community safety, and growth management
using the best-available science.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 2. Counties in Washington that have completed or in
progress landslide inventories. Inventory work has only been completed
for 14% of the state and 34,683 landslides have already been mapped.
In the FY23 federal budget, $1 million was appropriated to initiate
the competitive grant program authorized by the National Landslide
Preparedness Act. The grant program is currently under development
within the United States Geological Survey (USGS). Once established,
grant funding from this program will allow state and local funding to
be leveraged with matching federal funding to accelerate the
identification and understanding of landslide hazards and risks in
Washington State and nationwide.
In addition to landslide inventory work, we are placing an
increased focus on landslides that happen following wildfires, known as
post-fire debris flows. Until recently, little research on post-fire
debris flows was done in Washington State. Initial work in other areas
of the Pacific Northwest shows that current models used for emergency
post-fire debris flow hazard assessment, which were developed with data
from outside the region, may be less accurate for Washington's geology
and climate. More frequent and intense wildfire seasons in our state,
combined with growing populations in the Wildland Urban Interface, put
lives and infrastructure at greater risk from post-fire debris flow
hazards. Debris flows can travel considerable distances, disrupting
roadways and other infrastructure, destroying private property, and
causing flooding (Figure 3). Due to their speed and magnitude, post-
fire debris flows pose an immediate, critical threat to public safety.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 3. A cabin that was destroyed in 2022 following a post-
fire debris flow from an upslope wildfire burn scar.
Steep terrain and elevated wildfire risk in the northern portion of
the eastern Cascades have historically resulted in a higher frequency
of post-fire debris flows and flash floods relative to other parts of
Washington. In Chelan County, debris flows and flash floods resulted in
14 fatalities at Squilchuck Creek (1925), 8 fatalities at Tenas Gorge
(1942), and 4 fatalities at Preston Creek (1973). In Okanogan County on
August 22, 2014, multiple debris flows originating from the Carlton
Complex wildfire damaged homes and roads. Mud, boulders, and debris
damaged approximately ten homes along State Highway 153.
Climate change and drought are increasing the fire hazard to the
western Cascades as well--in 2022, the Bolt Creek Fire in the western
Cascade foothills of King and Snohomish Counties burned 14,820 acres of
steep terrain, creating a growing concern for post-fire debris flows
near these more densely populated areas. Since 2017, we have recorded
119 debris flow or flash flood events in 13 burn scars (Figure 4). The
National Landslide Preparedness Act supports our efforts in mapping
these hazards, both before and after the fire has passed, increasing
preparedness, mitigation, and recovery.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 4. Map showing a selection of major wildfires from 2017
to 2022 and the number of debris flows and flash floods along separate
drainages documented within the 2022 field season alone.
To improve regional hazard assessments and early warning efforts in
the years following a fire, my agency is actively monitoring burned
areas to correlate rainfall rates to the timing of debris flows and
flash floods. By collecting data from on-the-ground observations, rain
gauges, telemetered weather stations, and motion-activated cameras, we
are building an inventory of geologic hazard events and associated
weather conditions (Figures 5 and 6).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 5. A rain gauge being installed in a burn scar to help
improve early warning to communities downstream.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 6. In early summer of 2023, a game camera installed by
WGS captured a debris flow within the Cedar Creek burned area. The
image on the left shows the stream on the alluvial fan weeks before the
debris flow occurred, shown on the right. This debris flow impacted
several homes and the common road for a community, which had already
dealt with three previous debris flow events in recent years. Because a
weather station was also deployed nearby, we can further refine
rainfall thresholds and improve timing of emergency alerts to at-risk
communities.
Since the establishment of the Washington Geological Survey's Lidar
Program in 2015 in response to the Oso Landslide, the Survey has been
collecting, compiling, processing, and distributing lidar data, not
only to assist in identifying landslides, but for the benefit of the
State.
A USGS-sponsored national study (Dewberry, 2022 \1\) was recently
conducted to understand the costs, benefits, and future needs with
respect to lidar. Data \2\ for each state show the potential benefits
from access to high-quality elevation data. For Washington State alone,
the benefits are at least $9,460,000 annually, or $18,920,000 per
biennium (Figure 7). Overall, lidar data and high-quality terrain data
could provide $13.5 billion in annual benefits for the nation.
---------------------------------------------------------------------------
\1\ Dewberry, 2022, 3D Nation Elevation Requirements and Benefits
Study [accessed July 26, 2023, https://www.dewberry.com/services/
geospatial-mapping-and-survey/3d-nation-elevation-requirements-and-
benefits-study]
\2\ Carlson, T., 2023, The 3D Elevation Program--Supporting
Washington's economy: U.S. Geological Survey Fact Sheet 2022-3075, 2
p., accessed July 24, 2023, https://doi.org/10.3133/fs20223075.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 7. Examples of lidar uses in Washington that are part of
---------------------------------------------------------------------------
the $9.5 million potential annual benefits of statewide lidar coverage.
WGS has relied heavily on USGS 3DEP funding to support this work.
Between 2016 and 2024, Washington State has collaborated with 3DEP on
seven large-area lidar collections to support the goal of statewide
lidar acquisition and refresh. This partnership has resulted in 32,632
square miles of lidar coverage for the state (Figure 8). 3DEP has also
separately participated in at least four federal partner collections in
Washington, adding an additional 22,351 square miles of lidar coverage.
Dollar for dollar, 3DEP has almost matched the State's investment
toward this critical goal--since 2016, 3DEP has contributed at least
$5.2 million to Washington State's lidar in addition to the State's
$7.1 million investment, which means that Washington truly appreciates
and needs this program's partnership and support.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Figure 8. Map showing lidar coverage acquired in partnership
with 3DEP for the state.
WGS is continuously receiving requests for more frequent lidar
collection, as most natural resource, habitat, forestry, or
conservation decisions in Washington use lidar as critical input to
workflows and analyses. WGS is keenly aware of lidar needs and
applications by local and state partners across the state who actively
help WGS to determine future collections, priorities, and standards.\3\
From these relationships, we know that the ideal statewide refresh rate
for lidar is between five and ten years to see the ways our land is
constantly changing. So, while Washington State has nearly achieved
statewide lidar coverage, a greater, longer-term effort is imperative
to ensure that collection is repeated on a predictable and useful
timeline for the many uses across the state.
---------------------------------------------------------------------------
\3\ Washington Geological Survey, 2023, Washington State Lidar
Plan: Washington Geological Survey, 29 p., accessed January 23, 2024,
https://www.dnr.wa.gov/publications/ger_wa_lidar_ plan_2023.pdf/.
In addition to landslides, lidar is integral to WGS's work to
assess other geologic hazards such as tsunami inundation and active
faults which have the potential to generate earthquakes. It's also
relied upon heavily to produce geological maps, conduct geothermal
assessments, map critical minerals, and to regulate surface mines.
Local jurisdictions require high-quality lidar data and refresh for
urban growth planning and change detection. Local utilities use this
data for grid hardening projects and planning. Conservation districts
use this data to assist agriculture and irrigation districts in
efficient land and resource management. State land managers use this
data to determine forest health, assess timber harvest slope stability,
and to site critical infrastructure. And numerous partners use this
data to plan, manage, and determine the effectiveness of habitat
restoration projects. The Washington Department of Ecology is also
relying on 3DEP lidar data to update hydrology and stream network data
---------------------------------------------------------------------------
through the USGS Elevation Derived Hydrography Program.
Through WGS partnership with 3DEP and participation in the federal/
state interagency 3DEP Working Group, Washington has positioned itself
to be a strong partner and advocate for achieving state and federal
goals. Working with 3DEP expands our collection areas and reduces
refresh timelines, taking a planned ten-year refresh cycle and reducing
it to six years or fewer. And just as importantly, WGS values the
ability to provide input on when, where, and what quality standards are
used to help meet the needs of Washington partners.
The National Landslide Preparedness Act is important because
landslides in Washington are frequent, posing significant threats to
life and infrastructure. Inventories, susceptibility, and hazard maps
for the state are far from complete, with 86% of the state yet to be
mapped. Nationwide collaboration that includes funding for lidar and
landslide research allows us to learn more about these hazards, saving
lives and money. If the National Landslide Preparedness Act expires, we
worry we will lose momentum on these important efforts.
Thank you again for the opportunity to provide testimony,
______
Statement for the Record
Jason Biermannl
Senior Policy Advisor on Resilience
Snohomish County Executive's Office
Mr. Chairman, and members of the Committee, thank you for the
opportunity to provide remarks on behalf of Snohomish County regarding
the importance of maintaining this critical effort. I sincerely
appreciate the opportunity to contribute our perspectives today on the
vital work that you are undertaking in this legislative hearing. My
name is Jason Biermann, and I currently serve as the Senior Policy
Advisor on Resilience to Snohomish County Executive Dave Somers. Before
assuming my current role, I spent 13 years in the County's Department
of Emergency Management. I began there in 2009 as a program manager
focused on hazard mitigation, became the deputy director in 2014, and
served as the director from 2016 through 2022. I also served as the
Chair of Washington's Emergency Management Council, which is
statutorily mandated to provide an annual report to the Governor on the
status of emergency preparedness throughout the state.
Located just north of Seattle, Snohomish County's 2200 square miles
provides a beautiful, diverse, and dynamic home to almost 850,000
residents. Within our borders one can experience everything offered by
the Puget Sound, the flowing waters of our river systems, and the
heavily forested Cascade mountains. We contain large cities, most of
which lie along Interstate-5 in the western third of the county, as
well as small towns, unincorporated areas, and the lands of three
Tribal Nations. Because of our proximity to the ``Ring of Fire,'' \1\
our residents and businesses face the constant threat of seismic and
volcanic activity. In addition, we routinely experience significant
flooding, severe weather, an increasing number of wildland fires, and
the effects of landslides.
---------------------------------------------------------------------------
\1\ According to the USGS, the Ring of Fire ``is the most
seismically and volcanically active zone in the world.'' https://
www.usgs.gov/faqs/what-ring-fire
---------------------------------------------------------------------------
My testimony today emphasizes the real-world value of your
continued support for the critical and innovative programs initiated by
the National Landslide Preparedness Act, which is the focus of this
hearing. The enhanced mapping and hazard research greatly increased our
understanding of the extent to which landslides could affect our
residents. This, in turn, led to better assessments of our county's
vulnerability to landslides and advancements in our ability to warn our
residents. These programs remain essential for protecting lives and
property, and for helping to ensure we invest in resilient
infrastructure.
To better illustrate the importance of these programs, I offer
first-hand insights from the response to a tragedy that happened in
Snohomish County. At 10:37 a.m. on Saturday, March 22, 2014, a massive
landslide occurred in unincorporated Snohomish County near the small
community of Oso. Approximately 8,000,000 cubic meters of debris--mud,
trees, and boulders--slammed into a neighborhood near the Stillaguamish
River, claiming 43 lives and dozens of homes.\2\ The SR-530 (Oso) slide
also covered nearly 1000 linear feet of State Route 530 and destroyed
the telecommunications fiber running along the road, effectively
isolating the small town of Darrington, Washington.
---------------------------------------------------------------------------
\2\ Iverson et al., Landslide mobility and hazards: implications of
the 2014 Oso disaster, (Earth and Planetary Science Letters, January
2015).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
For weeks, volunteers and first responders from state, local,
and federal agencies searched the area for the remains of the victims.
They located the final person on July 22, 2014, four months to the day
after the slide occurred. In addition to those efforts, and for years
following the slide, agencies from all levels of government and
private/non-profit organizations worked to help the area recover from
the devastation. They restored the road and communications, and they
worked with the affected communities to help them heal and rebuild
their vibrancy. We remain profoundly grateful for the assistance we
received, both during and after the incident.
In the aftermath of the Oso slide, we learned much from our
partners at the United States Geological Survey. They brought high-
resolution digital topographic (lidar) data and modeling capabilities
that helped understand the conditions that led to the slope, which had
a long history of prior historical landslide activity, failing so
catastrophically. They were also able to peer beneath our forested
hillsides to uncover evidence of slide activity that has occurred
throughout the preceding millennia.
What we learned, we used. Better mapping of our known landslide
hazards revealed an estimated 60,000 people living in areas where steep
slopes, soil types, and significant rainfall could combine to make the
earth more prone to sudden, violent movement. We identified 12,400
structures as being potentially at risk of slides, 95% of which were
homes. This information helped us to swiftly develop a system for early
detection and warning based on rainfall and other factors. We now
routinely monitor the amount of moisture in the ground and issue
countywide alerts when the risk of landslide becomes elevated during
our rainy season. We began educating our residents to report when they
see tilting trees or cracks in the ground. In a region where landslides
occur frequently (see graphic), this helped tremendously.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
It is important to note we applied these lessons learned not
only to address the potential for landslides as large as the Oso slide,
but to those that occur regularly throughout Snohomish County.
Thankfully these minor slides do not cause casualties; however, they do
disrupt transportation and commerce on our roads and railways, and they
have on multiple occasions blocked access to residents trying to reach
their homes. It is critical to note that we learned these things
because of resources made available to us in the aftermath of a tragedy
and believed, and continue to believe, that similar resources should be
available to local jurisdictions across the Nation. Some of the most
critical aspects of the assistance we received fall within the
parameters of the National Landslide Preparedness Act, which benefits
local jurisdictions throughout the country.
Specifically, in 2021 the National Landslide Preparedness Act (P.L.
116-323) began to provide these resources to local jurisdictions.
Landslides occur in all 50 states and the U.S. territories, causing
estimated damages exceeding $2 billion and between 25 to 50 fatalities
annually.\3\ The National Landslide Hazards Reduction Program, which
the National Landslide Preparedness Act authorized, helps local
communities to better understand their risk. It allows us to reduce our
losses to landslides by making more informed decisions on land use and
the placement of critical infrastructure. It has also expanded the
ability of the USGS and NOAA/NWS to provide debris-flow warnings after
wildland fires. In 2022, when the Bolt Creek Fire scorched nearly
15,000 acres of eastern Snohomish County and western King County, it
brought federal expertise to help us make decisions about when to close
U.S. Highway 2 and keep people safe from debris flows below the burn
scar. Not only were their insights vital to our decision making, but
they also helped us clearly explain the decisions to our residents and
visitors. As we anticipate an increasing number of wildfires to affect
Snohomish County, that federal expertise will remain invaluable.
---------------------------------------------------------------------------
\3\ U.S. Geological Survey. Landslide hazards: A national threat.
(USGS Fact Sheet 2005-3156, 2005).
---------------------------------------------------------------------------
Snohomish County strongly supports a reauthorization of the
National Landslide Preparedness Act. Natural hazards can cause
substantial damage throughout the Nation, but if armed with the
appropriate information, local communities can take action to avoid and
mitigate potential harm. The USGS earthquake, volcano, and landslide
programs help to strengthen our resilience to these hazards and protect
our communities and residents from harm. All these hazards pose a risk
to Snohomish County and our efforts to prepare for earthquakes and
volcanoes have benefited greatly for many years. While the landslide
program is newer than the earthquake and volcano programs, it is just
as critical.
I hope my testimony conveys how important this reauthorization is
to Snohomish County and to counties throughout the country. The support
of our federal partners remains integral to our ability to keep our
residents and businesses safe from landslides. Losing the resources and
technology for mapping, ongoing monitoring, and research will have a
significant, negative effect on our chances of preventing another
tragedy like the one we endured nearly a decade ago.
Thank you for the opportunity to submit testimony, and I look
forward to answering any questions you may have.
______
Board of Cowlitz County Commissioners
January 30, 2024
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Re: The Testimony from Cowlitz County, Washington regarding the
Legislative Hearing on the National Landslide Preparedness Act
Reauthorization Act
Chairman Westerman, Ranking Member Grijalva, and Members of the
Committee:
Thank you for the opportunity to provide remarks in support of the
National Landslide Preparedness Reauthorization Act. The impacts that
landslides have had on our Cowlitz County are significant. Cowlitz
County Washington is located in southwest Washington north and east of
the Columbia River. This area is prone to landslides that impact public
infrastructure (roadways, railroads and utilities) and private
property. The following information highlights the impacts of
landslides on local jurisdictions.
In the winter, it is not unusual for new landslides to occur as the
result of extreme weather events or typical winter weather. In December
2015 there was a significant rainfall event that caused close to three
dozen new landslides. During the active rainfall event Public Works had
road crews out responding to calls of blocked roadways and flooding. As
the majority of the event occurred during the night the road crews and
Sheriff's Department were closing roads and notifying residents if they
appeared to be in the line of danger. During this event one piece of
equipment was washed away by a slide and a resident trapped in his
home, fortunately neither were injured. Furthermore, as the roadways
were closed where possible, detour routes were opened for residents and
emergency responders. In addition to the closures of the local roadways
Interstate 5 was closed limiting the access from the south. The
succeeding morning, the Public Works Department completed initial
assessments of the damage to determine what could be cleaned up and
what needed a formal assessment. Cowlitz County called in a
geotechnical engineer to assess the slides and determine if the
location could be cleaned up or if an engineered solution was required.
The County cleaned up more than two dozen slides and completed large
long-term repairs of six other slides following this massive weather
event.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
When a large scale occurs oftentimes the County will declare an
emergency and send this declaration to the Governor with the hope that
the State will declare an emergency to send on to the Federal
government. This needs to occur to allow the County to be eligible for
federal assistance. This process requires the Department of Emergency
Management to coordinate with the County, the cities, and the utilities
to estimate the damage that has occurred. The local jurisdictions then
need to work with FEMA and FHWA for approval of eligibility of damage
and the potential permanent repairs. This process requires extensive
staff time for coordination of repairs and accounting of the work that
has occurred.
In addition to fast moving slides, Cowlitz County has a large
number of deep-seated slow-moving slides that are beyond our ability to
repair. The slides are not eligible for federal funding even when they
are reactivated during a large storm event. The County addresses these
areas a number of ways depending on the scale of the slide and its
location relative to the roadway. We have numerous locations where we
maintain drainage facilities to remove the water from the slide area.
These facilities include horizontal drains, trench drains and a pump
station. Other slides are left as stretches of roadway with only a
gravel surface that the County adds rock to as needed (it can vary from
weekly to a few times a year). Other areas that do not respond to
drainage solutions are paved with additional pavement added as needed.
We also have areas that have jersey barriers at the toe of slope to
prevent falling rocks from entering the roadway.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
When the County responds to landslides and install a long term
repair the costs impact the budget for the year. There is an annual set
aside for emergency response to landslides but large repairs will
either be delayed for the next budget or they delay other projects that
are planned. Fiscal impacts of engineering solutions for small slides
(50 to 100 linear feet) that impact roadways vary by the type and
height of the slide and can include drainage solutions (starting at
$200,000), buttresses (starting at $500,000), or retaining walls
(starting at $1,000,000). There are also locations where a slide is
above the roadway where rock scaling is appropriate and this process
starts at $500,000 for a small slide.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
In addition to the slides that are within the within the
County's jurisdiction, Cowlitz County is home to one of the largest
landslides in the United Stated that occurred in the City of Kelso. In
1998 a slow moving slide started in the City of Kelso that destroyed or
made uninhabitable 140 homes. The City worked with FEMA to buy out
owners, reestablish utilities to the homes that remained and demolish
the homes that were purchased. The Washington State Department of
Transportation (WSDOT) deals with three ongoing landslides on
Interstate 5, State Route 4 and State Route 411. The slide on
Interstate 5 occurs during large storm events and drops rocks and other
debris onto the interstate shutting the roadway. This backs traffic up
for miles, stops interstate commerce and interferes with emergency
services. The only local north south alternate route is steep and windy
and cannot be traversed safely by trucks. The closest alternate route
for trucks includes driving the 30 miles back to Portland, Oregon and
using Oregon State Route 30 to the Lewis and Clark Bridge. This detour
adds a minimum of an hour of travel and is also prone to landslides.
State Route 4 has a steep slope above the roadway that is prone to
sliding onto the roadway and frequently requires rock scaling projects.
State Route 411 between Kelso and Castle Rock has a deep seated
landslide that WSDOT has chosen to overlay as needed, not repair.
Cowlitz County is also home to a several areas of lahar flows
(areas of volcanic mud flows) that are prone to erosion and failure.
After Mount Saint Helens erupted the County and WSDOT worked to reopen
the area that were covered by the massive mud flows. Many of the
roadways were reconstructed on the lahar materials. In a large storm
event, the County lost a set of culverts that were installed on top of
the mud flow to reestablish an arterial serving the area. The resulting
canyon was over 100 feet long and 40 feet deep. Fortunately for the
residents and emergency responders there is an alternate route. This
route adds approximately a half hour to the residents adjacent to the
washout and emergency responders. Since the slide occurred the County
has purchased and installed a temporary one lane 120' span bridge. We
are currently in the process of designing a permanent bridge that we
are planning to install in 2025. The expense to the County is over
$4,000,000 and was not eligible for emergency relief funds from FEMA or
FHWA because it was a localized weather event.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
WSDOT experienced a similar failure in 2023 on State Route 504,
the route to the Mount Saint Helens. There were multiple people
stranded beyond the slide at Johnson Ridge Observatory that needed to
be evacuated by helicopter after spending the beyond the slide. WSDOT
completed a temporary roadway to allow access to the stranded vehicles
and scientific sites beyond the failure. This temporary roadway failed
during the first rains of the winter and the roadway will not be
reopened again until 2026 at the earliest.
In addition to the infrastructure damage caused by slides there are
other ongoing impacts to the citizens of Cowlitz County. If a slide
occurs on private property it is the property owner's responsibility to
repair any damages that have occurred to the property. If the damage is
significant, the owners could lose the use of the property.
In order to prevent additional structures from being impacted by
landslides the County has adopted a Critical Area Ordinances that
includes restrictions on construction. Prior to construction the
developer must review the County maintained hazard map to determine if
the parcel is impacted by landslides and address items contained in the
ordinance. A snipit of this mapping is shown below.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
We would like to see continued support in our community to
identify, prepare for emergency response and mitigate for known
landslides to prevent interruptions to the lives of residents. These
activities could include continued map updates, development of a Public
Works inventory of slide impacted roadways that includes potential
projects with costs, and mitigation projects.
Susan Eugenis, Arne Mortensen,
Cowlitz County Engineer Commissioner District 1
Dennis P. Weber, Richard R. Dahl,
Commissioner District 2 Chairman District 3
______
Ms. DelBene. Thank you, I yield back.
Mr. Stauber. Thank you very much. We will now move to
introduce our second panel of witnesses.
Let me remind the witnesses that under Committee Rules,
they must limit their oral statements to 5 minutes, but their
entire statement will appear in the hearing record.
To begin your testimony, please press the ``talk'' button
on the microphone.
We use timing lights. When you begin, the light will turn
green. When you have 1 minute remaining, the light will turn
yellow. At the end of your 5 minutes, the light will turn red,
and I will ask you to please complete your statement at that
time.
I will also allow all witnesses to testify before Member
questioning.
Our first witness is Dr. Steven Feldgus, and he is a
Principal Deputy Assistant Secretary for Land and Minerals
Management in the Department of the Interior, and is stationed
right here in Washington, DC.
Dr. Feldgus, it is great to see you again, and you are now
recognized for 5 minutes.
STATEMENT OF STEVEN FELDGUS, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, LAND AND MINERALS MANAGE-
MENT, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Dr. Feldgus. Thank you very much, Chairman Stauber, Ranking
Member Ocasio-Cortez, and Ranking Member Grijalva, members of
the Subcommittee. My name is Steve Feldgus, and I am the
Principal Deputy Assistant Secretary for Land and Minerals
Management at the Department of the Interior. Thank you for the
opportunity to testify on H.R. 2925, the Mining Regulatory
Clarity Act; H.R. 7003, the National Landslide Preparedness Act
Reauthorization Act; and H.R. 7004, which would amend the
Mineral Leasing Act to modify certain terminology. These bills
addressed issues related to the Federal mining and mineral
leasing programs managed by the Bureau of Land Management and
the National Landslide Hazards Reduction and 3D Elevation
programs of the U.S. Geological Survey.
H.R. 2925, the Mining Regulatory Clarity Act, would amend
the Mining Law of 1872 to significantly expand the rights of
mining claimants on public lands. Currently, rights against the
United States under the mining law are dependent upon numerous
requirements, including making a ``discovery of a valuable
mineral deposit.'' Prior to meeting these requirements, holders
of mining claims might have rights against others, but courts
have repeatedly held that these claimants do not have any
compensable property rights against the United States.
H.R. 2925 would grant mining claimants the right to use,
occupy, and conduct operations on public lands, even without
the discovery of a valuable mineral on their claim. Claimants
would only need to have paid the location fee and the claim
maintenance fee, or for those claimants who qualify for a small
minor waiver, complied with the required work assessment.
The consequences of H.R. 2925 would be far reaching and
dramatic. It could encourage the filing of nuisance claims that
attempt to interfere with or prevent other authorized uses, and
could lead to unauthorized non-mining industrial uses and
residential occupancy. Even if no unauthorized uses were
carried out, attempting to extinguish such claims for other
public purposes would likely require significant time and
effort, and subject the Federal Government to numerous takings
claims.
The Department's understanding is that H.R. 2925 seeks to
address the ruling in the Ninth Circuit's Rosemont decision,
and we share that goal. But it is important to note that we
have already taken action to address that decision
administratively by issuing a Solicitor's M Opinion that
identifies options for potentially impacted operators.
H.R. 7003 would reauthorize the National Landslide
Preparedness Act, or NLPA, through 2028. The NLPA directed the
USGS to create a program to identify and understand landslide
hazards and risks, reduce losses from landslides, protect
communities at risk from landslides, and help communication and
emergency preparedness for landslide disasters and impacts.
The NLPA also authorized the USGS' 3D Elevation Program to
respond to the growing need for high-quality topographic data,
and for a wide range of other three-dimensional representations
of the nation's natural and constructed features.
The Department supports reauthorization of the NLPA, and
would like to work with the sponsor and the Subcommittee on
minor amendments to the bill to aid implementation. Since my
role at the Department of the Interior does not oversee the
work of the U.S. Geological Survey, I would be happy to take
any specific questions you might have on H.R. 7003 back to the
USGS to provide a response for the record.
H.R. 7004 would amend the Mineral Leasing Act to replace
the term ``Gilsonite'' with asphaltite. The Mineral Leasing Act
identifies Gilsonite as a leasable mineral, but it does not
contain any references to asphaltite. The Department's general
understanding is that the term asphaltite can be considered a
more inclusive term for all vein-type solid hydrocarbons, which
includes Gilsonite.
The proposed change to the Mineral Leasing Act would not
alter how these types of hydrocarbons would be leased. We do
note that BLM would need to amend its regulations to reflect
the change in the terminology, but the Department has no
objection to H.R. 7004.
Finally, H.R. 6862 is also on the hearing agenda. The bill
would prohibit the Federal Permitting Improvement Steering
Council from finalizing a rule to amend the coverage of mining
projects under the Fixing America's Surface Transportation Act
by limiting it solely to critical mineral mining projects,
including infrastructure constructed to support critical
mineral supply chain activities, critical minerals
beneficiation, processing, and recycling.
The Department defers to the Federal Permitting Improvement
Steering Council regarding this proposed rule and any potential
impacts associated with H.R. 6862.
Thank you again for the opportunity to testify on these
bills, and I look forward to your questions.
[The prepared statement of Dr. Feldgus follows:]
Prepared Statement of Steve Feldgus, Ph.D., Principal Deputy Assistant
Secretary, Land and Minerals Management, U.S. Department of the
Interior
on H.R. 2925, H.R. 7003, and H.R. 7004
Introduction
Thank you for the opportunity to testify on H.R. 2925, the Mining
Regulatory Clarity Act; H.R. 7003, the National Landslide Preparedness
Act Reauthorization Act; and H.R. 7004, which would amend the Mineral
Leasing Act to modify certain terminology. These bills address issues
related to the Federal mining and mineral leasing programs managed by
the Bureau of Land Management (BLM) and the national landslide hazards
reduction and 3D elevation programs of the U.S. Geological Survey
(USGS). Specifically, H.R. 2925 would change claimant rights on Federal
mining claims; H.R. 7003 would reauthorize the National Landslide
Preparedness Act through 2028; and H.R. 7004 would change all
references to the term ``gilsonite'' in the Mineral Leasing Act (MLA)
to ``asphaltite.''
We appreciate the efforts of the Sponsors and the Subcommittee on
the bills under consideration today, and we look forward to continuing
to work with Congress as they move forward through the legislative
process.
H.R. 2925, Mining Regulatory Clarity Act
H.R. 2925 would amend the Omnibus Budget Reconciliation Act of 1993
to expand the rights of mining claimants, with respect to locatable
minerals, by defining the term ``operations'' to include various
mining-related activities. These include any activity or work carried
out in connection with prospecting, discovery and assessment,
development, extraction, or processing; the reclamation of an area
disturbed by any of these activities; and any action reasonably
incident to these activities, regardless of whether it is carried out
on a mining claim, such as the construction and maintenance of any
road, transmission line, pipeline, or any other necessary
infrastructure or means of access on public land for a support
facility.
This bill would also grant mining claimants the right to use,
occupy, and conduct operations on public land with or without the
discovery of a valuable mineral deposit, so long as they have paid the
location fee and claim maintenance fee. In lieu of paying the claim
maintenance fee, claimants who qualify for a small miner waiver may
instead comply with the required work assessment under the general
mining laws. Under the bill, claimants who have met these requirements
would be considered to have satisfied any requirements under FLPMA for
the payment of fair market value to the U.S. for the use of public land
resources.
The Department is committed to working with the Sponsor and the
Subcommittee on reforms that provide certainty and stability for the
industry, strengthen domestic mineral supply chains, advance
environmental sustainability, while ensuring a fair return to
taxpayers. The Department's understanding is that H.R. 2925 seeks to
address the ruling in Center for Biological Diversity v. U.S. Fish and
Wildlife Service, 33 F.4th 1202 (9th Cir. 2022), commonly known as the
Rosemont decision. While the Department supports the goals of H.R.
2925, it is important to note that we have already addressed this
decision by issuing a Solicitor's M-Opinion that identifies options for
operators potentially impacted by Rosemont, and we note that
legislation to resolve this issue may be unnecessary.
Furthermore, the Department is concerned that, as written, this
bill could lead to a number of serious unintended consequences. In
particular, granting the right of use and occupancy to claimants prior
to showing the discovery of a valuable mineral greatly expands the
rights conferred under the Mining Law, and could encourage the filing
of nuisance claims that attempt to interfere with or prevent other
authorized uses of public lands such as grazing, hunting, off-highway
vehicle use, energy development, and more. It could also lead to
unauthorized non-mining industrial uses and residential occupancy--
often referred to as ``squatting''--which previously necessitated the
development of regulations to address the issue. It is also important
to note that discovery of a valuable mineral deposit should always be
required on lands that have been withdrawn from mineral entry, such as
units of the National Park System. The Department would like to work
with the Sponsor and the Subcommittee on improvements to the bill that
maintain the intent of the legislation while limiting potential
unintended consequences.
H.R. 7003, National Landslide Preparedness Act Reauthorization Act
H.R. 7003 would reauthorize the National Landslide Preparedness Act
(NLPA, P.L. 116-323) through 2028. The NLPA directed the Department,
acting through the USGS, to create a program to identify and understand
landslide hazards and risks; reduce losses from landslides; protect
communities at risk from landslides; and help improve communication and
emergency preparedness for landslide disasters and impacts. The NLPA
also authorized the 3D Elevation Program (3DEP), managed by the USGS
National Geospatial Program, to respond to the growing need for high-
quality topographic data and for a wide range of other three-
dimensional representations of the Nation's natural and constructed
features.
The Department appreciates and supports reauthorization of the NLPA
and would like to work with the Sponsor and the Subcommittee to
consider amendments that would improve the ability to implement this
vital authority along with our partners. Such amendments include
clarifying that certain emergency-management and land-use decisions are
appropriately made by State, Tribal, and local governments; technical
corrections to reinforce the need to collect data to maintain quality
and identify changes in the landscape that are essential criteria for
landslide-hazard research; and technical changes to better reflect the
current state of the 3DEP program's implementation and the ongoing need
for data collection.
H.R. 7004, To amend the Mineral Leasing Act to amend references of
gilsonite to asphaltite
H.R. 7004 would amend the Mineral Leasing Act (MLA) to replace the
term ``gilsonite'' with ``asphaltite.'' The MLA identifies gilsonite as
a leasable mineral, but it does not contain any references to
asphaltite. The Department's general understanding is that the term
asphaltite can be considered a more inclusive term for all vein-type
solid hydrocarbons, which includes gilsonite. The proposed change to
the MLA would not alter how these types of hydrocarbons would be
leased. We note that the BLM would need to amend its regulations at 43
C.F.R. Parts 3000, 3140, and 3500 to reflect this change in
terminology. While the Department does not object to H.R. 7004, we
would welcome the opportunity to work with the Sponsor and the
Subcommittee to include a definition for the term ``asphaltite'' in
order to minimize the potential for confusion regarding the intended
reach of the change in terminology.
Conclusion
Thank you for the opportunity to testify on these bills.
______
Questions Submitted for the Record to Dr. Steven Feldgus,
Principal Deputy Assistant Secretary for Land and Minerals Management,
Department of the Interior
Dr. Feldgus did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Lamborn
Question 1. Dr. Feldgus, mineral mining was added to the FAST-41
only a few years ago, have there been any concerns that mining
companies have been taking advantage of this acceleration process
outside of the intent of the law? I don't understand when mines that
are not even running yet are having these expedited opportunities
stripped away.
Question 2. The Administration has said that they are prioritizing
national defense and energy security priorities, and I also agree with
this sentiment, it is what much of my time in Congress has worked hard
to protect. Dr. Feldgus, would you concur that many of the green
energies the Administration is prioritizing uses some of these hardrock
minerals, such as Nickle and Copper use in electric vehicles? I believe
these policies just seem contradictory to what the Biden administration
is saying their priorities for national security, when these policy
decisions are being made behind closed doors that undermine an all of
the above approach to the energy sector. Additionally, the Natural
Security issues regarding domestic mining vs the chokehold that China
has on all mining and mineral refinement is very concerning to me.
Questions Submitted by Representative DelBene
Question 1. What have been the barriers to full implementation of
the National Landslide Preparedness Act to date?
Question 2. What are the near-term priorities the Department of the
Interior is working on with respect to implementation of the Act, and
how will they be affected if the Act expires?
______
Ms. Ocasio-Cortez [presiding]. I thank the witness for his
testimony.
Our next witness is Mr. Rich Haddock. He is the Senior
Advisor for Barrick Gold, and is stationed in Bountiful, Utah.
Mr. Haddock, you are now recognized for 5 minutes.
STATEMENT OF RICH HADDOCK, SENIOR ADVISOR, BARRICK
GOLD CORPORATION, BOUNTIFUL, UTAH
Mr. Haddock. Chairman Stauber, Ranking Member Ocasio-
Cortez, and Ranking Member Grijalva, thank you for holding this
hearing today and inviting me to testify. I appreciate the
opportunity to testify in support of H.R. 2925 and also in
support of H.R. 6862. And I thank Representative Lamborn and
Representatives Amodei and Peltola for their leadership on
these bills.
The Ninth Circuit decision in Rosemont and its progeny have
added meaningless permitting steps, created uncertainty and
delay, and at some sites made mine permitting unfeasible. H.R.
2925 reverses Rosemont and restores permitting of mine plans of
operations to its pre-Rosemont status. It changes no other
provision or precedent in the Mining Law. It changes none of
the myriad of environmental laws to which mining is subject.
The advocacy that resulted in Rosemont was first reflected
in the 1980 writings of then-Professor John Leshy. He wrote
that to force Congress' hand to revamp the mining law, ``It
might even be appropriate for the Interior Department and the
courts to consciously reach the results that make the Mining
Law unworkable.'' One way to do that is to take away the
miners' ability to permit a mine plan that includes the
necessary surface features of a mine, such as the waste rock
facilities, the truck shops, the roads, the pipelines, et
cetera.
Surface use is supported by two long-standing concepts in
the law. Ancillary use refers to the use of the surface of 20-
acre lode claims near your mine workings for the essential
mining-related activities and infrastructure. Mill sites are 5-
acre claims that can be used for some ancillary facilities, but
the land has to be non-mineral in character and, hence, usually
further away from the mine. Eliminate these two uses, and the
law does indeed become unworkable.
Prior to 1997, the lack of serious issues about ancillary
use or mill sites was reflected in regulations going back 40
years, and in practice going back much further. But during the
last days of the Clinton administration, then-Interior
Solicitor John Leshy issues a novel legal opinion that a miner
can only use one 5-acre mill site for each 20-acre lode claim,
and then followed up with a second legal opinion that ancillary
use could not be permitted unless the BLM first went through a
claim validity process and proved the claimant's title was
valid as against the United States as if it were going to be
patented, as opposed to just being valid against rival
claimants.
These opinions were truly an aberrant blip in this long-
standing mining regulation and practice, but neither was used
to block a mine. Congress stepped in and prohibited the
application of the mill site opinion to mines then in the
permitting process. To remove any lingering confusion, BLM
rescinded the Leshy opinions and, in 2005 and 2008, promulgated
regulations reiterating the long-standing interpretations.
Those regulations are still in place.
Litigants nevertheless used the arguments from those
rejected opinion and challenges to mine permitting repeatedly
and lost until Rosemont. After losing in the D.C. District
Court, some of the Rosemont lawyers are still challenging the
mill site regulation on appeal, using the same Leshy theories.
Against this backdrop, the current Interior Solicitor has
issued an opinion implementing Rosemont nationwide, not just in
the Ninth Circuit, and respectfully, the opinion creates more
issues for litigation and offers only unworkable solutions. The
uncertainty and delay created by Rosemont and the Solicitor's
Opinion need to be reversed.
I know there have been concerns expressed about the
potential unintended consequences in this bill. I don't agree
that the language does that. I know the intent is not that. We
addressed that in the Senate hearing last month, and I am happy
to address it here today, as well, but I want you to know that
those concerns can be resolved by the belt-and-suspenders
approach with simple changes to the savings clause.
Now, to H.R. 6862. It was only 4 years ago that the FPISC
voted to add all mining to FAST-41 eligibility to limit it now
to only specific elements. It is at odds with policy geology,
and is the fluid definition of critical minerals. The bill is
consistent with the Biden administration's expressed intent of
expediting major projects and promoting the health of the
domestic mining industry.
On that latter point, it is important. Mining industries
don't just instantly materialize when and just because you need
them. All of the human expertise needs to be in place: mining
engineers, metallurgists, geologists, environmental engineers,
and more, and the equipment and supply chain to be able to
respond to the evolving needs of technology and national
security and discover and produce the minerals we need. Now,
you can do that in part by keeping the entire mining industry
viable without regard to the commodity through improved
permitting.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Haddock follows:]
Prepared Statement of Rich Haddock, Senior Advisor, Barrick Gold
Corporation
on H.R. 2925 and H.R. 6862
Chairman Stauber, Ranking Member Ocasio-Cortez, and Members of the
Subcommittee, thank you for inviting me to appear before you on behalf
of Barrick Gold Corporation and give testimony on H.R. 2925, the Mining
Regulatory Clarity Act of 2023, and H.R. 6862, to amend the FAST Act.
We are pleased to support both bills, which in different ways address
the problem of persistent and intractable permitting delays that keep
the domestic mining industry from moving forward to meet national
mineral needs. H.R. 2925, introduced by Nevada Congressman Mark Amodei,
and co-sponsored by Congresswoman Mary Peltola, would resolve severe
permitting uncertainty and litigation delays caused by a 2019 outlier
court decision known as the ``Rosemont'' decision. Congressman Doug
Lamborn's H.R. 6862 would block an ill-considered proposal by the
Federal Permitting Improvement Steering Council to keep mining
operations from accessing Fast 41's expedited permitting tools.
The House Natural Resources Committee and this Subcommittee have
been leaders in investigating the reasons for permitting delays, and in
proposing solutions, all with the goal of strengthening the United
States' capacity to supply its own mineral needs. Your hearings have
identified the need for expanded domestic mineral production, including
mineral processing, so that the U.S. is not dependent on supply chains
based in countries that may not remain reliable partners. The Committee
has devoted significant time and attention to important permitting
reform legislation, including Chairman Stauber's H.R. 209, the
Permitting for Mining Needs Act of 2023, which includes the provisions
of H.R. 2925. Barrick is grateful for your attention to these issues.
Barrick Gold Corporation
Barrick is the second largest gold producing company in the world
and biggest gold producer in the United States. Barrick has gold and
copper mining operations and projects in 13 countries in North and
South America, Africa, Papua New Guinea, and Saudi Arabia.
Most of our U.S. gold production comes from Nevada where we operate
Nevada Gold Mines LLC, a joint venture of Barrick and the Newmont
Mining Corporation. Nevada Gold Mines is the largest gold-mining
complex in the world, with more than 7,000 employees and 4,000
contractors, who employ thousands more people, in Nevada and around the
country. These jobs pay average annual wages of $94,000--higher than
any other industry in Nevada.
Most of Nevada Gold Mines' operations take place on unpatented
mining claims on public lands managed by the Bureau of Land Management.
About 85% of the land in Nevada is owned and managed by the Federal
Government, more than any other state. Not all of this federal land in
Nevada is open to mining exploration and development. About 22 percent
of the federal lands in the State is withdrawn from mineral entry and
another five percent has been proposed for withdrawal for Greater Sage
Grouse management.
Barrick is proud of the progress it is making globally on its
sustainability objectives and practices. It is a process of continuous
improvement. Of particular note in North America is our now decades-old
dialogue with the Native American communities in northern Nevada,
Southern Idaho and Western Utah. Our efforts have resulted in improved
communications about a range of issues, including our future planned
operations, processes for financially supporting community projects,
cultural resources and cultural understanding. We have increased Native
American employment. But I am proudest of the scholarship foundation we
established in 2008 initially with the Western Shoshone tribes, but
which with their generous consent has been extended to students from
other Native American Tribes. The scholarship program provides
financial assistance for university education and/or vocational/
technical training for any eligible student. Over $15 million has been
donated to the foundation so far, with over 2,760 scholarships awarded.
Graduates have moved forward to enter all walks of life. We are also
proud of our 278 MW solar array in Nevada and work to decarbonize our
mining operations. We are grateful for the letter of support we have
received from the Native American tribes.
Before retiring as Barrick's General Counsel in 2022, I worked for
Barrick for 25 years and was an in-house lawyer in the gold mining
industry for 30 of the 39 years I have been practicing law. I also
served as Barrick's global Vice-President of Environment for three
years. I continue to serve as a Senior Advisor to the company.
H.R. 2925--The Mining Regulatory Clarity Act of 2023
Simply stated, H.R. 2925 is absolutely necessary because of one
court's misreading of the Mining Law, federal land management
authorities, and regulations implementing those laws. The ``Rosemont''
court vacated a plan of operations for the Rosemont copper mine because
the Forest Service failed to confirm the ``validity'' of mining claims
before it approved the mining plan.\1\ That decision wreaked havoc on
100+ years of Mining Law interpretation, and 40+ years of federal
permitting and land management regulations. The additional permitting
burden and additional uncertainty caused by Rosemont and its growing
progeny threatens to add years of litigation delay to virtually any
proposed mining project on federal lands in the U.S., and in the worst
case could make some mines unfeasible. This result has to be avoided.
It is starkly contrary to Congress' and the Biden Administration's
expressed desire to expedite mine permitting and to build up domestic
mineral supply chains.
---------------------------------------------------------------------------
\1\ Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 409 F. Supp. 3d 738 (D. Ariz. 2019), aff'd 33 F.3d 1202 (9th
Cir. 2022).
---------------------------------------------------------------------------
Mining Claims and Claim ``Validity'' Under the Mining Law of 1872
The Mining Law made lands in the public domain ``free and open'' to
mining and activities reasonably related to mining.\2\ Under the Law, a
prospector can ``locate'' a lode mining claim on federal land.\3\ The
prospector's right in that mining claim is a property right,
enforceable against third parties, and subject to diminution or
defeasance only by the ultimate title holder: the United States.\4\
Relying on the doctrine of pedis possessio, courts have recognized
these property rights in unpatented mining claims for more than 100
years. Miners can use and occupy those claims for mining operations,
subject, of course, to federal permitting requirements. Similar Mining
Law provisions also allow use of non-mineral land--called mill sites--
in certain circumstances.\5\
---------------------------------------------------------------------------
\2\ 30 U.S.C. Sec. 22.
\3\ Id.
\4\ Davis v. Nelson, 329 F.2d 840, 846 (9th Cir. 1964).
\5\ 30 U.S.C. Sec. 42.
---------------------------------------------------------------------------
However, a person cannot locate a claim under the Mining Law for
any purpose other than mining or activities directly relating to
mining.\6\ Such a location is a nullity, void ab initio.
---------------------------------------------------------------------------
\6\ U.S. v. Bagwell, 961 F.2d 1450 (9th Cir. 1992) (``good faith''
standard limits possession of public lands to locators exploring for
and developing minerals as contemplated by the Mining Law of 1872);
John D. Leshy, The Mining Law: A Study In Perpetual Motion, (1987), 62
(``entries on the federal lands under the Mining Law must be made for
the purpose of engaging in mineral activity, and not for something
else.'').
---------------------------------------------------------------------------
Until 1994, prospectors could go further, obtaining fee title in
mining claims by applying for a patent. To obtain a patent, a
prospector had to be able to prove the claim contained a valuable
mineral ``discovery.'' \7\ Discovery requires a showing that the
deposit can be mined, removed and marketed at a profit. Proof of such a
discovery established the mining claim as ``valid,'' justifying the
issuance of a patent to a prospector. Applying for patent was never
required; the Mining Law allows the miner to stake a claim, work it,
and remove and sell minerals from it without ever seeking a patent. The
important point here is that proper location and maintenance of a
mining claim affords the claimant substantial legal rights to use the
land for mining purposes, without regard to whether the claim has
undergone a validity examination.
---------------------------------------------------------------------------
\7\ 30 U.S.C. Sec. 29; Cole v. Ralph, 252 U.S. 286 (1920).
---------------------------------------------------------------------------
Traditionally, claim ``validity'' as against the United States had
to be proven only in two contexts: (1) patenting, as just described;
and (2) withdrawal of federal lands from entry under the Mining Laws.
The issue no longer arises in the patenting context because Congress
imposed a moratorium on new patent applications in a 1994
appropriations bill,\8\ and the moratorium has been extended and
reimposed every year since, remaining in place until today.
---------------------------------------------------------------------------
\8\ Department of the Interior and Related Agencies Appropriations
Act of 1995, Pub. L. No. 103-332 Sec. Sec. 112-113, 108 Stat. 2499,
2519 (Sept. 30, 1994).
---------------------------------------------------------------------------
Claim validity remains relevant when the U.S. withdraws federal
lands from mineral entry, either legislatively or administratively.
After withdrawal, unpatented mining claims can be extinguished by the
U.S. unless the claimant can show they contain a discovery, i.e., that
they were ``valid'' as of the date of withdrawal.
Permitting Mines on Federal Lands
For more than forty years, the Bureau of Land Management and U.S.
Forest Service have managed hard rock mining on federal lands through
permitting regulatory programs that govern mining from initial
exploration through mine closure.\9\ These similar sets of regulations
require that operators submit to the agency a full mine plan of
operations for agency review. Both sets of regulations cover mineral
activities from initial exploration through production and reclamation,
mine closure and post-closure maintenance, compliance with
environmental performance standards--including all federal and state
environmental laws--and financial assurance at each and every stage of
the process for all facilities. The agencies have characterized their
programs as ``cradle to grave'' regulations for mining on federal
lands.\10\
---------------------------------------------------------------------------
\9\ Forest Service regulations were initially adopted in 1979 and
are published at 36 C.F.R. Subpart 228A and BLM regulations were
initially adopted in 1981 and are published at 43 C.F.R. Subpart 3809.
Both sets of regulations have been revised and updated since they
initially adopted.
\10\ The Biden Administration's Interagency Working Group on Mining
Laws, Regulations, and Permitting examined these regulatory programs
and affirmed their effectiveness in the final report issued in
September 2023: ``The U.S. has set a high standard for environmental
regulations that apply to today's mining operations.'' IWG Report at p.
14; ``Current mining operations occur under environmental policies and
laws designed to manage the impact of mining on people and the
environment. Environmental laws such as FLPMA, NEPA [and others] have
been in place for approximately 50 years and have improved
environmental practices associated with mining in the U.S.'' Id. at 25;
``Current mining operations on Federal land must comply with Interior's
and USFS's general and specific performance and environmental
protection regulatory standards for mining operations.'' Id. at 28.
---------------------------------------------------------------------------
Mine plans of operations must include provisions documenting all
manner of environmental compliance and protections, including
management of waste rock and other mining wastes, as well as placement
of haul roads and access roads, power lines, pipelines, truck shops,
and other mining-related infrastructure. Mining operations require
significant land near the mine site upon which to conduct these mining
operations. Some of these facilities can be located on mill sites, but
the majority of them are located on mining claims. Throughout the long
history of the Mining Law, miners put together land packages of lode
claims and mill sites as made sense based on the geology and to support
the operations necessary to for the mine. Pre-Rosemont the law was
clear that a miner could use the surface of any lode claim for mining
purposes--prospecting, mining, or processing operations, and uses
reasonably incident thereto. Though these latter uses are commonly
referred to as ``ancillary;'' it is a misnomer: without these crucial
facilities, mining cannot happen.
Because claim validity is not and never has been a prerequisite to
conducting mining activities on mining claims, BLM and Forest Service
land management regulations do not require operators to submit
information relating to mining claim status as part of a plan of
operations, and the agencies have never restricted their review of the
mine plan facilities to locations only on ``valid'' mining claims, or
even on claims. Both BLM and Forest Service regulations define mining
operations to include all lands of any type that are necessary to
implement the approved mine plan.\11\
---------------------------------------------------------------------------
\11\ 43 C.F.R. Sec. 3809.5; 36 C.F.R. Sec. 228.3(a). Of course, as
a practical matter, operators stake claims on all lands included in a
proposed plan of operations to hold those claims against third parties.
---------------------------------------------------------------------------
The Origins of the ``Rosemont'' Theory
The Rosemont decision that threatens to upset these norms has its
roots in the writings of Mining Law critics, who have sought
legislative Mining Law reform since the 1980s. Apparently frustrated
with the inability to gain traction for their preferred solution in
Congress, a law professor named John Leshy wrote in 1987: ``it might
even be appropriate for the Interior Department and the courts to
consciously reach results that make [the Mining Law] unworkable.'' \12\
---------------------------------------------------------------------------
\12\ John D. Leshy, Reforming the Mining Law: Problems and
Prospects, 9 Pub. L. L. Review, 1, 11 (1988) and John D. Leshy, The
Mining Law: A Study in Perpetual Motion, 282 (1987).
---------------------------------------------------------------------------
Professor Leshy later became Interior Solicitor Leshy in the
Clinton Administration. His work as Solicitor included two Solicitor's
opinions designed to implement the ideas he wrote about in the 1980s.
One, the so-called ``Ancillary Use'' Opinion, concluded a miner could
not use the surface of a lode claim for activities that support mining
unless that claim was legally ``valid,'' using that legal term as
explained above.\13\ The other opinion, referred to as the ``Mill
Site'' Opinion, concluded that miners could locate only one 5-acre mill
site for each 20-acre mining claim.\14\ These opinions, which ignored
BLM regulations and decades of practice and precedent under both the
Mining Law and the Federal Land Policy Management Act (``FLPMA''),
became the blueprint for mining law opponents in attacking the Mining
Law administratively and in the courts for the next three decades.
Although Solicitors' opinions have no precedential value, they are
binding on the Department of Interior while they remain in force, and
these opinions clearly were intended to disrupt the administration of
rights under the Mining Law. As Professor Leshy suggested a decade
before, these legal opinions and related rulemakings were designed to
make the Mining Law unworkable, presumably so that Congress would have
to take up Mining Law reform as he envisioned it.
---------------------------------------------------------------------------
\13\ Department of Interior, Solicitor's Opinion M-37004, Use of
Mining Claims for Purposes Ancillary to Mineral Extraction (Jan. 18,
2001).
\14\ Department of Interior, Opinion M-36988, Limitations on
Patenting Millsites Under the Mining Law of 1872, (1997).
---------------------------------------------------------------------------
Congress did react, but perhaps not in the way Solicitor Leshy
expected. In 1999, Congress prohibited the application of the Mill Site
Opinion to any mine plan of operations that had been submitted for
approval prior to issuance of the Opinion.\15\ Subsequent
administrations, Republican and Democratic, rejected both Leshy
Opinions and restored in rulemakings and policy statements the
permitting rules that were in place for decades before Solicitor Leshy
set out to disrupt them.
---------------------------------------------------------------------------
\15\ Consolidated Appropriations Act, 2000, Pub. L. No. 106-31,
Sec. 3006, 113 Stat. 57.
---------------------------------------------------------------------------
The Leshy opinions represent a short blip in an otherwise
uninterrupted decades-long record of interpreting and administering the
Mining Law and permitting mining operations on Federal lands. Even
though the Department of Interior rejected the Leshy opinion and
returned to its prior reading of law and regulations, anti-mining
litigants have continued to press Leshy's legal arguments--in lawsuit
after lawsuit--to challenge the approval by BLM and the Forest Service
of numerous mine plans. Those efforts failed repeatedly and
consistently, both in administrative and judicial appeals, until 2019,
when mining opponents challenged the Rosemont copper mine in the
Federal District Court for the District of Arizona.
The Rosemont Decision
The Rosemont copper mine was a typical large, open pit copper mine
proposed to be located on National Forest lands in Arizona. The open
pit was on a mix of private land and unpatented mining claims. The
Forest Service reviewed the proposed plan under its mining regulations
at 36 C.F.R. pt. 228 and prepared an extensive environmental impact
statement (``EIS''). The EIS evaluated five different configurations
for the storage of waste rock and tailings. In the decision approving
the plan, the Forest Service selected a particular alternative that had
the smallest disturbance footprint and avoided an important cultural
site. The Forest Service also approved a reclamation plan that would
require that the waste rock and tailings storage areas be reclaimed and
returned to the prior land uses--wildlife habitat and grazing--after
mining was concluded. Consistent with practice since the inception of
the Mining Law, the Forest Service did not investigate the status of
any of the mining claims in the plan of operations and did not
constrain its selection of the preferred alternative based on mining
claim status. The Forest Service considered alternative locations for
the waste rock and tailings without regard for mining claim boundaries
or status.
Mining opponents challenged the Forest Service's approval of the
Rosemont plan of operation on numerous grounds, including that the
Forest Service inappropriately approved the placement of waste rock and
tailings on unpatented mining claims whose ``validity'' had not been
established; in other words, an updated version of the long-abandoned
Leshy Ancillary Use Opinion. After many defeats before administrative
law judges and the courts, for the first time, a federal court agreed.
The Rosemont court vacated the plan of operations.
The Forest Service and the Rosemont operator appealed to the Ninth
Circuit Court of Appeals. Two judges in the three-judge panel affirmed
the lower court's decision, but on different reasoning. A third judge
dissented, finding that the Forest Service properly reviewed the mining
plan of operations under its surface management regulations.
Rosemont Fallout
The 9th Circuit Rosemont majority's holding is narrow but
nevertheless problematic, based as it is on an incorrect reading of the
agency administrative record. However, of more concern is the
majority's long discourse on the Mining Law. Though much of that
narrative is unnecessary dicta to the court's holding, it is taking
hold in lower courts and at the Department of Interior, imposing new
requirements and leaving mining regulation on federal lands incredibly
muddled. Further litigation over the meaning of Rosemont is guaranteed
unless Congress acts to remedy the problem.
The Thacker Pass Litigation
The myriad problems unleashed by the Rosemont cases are already on
display. In a 2023 decision, the United States District Court for the
District of Nevada applied Rosemont in a case challenging BLM's
approval of the Thacker Pass lithium mine in northern Nevada. The judge
did not vacate the plan approval, but she directed BLM to inquire into
the validity of certain mining claims on which the company planned to
deposit tailings and waste rock.\16\ Opponents appealed that decision
to the 9th Circuit. During the appeal, mining opponents argued that the
Thacker Pass claims in question must be subjected to a detailed
validity determination akin to the mineral examination required to
support a patent application. The appeals court denied the appeal,
concluding that the district court's remand without vacatur was
appropriate, and further finding appellants' validity argument to be
premature, ruling that those arguments properly should be raised at the
district court level first. To date the Thacker Pass opponents have not
returned to the Nevada district court, but under the general federal
statute of limitations, they have six years to do so. This is just one
of many legal questions raised but not resolved by the Rosemont
decision.
---------------------------------------------------------------------------
\16\ Bartell Ranch v. McCullough, 2023 U.S. Dist. LEXIS 19280 (D.
Nev. 2023) (the ``Thacker Pass'' case).
---------------------------------------------------------------------------
The Mount Hope Mine Litigation
A more recent Nevada case illustrates even more dramatically the
absurd impacts of Rosemont in the 9th Circuit. A Nevada Federal
District Court relied on Rosemont to vacate BLM's approval of the
proposed Mount Hope molybdenum mine.\17\ The Mount Hope molybdenum mine
has been seeking BLM approval for almost two decades. That deposit is
considered one of the largest and highest-grade molybdenum deposits in
the world.
---------------------------------------------------------------------------
\17\ Great Basin Resource Watch v. Dep't of the Interior, 2023 WL
2744682 (D. Nev. 2023).
---------------------------------------------------------------------------
The history of the Mount Hope Mine is a case study in permitting
delays that can be caused by endless litigation. The proposed plan of
operations for the Mount Hope Mine was originally submitted to BLM in
June 2006. The notice of intent to prepare an EIS was published in the
Federal Register in March 2007. The Draft EIS was made available for
public comment in December 2011, and the final EIS was published in
October 2012. The Record of Decision approving the project was issued
one month later.
BLM's decision approving the Mount Hope Mine was challenged by
Great Basin Resource Watch and the Western Shoshone Defense Project.
The Federal District Court for the District of Nevada upheld BLM's
decision in July 2014. Notably, in that appeal, the plaintiffs argued
that BLM erred when it did not confirm the validity of the Mount Hope
mining claims before approving the plan of operations--the Rosemont
argument. Consistent with every other decision on mining opponents'
ancillary use attacks up to that time, the Nevada court applied
established precedent and rejected the argument, finding that the
Mining Law did not require that BLM inquire into claim validity.
Plaintiffs appealed the 2014 decision to the Ninth Circuit Court of
Appeals raising several environmental claims, but they did not pursue
the claim validity argument. In December 2016, the 9th Circuit affirmed
most of BLM's decision, but remanded the project back to the agency for
additional environmental analysis on two air quality issues, and asked
BLM to clarify the legal status of certain springs. BLM completed that
work and published a Draft Supplemental EIS (``SEIS'') for public
review in February 2019, and a final SEIS in July 2019. The Record of
Decision approving the project was reinstated the following month. The
same plaintiffs challenged BLM's decision again. In April, 2023,
following briefing on the impact of the new Rosemont decision, the same
federal judge who approved the project nine years earlier, vacated the
decision and sent the project back to BLM to evaluate the project's
mining claims in light of the Rosemont decision. Eighteen years after
Mount Hope submitted its plan of operations, and two decisions
approving the mine plan, the project remains in limbo.
The Thacker Pass and Mount Hope Mine litigation illustrate just how
disruptive and counterproductive the Rosemont decision has proven to
be, and more litigation is certain. Both cases demonstrate that mining
opponents' efforts to pursue ``results that make [the Mining Law]
unworkable'' are bearing fruit. The resulting uncertainty is
intolerable for a country that says that it wants to encourage a
domestic mining industry. H.R. 2925 is absolutely necessary to fix the
Rosemont mess.
The Department of Interior May 2023 Solicitor's Opinion
In response to Rosemont, the Solicitor of the Department of
Interior issued an opinion in May 2023,\18\ binding on the agency, that
extended the Rosemont court's strained reading of the Mining Law beyond
the 9th Circuit and applied it to BLM's decision-making nationwide. The
Opinion ignored the explicit text of the 3809 regulations and BLM's
application of those regulations over the past 40 years. Interior's
position is that the Solicitor's Opinion, and perhaps some subsequent
guidance that has not yet been made public, can resolve the practical
problems created by the Rosemont decision, obviating the need for a
legislative solution.
---------------------------------------------------------------------------
\18\ Department of the Interior, Office of the M 37077, Use of
Mining Claims for Mine Waste Deposition, and Rescission of M-37012 and
M-37057, May 16, 2023.
---------------------------------------------------------------------------
Barrick does not agree. Despite Interior's efforts to resolve the
many questions raised by Rosemont, the Solicitor's Opinion creates more
uncertainty, guarantees further legal challenges to mining projects,
and undermines the stated policy of this administration and a
bipartisan majority of this Congress to encourage domestic mineral
exploration and production. Most importantly, the Solicitor's Opinion
ensures that mine projects on Federal land will face more permitting
hurdles and delays.
The Solicitor's Opinion directs BLM not to approve ``plans of
operations where the operator proposes to place significant waste or
tailings facilities on mining claims where BLM's record lacks evidence
of the discovery of valuable mineral deposits underlying those
facilities.'' The Opinion does not advise how BLM should proceed where
evidence of validity does not exist. The agency is given no guidance
but to reject the proposed plan of operations. In such circumstances,
the burden shifts back on to the operators to: 1) submit additional
evidence, of the type in a ``mineral potential report;'' 2) ``re-site
the ancillary uses on mill sites (as appropriate);'' 3) seek a land use
authorization under other BLM regulations (i.e., a different permit);
or 4) seek to acquire title to the needed land through a land exchange
or sale.\19\
---------------------------------------------------------------------------
\19\ Solicitor's Opinion at 5-6.
---------------------------------------------------------------------------
The Opinion effectively rewrites the 3809 regulations without any
public notice or comment. The current regulations and 40 years of
practice are dismissed in a footnote where the Solicitor, giving the
``Leshy blip'' more weight than its due, ``acknowledges that the
Department's reading of the Mining Law has not remained static in the
last several decades, and that BLM may have approved mining plans that,
at least in part, are not strictly consistent with this memorandum.''
\20\
---------------------------------------------------------------------------
\20\ Solicitor's Opinion at p. 9, n.7.
---------------------------------------------------------------------------
This Subcommittee should not assume that the new Solicitor's
Opinion will more effectively survive legal challenges than other prior
opinions. For example, the majority opinion in the Rosemont case at the
9th Circuit swept aside in two sentences a 2020 Solicitor's Opinion
that comprehensively evaluated the Mining Law and BLM practice and
interpretation, according the Opinion no deference because ``the
Solicitor has taken inconsistent positions'' on the issue.\21\ The new
Opinion is simply another inconsistent position that courts may well
ignore.
---------------------------------------------------------------------------
\21\ Center for Biological Diversity, 33 F.4th at 1216.
---------------------------------------------------------------------------
The Rosemont decision left many questions unanswered--targets for
further legal challenges. The Solicitor's Opinion attempts to limit the
Rosemont decision to its facts: an inquiry into claim validity is
necessary only where an operator proposes to permanently occupy land
with significant waste rock or tailings facilities. But mining
opponents have already challenged that attempt to limit Rosemont
impacts.
In the Thacker Pass litigation, for example, some plaintiffs argued
that the Rosemont decision applied to every facility in the plan of
operations, not just large ``permanent'' features as suggested by the
Solicitor's Opinion. If this argument were adopted by courts,
pipelines, transmission lines, roads, stockpiles, processing
facilities, and all other such uses could be sited only on valid mining
claims. The Thacker Pass appeals court refused to entertain these
arguments, but only because plaintiffs first raised them on appeal.
This expansive interpretation of Rosemont remains on the table for
further litigation.
The same Thacker Pass litigants complained to the 9th Circuit that
BLM must conduct a full claim validity examination, like those that
used to be conducted for patent applications, for each claim included
in a plan of operations, and that the Nevada District Court's decision
instructing BLM to search for evidence of validity in its record is
inconsistent with the 9th Circuit's Rosemont ruling. As noted above,
the 9th Circuit concluded that such an argument should be made in the
first instance at the court below. Whether Thacker Pass opponents
eventually challenge the BLM's validity review remains to be seen, but
it is certain that the issue will be litigated, whether in Thacker Pass
or elsewhere.
Thus, despite the Department of Interior's assurances, the
Solicitor's Opinion has resolved nothing. Mining opponents are
challenging its reasoning and limits, and courts are not likely to be
bound or even persuaded by the Opinion. The Opinion does not obviate
the need for H.R. 2925.
The alternatives suggested by the Solicitor's Opinion will also
result in further uncertainties and delays, frustrating rather than
speeding mine approvals. The BLM's 3809 regulatory program was designed
to review mining operations holistically. Requiring different permits
and/or use authorizations--not to mention land sales or exchanges--for
individual mine features will result in an absurd fragmenting of the
permitting process, which can only mean more complexity, permitting
delay, uncertainty, and metastasizing grounds for litigation. Under
BLM's 3809 regulations, mine plans are approved if the BLM finds that
those plans include adequate measures to prevent ``unnecessary or undue
degradation,'' the standard imposed by FLPMA and defined in the
regulations. Rights-of-way and other permits are intended for different
kinds of projects, such as discrete roads, and have different
standards; they afford BLM more discretion in making decisions, and
litigants more opportunities to challenge. Rosemont--and Interior's
attempt to address it--requires mine proponents to engage in a guessing
game to determine which facilities should be permitted under which
regulations. Issuing special use permits or rights-of-way for mining
facilities, rather than permitting them through the mining-specific
regulations governing plans of operations (as intended under FLPMA and
done for decades) is a recipe for gridlock.
Criticism of H.R. 2925
I have reviewed letters and statements--provided to this
Subcommittee and also submitted to the Senate Subcommittee on Public
Lands, Forests, and Mining--criticizing H.R. 2925 (and its Senate
companion S. 1281) and predicting dire consequences, including mines of
unlimited size, unlimited land grabs, location of claims for non-mining
purposes, and mining in National Parks and wilderness areas. These
criticisms are misplaced. H.R. 2925 is a straightforward fix to a mine
permitting problem created by a court decision that is an outlier in
the jurisprudence. It simply restores the status quo that existed for
decades before the Rosemont decision. It does not replace the Mining
Law with a new framework. Rather it is a surgical amendment that
restores the original intent of the Mining Law and keeps all other
provisions and their relationship with other statutes, like FLPMA,
intact. The opposition's arguments are all based on the false premise
that Rosemont was always the law and that it somehow was the sole
governing principle that prevented their list of problems. H.R. 2925's
purpose is to cut off the harmful and counterproductive litigation over
the meaning and extent of Rosemont, which, as I have illustrated above,
is already underway. Nothing more, nothing less.
Every mine plan approval from the BLM or the Forest Service
includes language disclaiming any decision on mining claim validity,
emphasizing the long-established distinction between mining claims and
rights, as determined by the Mining Law, and mine permitting as
authorized and required by Interior and Forest Service land management
statutes and rules. The definition of ``operations'' in H.R. 2925
tracks the regulatory definitions in the BLM and Forest Service
regulations.
Arguments that H.R. 2925 will somehow expand mining into parks and
other withdrawn areas are simply incorrect. Areas that are withdrawn
from the operation of the mining laws--of which parks and wilderness
areas are only two examples--remain unaffected by H.R. 2925 and subject
to separate laws and regulations. As I explained at the beginning of
this testimony, when land is withdrawn from mineral entry, either
legislatively or administratively, existing mining claims can be
extinguished by the United States, except for claims that were
``valid'' on the date of withdrawal.\22\ Any activity of any kind on
such surviving valid claims would be subject to special rules that are
more stringent and more restrictive than the rules that govern mining
on lands open to mineral entry.
---------------------------------------------------------------------------
\22\ Lara v. Sec'y of the Interior, 820 F.2d 1535, 1537 (9th Cir.
1987) (``[a] mining claimant has a right to possession [on withdrawn
lands] only if he has made a mineral discovery on the claim.'').
---------------------------------------------------------------------------
H.R. 2925 in no way affects--indeed it cannot affect--these
surviving valid claims. The whole purpose of H.R. 2925 is to make clear
the understanding of the law that existed prior to Rosemont: that
property rights exist in mining claims even before a mineral discovery
is made, and that claim validity need not be established before
unpatented mining claims are used for mine-related activities in
approved plans of operations. In contrast, any mining claim within a
withdrawn area persists only because it is valid, i.e., that its owner
has been able to establish a mineral discovery. Any other claim can be
contested and extinguished by the United States. Critics make the same
mistake as the Rosemont court, interpreting rights under the Mining Law
as an ``all or nothing'' approach. In fact, as the Department of
Interior and federal courts have recognized since 1872, the Mining Law
offers a range of rights: the right to explore open land, the right to
exclude rival claimants from properly located claims, the right to use
lands to support mining, and, until 1994, the right to patent claims
with a proven discovery of valuable minerals. Without the discovery,
these rights fall short of the ``valid existing right'' historically
needed to maintain possession of claims in withdrawn areas.
Arguments that H.R. 2925 will somehow make a mine's footprint
bigger are likewise incorrect. The miner has a huge economic incentive
to minimize the size of its footprint. In the permitting process BLM
will evaluate the location of all features, particularly the large
features like waste rock dumps and tailings, and choose an alternative
that meets the purpose and need of the project, and that is
environmentally preferable. Size of waste rock dumps and tailings and
their location is always a factor the BLM and the Forest Service
consider when they evaluate a proposed mining plan under NEPA and their
mining regulations.\23\
---------------------------------------------------------------------------
\23\ BLM regulations require that an operator ``must avoid
unnecessary impacts and facilitate reclamation by following a
reasonable and customary mineral exploration, development, mining and
reclamation sequence.'' 43 C.F.R. 3809.420(a)(2).
---------------------------------------------------------------------------
Arguments that claims will now be used for non-mining purposes, are
likewise spurious. Nothing in H.R. 2925 purports to change the existing
law that a mining claim located for a purpose other than exploration
and mining purposes is void ab initio. Rather the language is clear,
tied back to the pre-Rosemont law and interpretation, that the surface
of a lode claim can only be used for legitimate mining related purposes
in an approved mining plan.
In summary, I believe that the intent and language of H.R. 2925 are
simple and clear, but acknowledge the concerns that have been
expressed. The Committee can easily resolve any such concerns with a
belt and braces approach by expanding the savings clause in section 3
of the bill to make clear that H.R. 2925 does not create, change, or
expand the rights associated with any mining claim in an area that has
been withdrawn or is withdrawn in the future.
H.R. 6862
On September 22, 2023, the Federal Permitting Improvement Steering
Council (``FPISC'') proposed to amend its existing regulations to limit
application of the FAST-41 permitting process to projects that produce
or process ``critical minerals,'' as defined by the U.S. Geological
Survey.\24\ Congressman Lamborn's bill, H.R. 6862, would block this
unjustified and indefensible step. We support H.R. 6862.
---------------------------------------------------------------------------
\24\ Revising the Scope of the Mining Sector of Project That Are
Eligible for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act, 88 Fed. Reg. 65350 (September 22, 2023)
---------------------------------------------------------------------------
The FPISC's proposal is inconsistent with the Biden
Administration's expressed interest in expediting permitting of major
projects and promoting the growth of the domestic mining industry. It
was only four years ago that the FPISC voted to add mining to FAST 41
eligibility, without limiting access to projects that involve critical
minerals. Since then, only a handful of mining projects have sought
FAST-41 coverage.\25\ Meanwhile, mining projects are compatible with
the purposes of FAST-41 to expedite permitting of major infrastructure
projects, and especially with FAST-41's ``objective'' criteria: (1) the
project is subject to NEPA review; (2) the project is likely to require
a total investment of $200 million or more; and (3) the project does
not qualify for abbreviated review under any other law.\26\
---------------------------------------------------------------------------
\25\ 88 Fed. Reg. at 65352-53.
\26\ 88 Fed. Reg. at 65351.
---------------------------------------------------------------------------
The FPISC offers no data that would justify limiting access for the
mining industry to FAST-41 benefits. Few mining companies have asked to
participate in FAST-41; there is no evidence that the process is being
abused, or that FAST-41 is being burdened by too many requests for
inclusion. There is simply no rational basis for the proposal.
Indeed, by limiting the type of mining projects eligible for the
FAST-41 permitting process to those involving critical minerals
identified by the USGS, the Biden administration would be barring
projects to recover minerals identified on the Department of Defense's
Strategic and Critical Materials List and the Department of Energy's
Critical Materials List. Differentiating these high-priority minerals
from those listed by USGS is the definition of arbitrary, and is
inconsistent with the Administration's national defense and energy
security priorities. H.R. 6862 would prevent this exercise of bad
policy.
In addition to opposition from the National Mining Association,
Barrick, and others in the mining industry, the FPISC proposal is
opposed by the National Infrastructure Alliance--a coalition of leading
construction unions--and by a large contingent of bipartisan and
bicameral Members of Congress. Further, during consideration of H.R.
4664, the FY2024 Financial Services and General Government
Appropriations Act before the full House of Representatives, an
amendment offered by Rep. Blake Moore (R-Utah)--which is nearly
identical to H.R. 6862--was adopted unanimously by voice vote without
opposition.
*****
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
***
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
***
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
***
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__
Questions Submitted for the Record to Rich Haddock, Senior Advisor,
Barrick Gold Corporation
Questions Submitted by Representative Stauber
Question 1. Dr. Feldgus was asked if somebody located a mining
claim and just after it was included in a national park, could the
locator keep the claim from becoming part of the National Park? What
would be the legal status of the claim, under existing law, and under
H.R. 2925?
Answer. Dr. Feldgus answered that the claimant in this
hypothethical would have ``the right to use and occupy the claim.'' His
answer is incorrect, under existing law, or pursuant to H.R. 2925. The
opportunistic claim locator in this hypothetical could not keep her
claim from being included in the newly created national park. Federal
lands within national parks are withdrawn from location under the
mining laws. See 43 C.F.R. Sec. 3811.2-2 (``The Mining in the Parks Act
. . . effectively withdrew all National Parks and Monuments from
location and entry'' under the Mining Law). The withdrawal is subject
only to ``valid existing rights.'' Id. This means that to keep the
claim located just before the park was established, the claimant would
have to prove that the claim was ``valid,'' i.e., that she had
discovered a valuable mineral on her mining claim as of the date of the
Park's creation. Proving a mineral discovery requires exploration and
voluminous data. Typically, that takes years of work, and millions of
dollars of investment. It would be impossible to prove a mineral
discovery on a claim located just before the creation of a national
park, because there would be little or no exploration data to support
it. The claim would be void. BLM could extinguish it.
The claim described in this hypothetical also would be void if H.R.
2925 were enacted. The Mining Regulatory Clarity Act changes nothing
about how such a claim would be regarded under federal mining laws, or
laws governing management of national parks. Indeed, H.R. 2925 has
nothing to do with claim location or the status of claims in areas
withdrawn from entry under the mining laws. All it does is re-establish
the long-standing pre-Rosemont law that if you file a plan of
operations with BLM to build a mine, you can use the surface of any of
your claims for mining-related purposes only without having to prove
the validity of that claim as against the United States.
H.R. 2925's savings clause, especially as amended during the
markup, places this matter beyond dispute. That language now provides
(in relevant part): ``Nothing in this subsection--(D) limits the right
of the Federal Government to regulate mining and mining-related
activities (including requiring claim validity examinations to
establish the discovery of a valuable mineral deposit) in areas
withdrawn from mining . . . . ; or (E) restores any right (including a
right of entry, use, or occupancy, or right to conduct operations) of a
claimant that existed prior to the date that the lands were closed to
or withdrawn from location under the general mining laws and that has
been extinguished by such closure or withdrawal.''
Further, any ``valid'' claims that do survive the creation of the
national park would be governed by The Mining in the Parks Act, 54
U.S.C. 100732, and regulations promulgated by the National Park Service
and codified at 36 C.F.R. Part 9. Those regulations impose additional
procedural and substantive requirements on all mining claims in
national parks. This means that a locator may be able to prove that his
claim is ``valid'' and keep possession of it, but he cannot keep the
claim from becoming part of the new national park. Further, even
patented claims--those claims for which title has transferred from the
U.S. to the claimant--are subject to The Mining in the Parks Act. NPS
regulations implementing the Mining in the Parks Act ``control
activities within units of the National Park System resulting from the
exercise of valid existing mineral rights on patented or unpatented
claims . . . .'' 36 C.F.R. Sec. 9.1 (emphasis added). In other words,
the Act regulates activity on all land--private and public--within the
boundaries of a national park. The Park Service rules provide:
The purpose of these regulations is to insure that such
activities are conducted in a manner consistent with the
purposes for which the National Park System and each unit
thereof were created, to prevent or minimize damage to the
environment or other resource values, and to insure that the
pristine beauty of the units is preserved for the benefit of
present and future generations. These regulations apply to all
operations, as defined herein, conducted within the boundaries
of any unit of the National Park System.
Id. (emphasis added).
The legal status of mining claims within national park boundaries
is not affected in any way by H.R. 2925.
Question 2. Dr. Feldgus was also asked if a nuisance claim were
filed to interfere with a proposed solar project, wind project, or
transmission line, could those projects be stopped or delayed under
H.R. 2925 by the nuisance claim? Please explain the status of nuisance
claims in this hypothetical, under existing law, and under H.R. 2925?
Answer. H.R. 2925 does not change the government's authority or
ability to manage federal lands for solar projects, wind projects,
transmission lines, or the legal status of mining claims as they may
relate to these projects. Nuisance claims are already addressed under
existing law, and H.R. 2925 would not make it easier or more difficult
to establish a nuisance claim, or make it easier or more difficult for
BLM to extinguish the nuisance claim. BLM regulations and H.R. 2925
define ``occupancy'' to require activities that are ``reasonably
incident'' to prospecting, exploring, mining or beneficiating locatable
minerals, and calculated to lead to the extraction and beneficiation of
minerals. See 43 C.F.R. Sec. 3715.2 see also p. 5 below. Nuisance
claims cannot meet these requirements. Further, occupancy cannot occur
until the miner submits a notice or plan of operations to BLM. 43
C.F.R. Sec. Sec. 3715.3-1-.3-6. H.R. 2925 does not invalidate or amend
these regulations. Occupancy in contravention of these requirements
would violate existing law, and the law as amended by H.R. 2925. Any
claim that is not located in a good faith effort to develop a mine is
void ab initio. U.S. v. Zimmer, 81 IBLA 41, 43 (1984). Where claims are
located before lands are segregated or withdrawn, BLM can contest and
extinguish such claims unless the claimant can prove he has discovered
a valuable mineral on the claims. Nuisance claimants will not be able
to make this showing.
Wind and Solar Projects
BLM has taken specific action to address concerns about potential
conflicts between mining claims and renewable energy projects. In 2013,
BLM adopted rules allowing it to temporarily ``segregate'' lands
included in a pending solar or wind energy generation right-of-way
application. 78 Fed. Reg. 25204 (April 30, 2013) (regulations codified
at 43 C.F.R. Part 2091). The preamble to the final rule noted that
while such ``situations are not common,'' the rule would prevent
claimants from placing encumbrances on public land that might delay
processing of right-of-way applications, so that no claims may be
located. BLM has segregated hundreds of thousands of acres for these
purposes. See, e.g., 89 Fed. Reg. 7408 (Feb. 2, 2024) (Notice to
Segregate Lands from Mineral Entry for the Proposed Libra Project in
Mineral County, Nevada).
43 C.F.R. Sec. 2804.25(f) also authorizes BLM to segregate such
lands ``if necessary for the orderly administration of the public
lands.'' ``Segregation'' under these rules has the same effect as a
withdrawal: it means that the lands segregated cannot be appropriated
under the public land laws, including the Mining Law.\1\ Other existing
regulations allow BLM to withdraw lands in connection with various
types of land disposals, including land sales, land exchanges, and
transfers of lands to local governments and other entities. 43 C.F.R.
Part 2300.
---------------------------------------------------------------------------
\1\ BLM explained the distinction between segregations and
withdrawals in the 2013 final rule preamble: ``Segregations under this
rule are not withdrawals. Temporary segregations are different from
withdrawals in that segregations prevent certain uses of public lands
for a short period of time, not to exceed four years for any type of
segregation, while withdrawals are generally for longer terms
(generally 20 years) and must be approved by an Assistant Secretary or
a higher ranked position within the Department.'' 83 Fed. Reg. at
25209.
---------------------------------------------------------------------------
Transmission Lines
Transmission lines--as a linear overhead feature--present a
different management issue for BLM, but one that would not be affected
in any way by H.R. 2925. Rights of way for transmission lines can be,
and frequently are, granted to third parties over mining claims. BLM
may authorize rights of way over the surface of any claims subject to
``valid existing rights.'' 43 C.F.R. Sec. 2805.14. Transmission lines
and mining operations are compatible uses. Transmission lines may need
to be moved if mineral deposits are identified and developed in an
existing right-of-way. The cost of moving the transmission line would
be borne by the mining claimant. We know of one gold mining project
where transmission lines were moved at the miner's expense to
facilitate mineral development.
With this context, it becomes clear that the question posed to Dr.
Feldgus in the hearing on January 31 was not based on situations that
arise frequently in the real world. And Dr. Feldgus' response--that
nuisance claims could pose a real risk to renewable energy and
transmission projects--reveals a lack of knowledge about his agency's
experience with nuisance claims.
As documented above, BLM has concluded that conflicts between
mining claims and renewable energy projects ``are not common,'' but BLM
nonetheless has addressed how it will deal with such conflicts. And
transmission lines and mining claims clearly are compatible uses in the
vast majority of cases. A nuisance claimant could not block a right-of-
way grant for a transmission line. Additionally, the federal government
knows for the most part where transmission lines are likely to be
sited. Most of the major transmission line corridors on public and
other federal lands in the western United States were designated by the
government in 2009 pursuant to Section 368 of the Energy Policy Act of
2005. 42 U.S.C. Sec. 15926. BLM, in consultation with other federal
agencies, has recently conducted a review of these energy corridors and
is in the process of amending resource management plans and preparing
an environmental impact statement evaluating adjustments to the
corridors. 88 Fed. Reg. 83959 (December 1, 2023).\2\
---------------------------------------------------------------------------
\2\ More information about the corridors and the ongoing planning
effort is available at BLM's landing page for the ``West-Wide Energy
Corridor. See https://corridoreis.anl.gov/, last visited on February
15, 2024.
---------------------------------------------------------------------------
H.R. 2925 grants no new rights to a mining claimant. It restores
rights by reversing the Rosemont decision, no more and no less.
Question 3. Dr. Feldgus was also asked if the holder of a group of
nuisance claims could extract large sums of money from the federal
government. Please explain the status of nuisance claims, under
existing law, and under H.R. 2925?
Answer. An opportunist could locate mining claims under existing
law and attempt to extract a payout from the U.S. to relinquish them,
but the attempt would not be successful. The law as amended by H.R.
2925 would not change the outcome in any way. In my 30+ years working
in the U.S. mining industry, I am unaware of anything like this ever
happening. And H.R. 2925 does not make any changes to the law that
would suddenly bolster opportunities for nuisance claimants to extract
large sums of money from the federal government. All H.R. 2925 does is
reverse Rosemont and reinstate the status quo ante: when a miner has
progressed a mineral discovery on public lands and obtained approval of
its plan of operations, the approved plan of operations can authorize
use of the surface of the mining claims for mining related purposes
without having to prove the validity of every claim.
We have been unable to locate any circumstance where the federal
government has compensated nuisance claimants to remove them from
federal lands. As noted above, any claim that is not located in a good
faith effort to develop a mine is void ab initio; BLM can contest and
extinguish it. By definition, nuisance claims are not located in a good
faith effort to develop a mine. The supposed concern underlying the
question to Dr. Feldgus is not rooted in any real-world scenario.
On very rare occasions, the federal government has purchased valid
claims to address a particular national interest. For example, in the
late 1990s the government acquired mining claims from Crown Butte
Mines, Inc. near Yellowstone National Park to foreclose future mining
activity near the Park and facilitate cleanup of historic mine wastes
from 100+ years of past mining.\3\ These were not nuisance claims;
Crown Butte had invested $65 million in the New World Mine, and was
moving towards production.
---------------------------------------------------------------------------
\3\ William J. Clinton, Statement on Acquisition of the New World
Mine (August 7, 1998) (``Today's action culminates an extraordinary
collaboration by the administration, the State of Montana, Crown Butte,
and conservationists to protect both Yellowstone and the economy it
sustains''), available at The American Presidency Project, https://
www.presidency.ucsb.edu/node/224378.
---------------------------------------------------------------------------
There also have been circumstances where the owner of mining claims
sought compensation under the Fifth Amendment when lands were withdrawn
and mining prohibited. However, the U.S. typically challenges such
attempts, and overcoming any such challenge imposes a heavy burden on
claimants. The recent (2009) segregation and withdrawal of more than
one million acres of federal land around Grand Canyon National Park has
generated a number of administrative and judicial challenges that
illustrate how federal land managers proceed in these circumstances.
One of those is the case of Vane Minerals. Vane held 678 uranium mining
claims in the withdrawn area and had invested more than $8.5 million in
uranium exploration. Vane brought suit in the Federal Court of Claims
seeking compensation for its claims. The Court found that it could not
hear the case until Vane: (1) proposed a plan of operations for uranium
mining, and (2) completed a mineral examination confirming the validity
of any claims. Vane Minerals (US) LLC v. United States, 116 Fed. Claims
Rptr. 48 (2014). Doing all the work necessary to prepare and submit a
plan of operations and complete a mineral examination would involve
years of work and millions of additional dollars beyond those Vane
already spent. That is a burden of time and expense that only viable
mining projects could or would bear. No nuisance claimant would spend
millions of dollars to drill and collect data trying to prove a
discovery to extract money from the U.S., when the work and investment
likely would demonstrate the opposite: that no mineral discovery
existed and the claims were not valid. The Vane Minerals example
demonstrates that even where a company makes a significant and
legitimate investment in developing a mineral deposit and seeks
compensation, it must meet a high burden to overcome U.S. opposition.
In short, it is unreasonable to think that the federal government
would pay for nuisance claims. We have not been able to identify any
such circumstance. As the savings clause of H.R. 2925 makes clear,
nothing in that legislation changes the law relative to claim location
or land withdrawals in such a way as to allow or encourage nuisance
claims. The status of nuisance claims remains the same under H.R. 2925.
Question 4. Dr. Feldgus was asked if H.R. 2925 would allow a
claimant to build a house on a mining claim, occasionally pan for gold,
and claim that her occupancy was part of her operation? How would this
activity be treated under existing law, and under H.R. 2925?
Answer. Under existing law, the occupancy would be illegal and
would be extinguished. BLM has the tools--and uses them--to address
illegal occupancy. Under BLM's mining surface use regulations, anybody
building structures (including living quarters), storing equipment, or
taking any other action that disturbs the surface of the public lands
must first seek and obtain BLM approval. H.R. 2925 does not change
those requirements.
In 1996, in response to concern over unauthorized uses of mining
claims, the Bureau of Land Management (BLM) adopted new rules
addressing use and occupancy of claims under the Mining Laws. 61 Fed.
Reg. 37116 (July 16, 1996) (rules codified at 43 C.F.R. Subpart 3715).
In order to occupy public lands under the mining laws for more than 14
calendar days in any 90-day period, a claimant must be engaged in
activities that:
1. Are reasonably incident to mining;
2. Constitute substantially regular work;
3. Are reasonably calculated to lead to the extraction and
beneficiation of minerals;
4. Involve observable on-the-ground activity that BLM may verify;
and
5. Use appropriate equipment that is presently operable.
43 C.F.R. Sec. 3715.2. In addition to these requirements, the occupancy
must involve one or more of the following:
1. Protecting exposed, concentrated, or otherwise valuable minerals
from theft or loss;
2. Protecting from theft or loss equipment which is regularly used,
is not portable, and cannot be protected by means other
than occupancy;
3. Protecting the public from appropriate, operable equipment which
is regularly used, is not readily portable, and if left
unattended, creates a hazard to public safety;
4. Protecting the public from surface uses, working, or improvements
which, if left unattended, create a hazard to public
safety; or
5. Being located in an area so isolated or lacking in access as to
require the claimant or operator to remain on site in order
to work a full shift (ordinarily 8 hours).
43 C.F.R. Sec. 3715.2-1.
Most importantly, under BLM's current regulations, the occupancy
described in the hypothetical would be illegal unless the claimant
first consulted with BLM explaining the need for and scope of the
proposed occupancy, and then submitted either a notice or plan of
operations for BLM review and approval. 43 C.F.R. Sec. Sec. 3715.3,
3809.11, 3809.21. The operator must also submit a reclamation plan
(including removal of any structures) and post financial assurance to
guarantee that the reclamation plan is implemented at the miner's
expense.
Notably, the use and occupancy rules also include expedited
enforcement measures. BLM may issue an immediate suspension order if
use and occupancy is not reasonably incident to prospecting, mining, or
processing operations; if the operator is not in compliance with all
applicable Federal and State standards, including obtaining all
required permits; or an immediate, temporary suspension is necessary to
protect health, safety, or the environment. 43 C.F.R. Sec. 3715.7-1.
Operators who fail to comply with such an order may be subject to a
civil action in federal court and BLM can demand monetary compensation
for damages. 43 C.F.R. Sec. 3715.7-2. BLM has issued 89 suspension
orders since 2000 under the 3809 regulations, and 12 immediate
suspension and 10 cessation orders under the 3715 regulations.\4\ The
data demonstrate that BLM has the authority and enforcement tools it
needs to deal with unauthorized use of mining claims.
---------------------------------------------------------------------------
\4\ Interagency Working Group, Recommendations to Improve Mining on
Public Lands, Sept. 2023 at p. 32.
---------------------------------------------------------------------------
Unauthorized occupancy of claims would be treated no differently
under H.R. 2925 than it is under current law. H.R. 2925, as with
existing rules, allows surface occupancy only for mining-related
purposes. Claimants would still have to consult with BLM before any
occupancy happened, and would have to justify their proposed activities
as ``reasonably incident to mining'' and ``reasonably calculated to
lead to the extraction and beneficiation of minerals.'' Occasional
panning for gold does not meet the regulatory standard.
***
The questions posed to Dr. Feldgus in the January 31 Subcommittee
hearing embody some of the most extreme allegations made by opponents
of the Mining Regulatory Clarity Act. Opponents complain that H.R. 2925
would open the floodgates, allowing mines in National Parks, and
proliferating nuisance claims, frustrating the ability of federal land
managers to protect parks and other protected places. However, when the
questions are examined closely, it becomes clear that the conduct they
hypothesize has nothing to do with H.R. 2925. The legislation does one
thing: it reinstates the law regarding mining-related uses of mining
claims on public lands that existed prior to the Rosemont litigation.
It does not enable or incentivize nuisance claims. It does not
authorize or legitimize new mining claims in national parks or other
lands withdrawn from mineral entry. It does not change the fact that
pre-existing mining claims in withdrawn lands survive the withdrawal
only if the claimant can prove the claim is ``valid,'' i.e., that it
contains a discovery of a valuable mineral.
To address the concerns raised by critics, the H.R. 2925 savings
clause was extensively amended at the Committee markup to make clear
that the bill does not change the Mining Law's provisions regarding
claim location, or authorize new mining activity in lands withdrawn
from mineral entry. The savings clause should resolve concerns about
abuse of H.R. 2925. It seems clear that those who continue to oppose
H.R. 2925 do so because they do not want the permitting disruptions
caused by the Rosemont case to be resolved.
Questions Submitted by Representative Lamborn
Question 1. Mr. Haddock, Barrick Gold mines gold and copper at this
time, can you talk about the hardrock mining industry and perhaps opine
a little on where these minerals are going? Are they for national
security assets, do they help us secure the supply chain? Are they even
in support of clean energies?
Answer. As you point out, Barrick produces copper and gold.
Copper
We produce both copper concentrates and cathode copper. Copper
concentrates are crushed rock, still in mineral form, processed to
separate and concentrate the copper bearing minerals. Copper cathode is
produced by leaching elemental copper from the crushed rock and then
passing an electrical current through the solvent to remove the copper.
Barrick sells its copper concentrate to smelter operators that are
typically part of metals trading companies. Barrick sells its cathode
to metals trading companies and to end users who fabricate piping,
wire, and other copper products. The metals trading companies sell the
copper product from Barrick's mines onward into the global copper
market.
Copper produced by Barrick and sold into the market is used for all
of the traditional uses of copper as well as the uses that support the
transition to clean energy. Put simply, copper is the ``metal of
electrification.'' Its traditional use includes the wiring in all
buildings and infrastructure, including our homes, and virtually
everything that uses electricity, including automobiles and, of course,
military vehicles, aircrafts, and weapon systems, making copper an
obvious national security asset. It is also important to recognize that
in the next 25 years, the world will need to produce the same amount of
copper that has been produced over the last 5,000 years just to meet
global demand.\5\
---------------------------------------------------------------------------
\5\ https://www.worldbank.org/en/news/infographic/2019/02/26/
climate-smart-mining
---------------------------------------------------------------------------
The predicted spike in copper demand--if not an immediate
emergency--should be a wake-up call for U.S. policymakers. Current U.S.
mineral policy is not promoting the increased development of domestic
copper supplies. Copper mines, like other mines and other major
infrastructure projects, suffer from lengthy, multi-layered permitting
processes, policy uncertainty, and inevitable delays from litigation.
There appears to be growing bipartisan agreement in Congress that
permitting reform is needed, but that emerging consensus has yet to
produce permitting reform legislation. These hurdles lead to
uncertainty for investors about the climate in the U.S. for mine
projects. The U.S. Geological Survey's recent Mineral Commodity
Summaries for 2024 \6\ indicated that last year, the U.S. was 46
percent reliant on foreign sources of copper, which is the highest
level recorded amount in the last decade. Without new domestic sources
of copper, the percentage of foreign copper reliance is likely to grow.
---------------------------------------------------------------------------
\6\ https://pubs.usgs.gov/periodicals/mcs2024/mcs2024.pdf
Daniel Yergin, the Vice Chairman of S&P Global, recently summarized
the increasing demand for copper, including ``energy transition
demand'' in testimony before the Senate Energy and Natural Resources
Committee.\7\ A few key facts from his testimony are as follows:
---------------------------------------------------------------------------
\7\ Prepared Testimony of Daniel Yergin, U.S. Senate Committee on
Energy and Natural Resources, September 28, 2023.
1. Each electric vehicle uses two and a half times more copper than
---------------------------------------------------------------------------
a combustion car.
2. The global demand for copper will double over the next 12 years.
U.S. demand will more than double in order to meet both
traditional demand and energy transition demand over the
same period.
3. The U.S. energy transition demand alone will be for 2.6 million
tons of copper in the year 2035.
4. The US currently relies on Chile for 60% of its copper imports.
The U.S. competes with China for sourcing copper from
Chile.
5. There is a serious gap between projected worldwide copper supply
and projected demand necessary to meet 2050 climate
targets.
Other researchers have reached similar conclusions.\8\
---------------------------------------------------------------------------
\8\ See, McKinsey & Company, The net-zero materials transition:
Implications for global supply chains. July 2023.
---------------------------------------------------------------------------
Gold
By various processes that are customized to each of our precious
metals mines, Barrick produces a product called gold ``dore''
(pronounced ``door-A.''). Gold dore is a brick of gold about the size
of a loaf of bread. The dore, though relatively pure, is then sent to a
refinery where it is refined to 99.9% fine gold. The resulting gold
bullion is sold on a global market. While major uses of gold over
recent decades include use as a financial product to central banks,
ETF's and similar investment mechanisms, bullion investors, or in
jewelry, it is an increasingly important component of technologies that
are the foundation of modern life.
Like copper, gold is one of the primary metals used as a conductor
of electricity. All computers, cellphones, cars, and anything else that
runs on a chip contain some amount of gold. Because gold does not
corrode it is used in those connections where reliability and
durability are critical. Accordingly, gold is used in various
applications in spacecraft because of the extreme conditions
encountered in space along with limited ability to repair/replace
nonfunctioning wiring and equipment. The U.S. Space Force relies on it.
Our nation's advanced weapons systems all use chips and therefore all
use gold.
Gold is also increasingly used in cutting edge battery and fuel
cell research and production because in certain alloy configurations it
has been found to enhance battery life. Gold is used in medical
technology, not just in instruments and dental applications, but in new
nano-procedures for early detection and treatment of diseases,
including cancer. Finally, advanced computing technologies, such as
quantum computing and artificial intelligence, do and will continue to
rely on gold in chips for superior conductivity, reliability, and
durability.
Copper and Gold as National Security Assets
As surveyed above, both copper and gold have critical uses in
defense, computing, and aerospace technology, making them important as
national security assets. Although gold bullion is sold on global
markets, the domestic gold mining industry is an advantage and benefit
to the United States. The U.S. is the fifth largest global producer,
behind China, Australia, Russia, and Canada, and the Nevada Gold Mines
complex in northern Nevada is the largest gold-mining complex in the
world. In an emergency, the U.S. would be able to produce enough gold
to meet defense and other demands.
The U.S. also has significant copper reserves, but the difficulty
in permitting new copper mines, along with the predicted dramatic
increase in global demand, should be a warning signal to U.S.
policymakers. As copper demand rises for energy transition, economic
growth, and other needs, competition for global supplies will increase,
along with prices. The U.S. needs its own domestic copper supplies.
I am not an expert with respect to why, when, and how much gold
central banks buy and hold to support their currencies and economies.
However, I can say that historically, gold has functioned as a currency
and a store of wealth, and nations--including the U.S.--continue to own
gold to support currencies. Despite currencies no longer being tied to
a gold standard, gold remains very attractive compared to other reserve
assets. It has no political risk, it cannot be debased, and it cannot
be talked down in a currency war of words. Gold is not subject to
cyber-attacks. Gold remains an important reserve asset--valued for its
performance in times of crisis, its long-term store of value, and lack
of default risk.
The current high gold prices--even as the U.S. economy grows and
stock markets reach all-time high values--speak to rising global
uncertainty about the future. As the U.S. Department of Commerce has
recognized, ``Economic security is national security.'' \9\ Being able
to produce such an important asset domestically in times of uncertainty
and when global markets might be disrupted is therefore obviously
important.
---------------------------------------------------------------------------
\9\ U.S. Department of Commerce, Strengthen U.S. Economic and
National Security, https://2017-2021.commerce.gov/about/strategic-plan/
strengthen-us-economic-and-national-security.html, last visited
February 19, 2024.
---------------------------------------------------------------------------
______
Mr. Graves [presiding]. Thank you. Our next witness is Mr.
Craig Mueller, who is the President and CEO of American
Gilsonite Company, and based out of Houston, Texas.
Mr. Mueller, you are recognized for 5 minutes.
STATEMENT OF CRAIG MUELLER, PRESIDENT AND CEO,
AMERICAN GILSONITE COMPANY, HOUSTON, TEXAS
Mr. Mueller. Thank you, Mr. Chairman, Ranking Member
Ocasio-Cortez, and distinguished members of the Committee. My
name is Craig Mueller. I am the CEO of American Gilsonite
Company, AGC for short. I appreciate the opportunity to testify
today, and I especially want to thank Congressman John Curtis,
who sponsored the bill I am here to discuss, along with three
of his delegation from Utah's Congressional Delegation who
joined him as original co-sponsors, Representatives Celeste
Maloy, Blakemore, and Burgess Owens.
AGC is one of two enterprises in the Uintah Basin of
northeastern Utah that produce a naturally occurring carbon-
based resin, an asphaltite called uintaite.
There are three types of asphaltites which differ mostly in
terms of their carbon and sulfur content, specific gravity, and
the temperature at which they soften. Apart from uintaite in
the United States, there are two lower-quality asphaltites:
grahamite, found in Argentina and other portions of the United
States; and glance pitch, which is found principally in Iran
and, to a lesser extent, Colombia.
Uintaite is unique, with its own chemical fingerprint that
distinguishes it from other asphaltites in lab testing. Its
strength, flexibility, extreme lightweight, and environmentally
friendly profile make it a superior additive in drilling fluids
and cementing applications, as well as improving performance
and quality in asphalt, inks, paints, stains, construction
materials, and foundry castings.
To fully appreciate the impetus behind H.R. 7004, a bit of
history is in order. In 1885, geologist William Phipps Blake
gave the asphaltite located in Utah its scientific name,
uintaite. The following year our company's namesake, Samuel
Gilson, began producing and selling uintaite. In 1895, the
company registered a trademark for the name Gilsonite with the
U.S. Patent Office. The company subsequently registered it in
Germany, the UK, Japan, Ireland, and Brazil, and we are careful
to keep our registrations current.
Later, in the wake of the 1970s energy crisis, America
sought to reduce its dependence on foreign oil. The nation
adopted a multi-faceted approach, including fossil fuel
alternatives. In 1976, the EPA stated there are no significant
existing or anticipated processes for the recovery of U.S. tar
sand hydrocarbon materials through at least the year 2000.
Nevertheless, in 1981, Congress amended the Mineral Leasing
Act through a bill titled, ``An Act to Facilitate and Encourage
the Production of Oil from Tar Sand and Other Hydrocarbon
Deposits.'' In the text of that bill, Congress mistakenly
aggregated uintaite with tar sand, and significantly dubbed it
lowercase ``gilsonite,'' minus the Circle-R symbol that
attaches to legally registered trademarks. Based on the
substance of naming history alone, Congress erred in using
Gilsonite generically for legislative purposes.
Here is why this is so important to American Gilsonite and
our clients. Foreign competitors have long been marketing
mineralogically similar but inferior asphaltites labeled as
Gilsonite. Unfortunately, the lowercase gilsonite in the MLA
encourages this trademark infringement. When AGC defends its
trademark in court, the company must overcome claims that
Gilsonite is a valid generic term for a range of asphaltites
that in truth are not identical in terms of their chemistry or
their performance.
It is important to note that the primary offender is the
nation of Iran. Iran produces glance pitch at a state-
subsidized cost and sells it abroad as Gilsonite, including in
the United States by trans-shipping product through countries
such as Turkey, India, and China, in violation of U.S.
sanctions. Given that a sizable portion of Iran's economy is
supported by its government, it is reasonable to suspect that
proceeds flow to Iranians' Revolutionary National Guard.
This bill simply corrects a 43-year-old legislative
drafting error by substituting the word ``asphaltite'' for the
word ``gilsonite.''
Mr. Chairman, we have worked with Customs and Border
Protection and the State Department, yet such products are
still finding their way into the United States. This simple
legislative change would allow AGC's efforts to defend its
trademark and allow for appropriate differentiation of the
different types of asphaltites. Continuing to litigate
``gilsonite'' imposes a financial burden on our company,
impacts employment, and distracts us from our mission of
providing a solid supply chain for our clients.
Thank you for the time today. I will be happy to answer any
questions the Committee may have.
[The prepared statement of Mr. Mueller follows:]
Prepared Statement of Craig Mueller, CEO, American Gilsonite Company
on H.R. 7004
Good morning, Mr. Chairman and distinguished members of the
Committee. My name is Craig Mueller, I am CEO of the American Gilsonite
Company, AGC for short.
I appreciate the opportunity to testify this morning, and I
especially want to thank Congressman John Curtis, who sponsored the
bill I am here to discuss, along with three of his colleagues from
Utah's congressional delegation who joined him as original co-sponsors:
Representatives Celeste Maloy, Blake Moore, and Burgess Owens.
AGC is one of two enterprises in the Uinta Basin of northeastern
Utah that produce a naturally occurring carbon--based resin, a type of
asphaltite called uintaite. There are three types of asphaltites, which
differ mostly in terms of their carbon and sulfur content, specific
gravity, and the temperatures at which they soften. Apart from uintaite
in the U.S., there are two lower quality asphaltites: grahamite found
in Argentina and portions of the U.S., and glance pitch, which is found
principally in Iran and to a lesser extent in Colombia.
Uintaite is unique, with its own chemical fingerprint that
distinguishes it from other types of asphaltite in lab testing. Its
strength, flexibility, extreme light weight and environmentally
friendly profile make it a superior additive in drilling fluids and
cementing applications, as well as improving performance and quality in
asphalt, inks, paints, stains, construction materials, and foundry
castings.
To fully appreciate the impetus behind H.R. 7004, a bit of history
is in order. In 1885, geologist William Phipps Blake gave the
asphaltite located in Utah its scientific name: uintaite. The following
year, our company's namesake, Samuel Gilson, began producing and
selling uintaite.
In 1895, the company registered a trademark for the name
Gilsonite' with the U.S. Patent Office. The company
subsequently registered it in Germany, the U.K., Japan, Ireland, and
Brazil, and we are careful to keep our registrations current.
Later, in the wake of the 1970s energy crisis, America sought to
reduce its dependence on foreign oil. The Nation adopted a multifaceted
approach, including fossil fuel alternatives.
In 1976, the EPA stated, ``There are no significant existing or
anticipated processes for the recovery of United States' tar sand
hydrocarbon materials'' through at least the year 2000. Nevertheless,
in 1981 Congress amended the Mineral Leasing Act through a bill titled,
``An Act to facilitate and encourage the production of oil from tar
sand and other hydrocarbon deposits.''
In the text of that bill, Congress mistakenly aggregated uintaite
with tar sand and, significantly, dubbed it lower-case ``gilsonite''
minus the Circle R symbol that attaches to legally registered
trademarks. Based on the substance's naming history alone, Congress
erred in using ``gilsonite'' generically for legislative purposes.
Here is why this is so important to AGC and our clients. Foreign
competitors have long been marketing mineralogically similar but
inferior asphaltites labeled as Gilsonite'. Unfortunately,
the lower-case ``gilsonite'' in the MLA encourages this trademark
infringement. When AGC defends its trademark in court, the company must
overcome claims that ``gilsonite'' is a valid generic name for a range
of asphaltites that in truth are not identical in terms of their
chemistry or their performance.
It is important to note that the primary offender is the nation of
Iran. Iran produces glance pitch at state-subsidized cost and sells it
abroad as ``gilsonite,'' including in the U.S. by transshipping product
through third-party countries like Turkey, India and China in violation
of U.S. sanctions. Given that a sizable portion of Iran's economy is
controlled by its government, it is reasonable to suspect that proceeds
flow to Iran's Islamic Revolutionary Guard.
This bill simply corrects a 43-year-old legislative drafting error
by substituting the word ``asphaltite'' for the word ``gilsonite.''
Mr. Chairman, we have worked with Customs and Border Protection and
the State Department, yet such product still finds its way into the
U.S. This simple legislative change would aid AGC's efforts to defend
our trademark and allow for appropriate differentiation of the
different types of asphaltites. Continuing to litigate ``gilsonite''
imposes a financial burden on our company, impacts employment, and
distracts us from our mission of maintaining a reliable supply chain
for our clients.
Thank you again for the opportunity to testify today. We look
forward to working with the Committee to ensure the bill's passage in
the House and Senate, and I would be happy to answer any questions the
Committee has at this time.
______
Mr. Stauber [presiding]. Thank you very much for your
testimony. Our next witness is Mr. Jeffrey Stiffarm, and he is
the President of the Fort Belknap Indian Community, and he is
stationed in Harlem, Montana.
Mr. Stiffarm, you are now recognized for 5 minutes.
STATEMENT OF JEFFREY STIFFARM, PRESIDENT, FORT
BELKNAP INDIAN COMMUNITY, HARLEM, MONTANA
Mr. Stiffarm. Good afternoon, everyone, and thank you for
your time and this honor to speak on behalf of our people back
at Fort Belknap.
Mr. Chairman and members of the Subcommittee of Energy and
Mineral Resources, my name is Jeffrey Stiffarm, and I am the
President of the Fort Belknap Community in central Montana. I
would like to talk about how hardrock mining has devastated the
Fort Belknap Reservation, and to illustrate this tribe's
opposition of the Mining Regulatory Clarity Act and vital need
for meaningful reform of the 1872 Mining Law to prevent what
happened to my people from happening to others.
The Fort Belknap Indian Reservation is the home of the Gros
Ventre and Assiniboine Tribes. To us, we call ourselves the
Aaniiih and the Nakoda people. Our reservation was established
and set aside for the Tribes' use by an Act of Congress in
1888. At the time, the Tribes received assurances from the U.S.
Government that we would retain our rights to all water
necessary to fulfill the purposes of the reservation, including
waters originating from the Little Rocky Mountains that the
tribal members used for irrigation, domestic supplies, and
other purposes.
The original Fort Belknap Reservation included the Little
Rocky Mountains, which are considered sacred by the Tribe's
members, and were traditionally used by tribes for hunting,
fishing, culture, and spiritual purposes. When gold was
discovered in the Little Rockies in the 1880s, the Federal
Government pressured our tribes to cede the gold-bearing areas
of the reservation to the United States. Congress carved out
the Little Rocky Mountains from the reservation boundaries in
1896.
[Slide.]
Mr. Stiffarm. As you can see on our map on the southern
border, that little notch, that is what we call the Grinnell
Notch. That was taken from our people in 1896. And the reason
why our ancestors gave that up was there was threat of
starvation of our people. That is where gold was found.
A Canadian-owned mining company, Pegasus Gold, filed claims
on these lands. Two modern cyanide leach gold mines were
approved and operated on these lands under BLM-approved plans
of operations from 1981 to 2003. At its largest, the mining
complex covered over 1,200 acres. The Zortman and Landusky mine
sites are surrounded on three sides by the Fort Belknap
Reservation, and sits at the headwaters of many creeks that
eventually flow through the reservation. Leaching at the
Zortman and Landusky mines resulted in vast amounts of acid
mine drainage that contaminate the water supply that supports
the Fort Belknap community and the town of Zortman.
[Slide.]
Mr. Stiffarm. As you can see in this next picture, the acid
drainage from the mining, you can tell by the color of the
water. And it is like that, and all that drainage is down into
our reservation and into our towns and our homes. That caused a
lot of sickness. We live with cancer, it causes a high rate of
autism in our children.
We had some grassroots community members called protectors
and Red Thunder back in the 1970s and 1980s fighting these
mines. And here we are today, in 2024, still doing the same
thing and fighting for our rights, for our lives, for our
people.
This mining drainage on that first map we showed you, you
saw the watershed where the water drained onto the reservation
directly coming from the Little Rocky Mountains and where the
mines were.
[Slide.]
Mr. Stiffarm. On this last picture, if you can put it up,
please, that is the picture of our Sundance grounds. And to our
people, that is the highest ceremony for us. It is like the
Catholic cathedral. That is Mother Earth. And you can see in
the front of that picture there, that orange, that is a
creekbed running from the mines, acid tailings. And you can see
the color of the rock.
Now, imagine that in your backyard, your homes, and your
communities where you live, where you raise your children, or
your grandchildren are going to live. Would you allow that? I
think not. But that is what is happening to our people at Fort
Belknap, and we have been living in that for generations.
I thank you for your time, and I look forward to your
questions.
[Speaking Native language.]
[The prepared statement of Mr. Stiffarm follows:]
Prepared Statement of Jeffrey Stiffarm, President, Fort Belknap
Indian Community
on H.R. 2925 and H.R. 6862
I. Introduction
Mr. Chairman and Members of the Subcommittee on Energy and Mineral
Resources, thank you for the opportunity to testify before you. My name
is Jeffrey Stiffarm, and I am the President of the Fort Belknap Indian
Community in Central Montana. I'd like to talk about how hard rock
mining has devastated the Fort Belknap Reservation to illustrate the
Tribes' opposition to the Mining Regulatory Clarity Act and the vital
need for meaningful reform of the 1872 Mining Law to prevent what
happened to my people from happening to others.
II. History of Mining in the Little Rocky Mountains
The Fort Belknap Indian Reservation is home to the Gros Ventre and
Assiniboine Tribes. Our Reservation was established and set aside for
the Tribes' use by an Act of Congress in 1888.\1\
---------------------------------------------------------------------------
\1\ 25 Stat. 113 (May 1, 1888).
---------------------------------------------------------------------------
At that time, the Tribes received assurances from the United States
government that we would retain our rights to all water necessary to
fulfill the purposes of the Reservation, including waters originating
in the Little Rocky Mountains that Tribal members used for irrigation,
domestic supplies, and other purposes.\2\
---------------------------------------------------------------------------
\2\ See Gros Ventre Tribe v. United States, 469 F.3d 801, 804-05
(9th Cir. 2006); see also Winters v. United States, 207 U.S. 564, 567,
576 (1908) (recognizing Tribes' right to all waters flowing to and
entering Reservation lands, ``undiminished in quantity and
undeteriorated in quality'').
---------------------------------------------------------------------------
The original Fort Belknap Reservation included the Little Rocky
Mountains, which are considered sacred by Tribal members, and were
traditionally used by the Tribes for hunting, fishing, cultural, and
spiritual purposes.
When gold was discovered in the Little Rockies in the 1880s, the
federal government pressured our Tribes to cede the gold-bearing areas
of the Reservation to the United States. Congress carved out the Little
Rocky Mountains from the Reservation's boundaries in 1896.\3\
---------------------------------------------------------------------------
\3\ 29 Stat. 350 (1896).
---------------------------------------------------------------------------
A Canadian owned mining company, Pegasus Gold, filed claims on
these lands and two modern cyanide leach gold mines were approved, and
operated on these lands under BLM-approved Plans of Operations from
1981-2003.\4\ At its largest, the Zortman-Landusky mining complex
covered over 1,200 acres.
---------------------------------------------------------------------------
\4\ U.S. Bureau of Land Management, Action Memorandum for Water
Management at the Zortman And Landusky Mines, Non Time-Critical Removal
Actions, Malta Field Office, Bureau of Land Management, Phillips
County, Montana. September 2006.
---------------------------------------------------------------------------
III. The Contamination
The Zortman and Landusky mine sites are surrounded on three sides
by the Fort Belknap Reservation and sit at the headwaters for many
creeks that eventually flow through the Reservation.
Heap leaching at the Zortman-Landusky mines resulted in vast
amounts of acid mine drainage that contaminated the water supply that
supports the Fort Belknap Indian Community and the Town of Zortman.\5\
---------------------------------------------------------------------------
\5\ Montana Department of Environmental Quality v. Luke Ployhar
Blue Arc LLC. et al., Case No. DV-2023-10. April 18, 2023. Finding of
Fact, p. 3.
---------------------------------------------------------------------------
In fact, the Tribes are facing permanent surface and groundwater
contamination and continue to suffer from multiple devastating and
lasting harms to the Tribes' beneficial uses, including impairment of
drinking water, fish and wildlife habitat, recreation, agricultural,
and industrial uses.\6\ Acid mine drainage has likewise resulted in
public health risks and continues to threaten the Tribes' powwow
grounds, ceremonial and sacred sites, including other areas of cultural
significance.
---------------------------------------------------------------------------
\6\ Montana Department of Environmental Quality, Landusky Metals
Total Maximum Daily Loads and Framework Water Quality Improvement Plan,
March 2012, Available at: https://deq.mt.gov/files/water/wqpb/CWAIC/
TMDL/M31-TMDL-01a.pdf
---------------------------------------------------------------------------
IV. Continued Contamination and Threats from New Mining
As stated by the U.S. District Court for Montana, ``[i]t is
undisputed that the Zortman-Landusky mines have devastated portions of
the Little Rockies, and will have effects on the surrounding area,
including the Fort Belknap Reservation, for generations. That
devastation, and the resulting impact on tribal culture, cannot be
overstated.'' \7\
---------------------------------------------------------------------------
\7\ Gros Ventre Tribe, et al. v. United States, et al., No. CV 00-
69-M-DWM, slip op. at 12 (D. Mont. June 28, 2004).
---------------------------------------------------------------------------
After Pegasus Gold declared bankruptcy, the mine was designated a
CERCLA site under the Superfund program.\8\ On October 5, 2000, the
Interior Secretary issued Public Land Order (PLO) 7464 withdrawing
approximately 3,500 acres from new mine claims in order to facilitate
CERCLA (Superfund) cleanup.\9\ Since then, state and federal agencies
have contributed tens of millions of dollars for reclamation and water
treatment at the site, and the BLM estimates that an additional $2.2
million will be needed every year for water treatment for the
foreseeable future.\10\
---------------------------------------------------------------------------
\8\ U.S. Bureau of Land Management, Action Memorandum for Water
Management at the Zortman And Landusky Mines, Non Time-Critical Removal
Actions, Malta Field Office, Bureau of Land Management, Phillips
County, Montana. September 2006.
\9\ Please see PLO 7464 (65 FR 59463, Oct. 5., 2000) The Secretary
has subsequently extended this mineral withdrawal in PLOs 7643, 7753,
and 7841.
\10\ U.S. Bureau of Land Management, Press Release, Withdrawal
Established to Protect Zortman Landusky Mine Reclamation Site,
September 9, 2022. Available at: https://www.blm.gov/press-release/
withdrawal-established-protect-zortman-landusky-mine-reclamation-site
---------------------------------------------------------------------------
In order to continue the ongoing reclamation work, the BLM
continued to establish mineral withdrawals to prevent new mining
activities that could interfere with that work.\11\ Unfortunately, a 2-
day lapse in the mineral withdrawal renewal resulted in ten new mining
claims being staked on BLM lands within the Zortman Landusky
Reclamation Area \12\--jeopardizing the enormous investment in existing
and ongoing reclamation work.
---------------------------------------------------------------------------
\11\ Id.
\12\ Specifically, reclamation efforts within the Zortman-Landusky
Reclamation Area were jeopardized by the Department of Interior's
failure to maintain the mineral withdrawal protections between the
expiration of PLO 7464 on October 4, 2020 and the segregation of lands
under this proposed mineral withdrawal on October 7, 2020. This 48-hour
lapse in protection allowed 10 mining claims to be staked on October 5,
2020 by Luke Ployhar/Blue Arc LLC on BLM lands within the mineral
withdrawal boundaries.
---------------------------------------------------------------------------
The owner of the company that staked the new claims, Blue Arc LLC,
is currently the subject of an enforcement action by the State of
Montana for alleged illegal exploration activities on other nearby
lands.\13\
---------------------------------------------------------------------------
\13\ See Montana DEQ, Violation Letter #VLHRM20220330-00071 to Luke
Ployhar/Blue Arc LLC, April 1, 2022 (The Montana Department of
Environmental Quality recently issued notices of violations against
Luke Ployhar/Blue Arc LLC for allegedly conducting exploration and
mining activities at seven locations in Township 25N, Range 25E,
Section 7 without a permit. The disturbance associated with these
unpermitted and unbonded mining activities contributes further to the
degradation of the reclamation efforts in the Zortman Landusky
Reclamation Area.) Montana DEQ subsequently filed a request for a
preliminary injunction to allow DEQ to reclaim the disturbed lands to
prevent any additional infiltration of groundwater into the water
treatment system and previously reclaimed areas . . . This order was
issued in Phillips County District Court case DV-2023-10 (August 2023)
---------------------------------------------------------------------------
Under existing law, Blue Arc would not be able to move forward with
a plan of operations on its mining claims within the mineral withdrawal
without demonstrating that it has valid claims.\14\ If the Mining
Regulatory Clarity Act were law, however, these claims would
automatically be considered a ``valid existing right,'' which would
establish a vested property right here and on mining claims on all
federal public lands. This would interfere with the US Government's
cleanup here, and come at the expense of protecting Tribal,
environmental, and natural resources across the West.
---------------------------------------------------------------------------
\14\ The withdrawal of federal lands from mineral exploration and
development does not apply to claimants with ``valid existing rights''
on mining claims previously located on the segregated lands. However,
existing mining claims on lands going through the withdrawal process
must be valid in order for the claim to be exempt from the segregative
effects of a withdrawal notice. 43 C.F.R. Sec. 2091.0-7. As BLM
regulations currently state: ``After the date on which the lands are
withdrawn from appropriation under the mining laws, BLM will not
approve a plan of operations or allow notice-level operations to
proceed until BLM has prepared a mineral examination report to
determine whether the mining claim was valid before the withdrawal, and
whether it remains valid.'' 43 C.F.R. Sec. 3809.100(a).
---------------------------------------------------------------------------
This is a public health and safety threat of the highest magnitude.
Future exploration or mining activities at the site not only threatens
the health and welfare of tribal members and tens of millions in CERCLA
clean-up work, it threatens to further desecrate sacred tribal land,
including the potential to disturb the graves of relatives and
ancestors of tribal members.
The 1872 Mining Law is an outdated law that has failed to protect
communities like mine. It's hard to believe that Congress is
considering legislation today that would make this law worse. The 1872
Mining Law must be reformed to better protect communities and Tribes,
such as the legislation outlined in the Clean Energy Mineral Reform
Act, introduced by Senator Heinrich and Congressman Grijalva.\15\
---------------------------------------------------------------------------
\15\ https://democrats-naturalresources.house.gov/media/press-
releases/ranking-member-grijalva-sen-heinrich-introduce-mining-reform-
legislation-to-protect-communities-tribal-consultation-and-environment-
---------------------------------------------------------------------------
V. Closing
The water is flowing orange from acid mine drainage. The events at
the Fort Belknap Indian Community are not unique. Other such scenarios
exist and more will occur in the future if the 1872 Mining Clarity
Regulatory Act is passed. And it won't just affect Indian Country. Our
planet is in a vulnerable state. Unsubstantiated claims cannot be
allowed.
Reform of U.S. mining laws must include meaningful consultation
with Tribes and also the ability to say ``no'' to mines that would harm
other important land uses. It cannot allow mining companies to trample
communities and Indigenous rights by allowing a company to stake an
indefinite number of claims and allow that company to move forward with
activities on those claims without any demonstration that there are
even valuable minerals there.
The Fort Belknap Tribes appreciate the opportunity to testify today
against the Mining Regulatory Clarity Act, and to urge support for
meaningful reform of the 1872 Mining Law.
VI. President Stiffarm's Press Quote In Full
The Fort Belknap Indian Community opposes the Mining Regulatory
Clarity Act. The Gros Ventre and Assiniboine Tribes have been directly
affected by mining atrocities and to this day, suffer the harmful
effects of mining under the 1872 Mining Law. The Mining Regulatory
Clarity Act would make this outdated law worse by allowing mining
companies, including foreign-owned companies, to dispose of mine waste
on public lands without demonstrating that the companies hold valid
claims. The Fort Belknap Indian Community faces permanent surface and
groundwater contamination from decades of hard rock mining in the
Little Rocky Mountains on and adjacent to the Fort Belknap Reservation
and continues to suffer from multiple devastating and lasting harms to
the Tribes' beneficial uses, including impairment of drinking water,
fish and wildlife habitat, recreation, agricultural, and industrial
uses.
We urge Congress to reject legislative proposals that make this
colonial-era law worse, and to move forward with meaningful reform of
the 1872 Mining law as outlined in the Clean Energy Mineral Reform Act,
introduced by Senator Heinrich and Congressman Grijalva.
*****
When Science Wins
For more than 20 years, researchers at Aaniiih Nakoda College and the
Fort Belknap Reservation's Environmental Protection Department have
worked to document the harm done by an abandoned gold mine adjacent to
the reservation. Their findings are now helping block efforts to
restart exploration within the mine site.
By Paul Boyer
Native Science Report
May 31, 2022
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
South Big Horn Creek, which flows from the Zortman and Landusky
Mines onto the reservation, is stained red from acid mine drainage.
Aaniiih Nakoda College researchers found that the water was no longer
able to support life. Photo courtesy of Aaniiih Nakoda College
For decades, a massive open pit gold mine on the southern border of the
Fort Belknap Reservation of Montana methodically transformed a forested
mountain landscape sacred to the Aaniiih and Nakoda people into a
moonscape of craters and crushed rock. Highly acidic water, tainted by
cyanide used to extract particles of gold and silver from ore, flowed
down the mountains and onto reservation land, turning streams red and
killing aquatic life.
The Zortman and Landusky Mines closed in 1997 when the value of gold
dropped and Pegasus Gold Corp, its parent company, went bankrupt, but
the damage remains and may be irreparable. Declared a federal Superfund
site, millions of dollars are spent every year by the state of Montana
to treat polluted water draining out of abandoned pits and leach
fields. Experts say this work will continue ``in perpetuity,'' meaning,
for all practical purposes, forever.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
One of two water treatment plants constructed to neutralize
acidic water draining from the mine. Because there is no way to stop
the exposed rock from generating acidic runoff, mitigation must
continue around the clock and ``in perpetuity.'' Photo by Paul Boyer
But the urge to squeeze profit from the land, despite its grim history
and lasting harm, also remains. An effort is now underway to restart
exploration and potentially renew mining on privately owned land within
the mine's boundaries and a short distance from the tanks, pipes,
containment ponds and water treatment plant working around the clock to
mitigate the damage already done.
This incongruous turn of events was triggered by a seemingly small
bureaucratic oversight when, in 2020, a five-year federal moratorium on
issuing mining claims expired 48 hours before a new moratorium, also
known as a ``mineral withdrawal,'' was issued. During this two-day gap,
according to a 2021 complaint filed by the Fort Belknap Indian
Community and several conservation groups, ten claims were filed in the
Zortman Landusky Reclamation Area by Blue Arc LLC, a mining exploration
company owned by Luke Ployhar, who purchased mine claims totaling over
1,000 acres after Pegasus declared bankruptcy.
At first, it looked like Montana's Department of Environmental Quality
would give the green light to Blue Arc's proposal to dig an exploratory
trench in anticipation of renewed mining. That's what many community
members expected. Between 1979 and the mid 1990s, state and federal
regulators approved eleven requests to expand mining operations with
only minimal environmental review. These expansions happened despite
strong opposition from the Fort Belknap Community.
But then something unexpected happened: In the wake of a public meeting
held on January 4, 2022, the DEQ announced that it would require
additional analysis of Blue Arc's request, citing strong community
opposition and what it called ``conflicting evidence from credible and
potentially expert sources.''
``This evidence raises substantial questions regarding whether
significant impacts could occur to historical, archeological, social
and cultural resources as a result of the proposed actions,'' according
to a DEQ statement. ``Based on the current information before us, DEQ
cannot say with certainty that potentially significant impacts do not
exist.''
To say that the tribe and other mine opponents were surprised by this
favorable ruling is putting it mildly. As a story in the Havre Daily
News put it, ``this decision came as a shock to many on Fort
Belknap''--not simply because the project was at least temporarily
blocked, but because tribal members were heard, and their arguments
carried weight. Perhaps for the first time, they were called a
``credible'' and ``potentially expert'' source of information by an
agency that many tribal activists had long viewed as their adversary.
Of course, the battle is not yet won, but this particular victory is
evidence, some say, of the tribes' growing capacity to fight back.
Initially, the Fort Belknap Community, constrained by limited
resources, relied on the work of local environmental groups, recalled
tribal Environmental Manager Ina Nez Perce. ``They were fighting the
fight,'' she said, but it was a lopsided battle against what was, for a
time, the world's largest cyanide heap leach mine.
In the early 1990s, however, the work of citizen-activists was
strengthened by leadership from the tribal government, Nez Perce said.
The tribes' environmental protection office now has more staff and
resources to monitor water quality and habitat conditions, and elected
officials are also vocal advocates for the reservation's water quality
and water rights.
But essential to this activism and political leadership is the growing
research capacity of Aaniiih Nakoda College, the local tribal college,
which has been gathering data on water quality for over 20 years and
recently established, with $3.5 million in funding from the National
Science Foundation, the interdisciplinary Nic?-Mni (Water) Center to
expand its research and share findings through an annual forum. Data
collected by STEM faculty and Nic?-Mni staff provide compelling
evidence of ongoing environmental damage to waterways, groundwater and
ecological systems.
In a statement provided to the Daily Montanan following the DEQ ruling,
Luke Ployhar, owner of Blue Arc, appeared to argue that the Zortman and
Landusky Mines had not impacted tribal watershed, asserting, ``Any and
all claims by the Tribes of bad water extending onto their lands is a
blatant falsehood. The water treatment facilities put in place by
Pegasus Mining are able to capture and contain and process any
historical elevated acidic waters.''
In fact, data collected by the college paints a very different story.
Examining water from streams flowing out of the mine's land and onto
the reservation, tribal and college scientists have filled boxes with
evidence documenting significant damage to several key waterways.
A paper coauthored by college scientists and students in the natural
resources program, recently published in the White Clay and Nakoda
Circle Speaker Environmental Newsletter, summarized findings from a
years-long aquatic study managed by the college's EPA-funded Water
Laboratory, a research program that predates the new Water Center.
Purposefully following EPA procedures and protocols so that findings
could be presented in court, the study found significant damage to key
waterways, even years after mining ended.
King Creek, which has its headwaters in the mine, ``remains a severely
impacted drainage,'' according to the paper. Another stream, Swift
Gulch, ``has been totally disrupted by mining activity and reclamation
efforts.''
``With extensive field and laboratory studies we found that the
contamination from the mine, as it continues toward the reservation, is
rapidly moving downstream with rain or storm events,'' the paper
reported, turning the water in some creeks bright red. Tailings and
sediment collected along the drainages of these and other creeks found
``heavy metal contamination with some exceeding health levels allowed
in surface water.''
``We have the water quality data to back up that water coming onto the
reservation is impacted,'' said Mitchell Healy, the tribes' water
quality coordinator, who holds an associate degree in natural resources
from Aaniiih Nakoda College and a master's degree in environmental
management from the University of Maryland University College. ``It's
from the mines. It's obvious. There are no ifs, ands or buts about
it.''
Additionally, data collected by Aaniiih Nakoda College faculty member
Dan Kinsey and natural resource students also document the impact of
polluted water on invertebrate life. Using fine-mesh kick nets to
collect larvae and insects from several streams, he and the students
report that most impacted streams are nearly lifeless.
``All of those drainages are polluted,'' said retired faculty member
Liz McClain, summarizing findings from the accumulating data at the
January 4 public meeting. ``And the water is so polluted nothing will
live in it.''
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Aaniiih Nakoda College faculty member Dan Kinsey (right) with
students Teeha Roberts, Doug Anderson and Tia Zander collecting
macroinvertebrates from North Fork of Little People's Creek.
Researchers also investigated the mine's impact on the larger
ecosystem, including land that has been ``reclaimed.'' Before mining,
the mountainous region was forested and supported a rich variety of
animal and plant life, with equally complex microbial life in the
topsoil. Mining stripped away the soil, leaving deep cavities and acres
of bare ground and crushed rock.
Much of this remains, but some parts have been covered with dirt and
planted with grass, reflecting a long-standing approach to land
reclamation that focuses more on covering an eyesore than on restoring
a habitat. While this work softened the edges of excavated cavities,
research conducted between 2002 and 2006 by Water Lab personnel,
supported by funding from the USDA Tribal Colleges Research Grants
Program and carried out in partnership with restoration ecologists at
the University of Wyoming, found that soil in these reclaimed regions
cannot break down organic matter as efficiently as soil in undisturbed
parts of the surrounding mountains.
Analysis of two test sites found that soil contained ``minimal levels
of organic matter needed to support microbial activity as well as
sustain plant growth and nutrient recycling,'' compared with
undisturbed test sites, according to a paper published in Circle
Speaker. College scientists caution that it is important to continue
monitoring the soil to better understand the process of regeneration,
but their work provides more evidence that the mine's harm is systemic,
long term, and may require many years--possibly generations--to restore
what was lost.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
A view into the Landusky mine pit. Collectively, the Zortman
and Landusky Mines encompass 1,200 acres of land that formerly belonged
to the Fort Belknap Reservation. Photo by Paul Boyer
This evidence, combined with a history of mistrust toward state and
federal officials, is shaping the response to the proposed exploration.
State DEQ officials, speaking at the January 4 public meeting, argued
that Luke Ployhar was only requesting approval for a relatively small
exploratory trench. Tribal leaders and state environmental
organizations who spoke at the meeting rejected this reassurance.
To insist that the proposal is only about a trench the size of a city
bus and will have no environmental impacts ``only serves the purpose of
ignoring reality,'' said Derf Johnson, a staff attorney with the
Montana Environmental Information Center. ``Mining exploration leads to
mining. It's the first step in what could be a whole range of
activities and impacts.''
Multiple speakers also emphasized what they characterized as the DEQ's
track record of minimizing potential risk, inadequately investigating
the damage done and failing to seek input from the tribe.
``Fort Belknap opposes this new mining permit that you guys are looking
at for Luke Ployhar, based on the fact that, first of all, you guys
didn't consult the Tribes,'' asserted Fort Belknap Community Tribal
President Jeff Stiffarm. The only time that you did consult the Tribes
was when we filed a lawsuit against you guys for not following your
laws.''
Stiffarm also pressed the DEQ officials to explain how Ployhar was able
to complete and submit all of the paperwork required for approval of
excavation during the brief 48-hour gap in the moratorium. ``Maybe it
was you guys that notified Mr. Ployhar about this two-day window,''
Stiffarm said. ``There's a lot of unanswered questions that you guys
are not answering for us.''
At a deeper level, opposition to mining is guided by the spiritual
significance of the Little Rocky Mountains, which are known,
respectively, as Bii0 oto? (Fur Cap) and Jyahe wida (Island) Mountains
by the Aaniiih and Nakoda nations.
``These mountains are our churches,'' Stiffarm said. ``That's how
sacred they are to us.''
In his statement made following the DEQ's decision, Luke Ployhar
charged that the Fort Belknap Community opposes his bid only because
the tribes want to profit from the land. ``Make no mistake, the tribes
are interested in this area due to its significant economic
possibilities and not cultural heritage.''
It's a claim strenuously rejected by tribal members fighting renewed
mining.
``Mr. Ployhar is mistaken, President Stiffarm said. ``The Aaniiih and
Nakoda people have zero interest in any more gold mining on or near our
reservation . . . For years, we bathed in and ingested the chemical
remnants of more than a century of gold mining. We are now continuously
fighting to clean up and restore the safety of the waters flowing to
our permanent homeland.''
The land where the mine now sits was originally part of the
reservation, but sold to the federal government when prospectors
discovered gold in the late 19th century. The acreage removed from
tribal lands, known as the Grinnell Notch, is named after George Bird
Grinnell, the federal government's negotiator, who, many tribal members
say, coerced tribal leaders into relinquishing the land.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The North Fork of Little People's Creek, which is not impacted
by mining, is used by college researchers as a control site. This is
what all reservation streams should look like. Photo courtesy of
Aaniiih Nakoda College.
Fort Belknap Community Environmental Manager Ina Nez Perce said it is
her hope--one shared by many--that the land will be returned to the
tribes and that, to the greatest extent possible, the damaged landscape
will be restored and returned to its traditional cultural and spiritual
uses.
The land is usable, she agreed--but not for mining. ``That's out of the
question.''
For decades, the tribes had only limited ability to fight mining
companies and their allies in government. The finding from the state
DEQ, which acknowledges credible opposition to the planned exploration,
suggests that a new era of empowerment is emerging, led by the
continuing work of community activists, tribal leadership, and the
growing research capacity of both Aaniiih Nakoda College and the tribal
environmental protection office.
Even if mining companies and state officials don't understand the
cultural significance, said retired science faculty member Liz McClain,
``science can beat them.''
______
Mr. Stauber. Thank you for your testimony.
And our final witness today is Dr. John Metesh, and he is
the President of the Association of American State Geologists
and is stationed in Butte, Montana.
Dr. Metesh, you are now recognized for 5 minutes.
STATEMENT OF JOHN J. METESH, PRESIDENT, ASSOCIATION
OF AMERICAN STATE GEOLOGISTS, BUTTE, MONTANA
Dr. Metesh. Chairman Stauber and members of the
Subcommittee, thank you for the invitation to testify on H.R.
7003.
My name is John Metesh. I am the Montana State Geologist
and Director of the Montana Bureau of Mines and Geology. I am
testifying today as President of the Association of American
State Geologists. AASG represents the directors and state
geological surveys in 50 states and Puerto Rico.
The responsibility of each state survey varies depending on
legislation and traditions, but most function as an information
source for government and society on geology as it relates to
water, energy development, mineral development, and geologic
hazards, including, of course, landslides.
The sobering fact about landslides is that the geologic
conditions under which they occur have been in place for
millennia, or eons. The geologic structure that is the type of
rock to make up the layers, their weaknesses, fractures,
porosity that provides a pathway for water to infiltrate and
flow between weak and strong layers, the slope in the hillside,
the state of erosion from stream action along the base of the
hill have all been in place waiting for a trigger.
And triggering events are familiar. Rain or snowmelt in
excess of normal, forest and wildland fires that strip
vegetation and roots and alter the soil, and earthquake just
strong enough to finally break the bond between layers of rock,
or even one too many passes with a Caterpillar at the base of a
hill, or a combination of all the above.
As the sponsor mentioned, March 2024 will mark the 10th
anniversary of the Oso landslide in northeast Washington State,
the deadliest landslide in U.S. history. Heavy rainfall in the
previous month triggered a slide that moved 70 million cubic
feet, blocking the Stillaguamish River, destroying access
roads, and tragically resulted in the death of 43 people and
upending the community.
August 2024 will mark the 65th anniversary of the famous
Madison Slide just outside Yellowstone Park in Montana. The
trigger in this case was a larger-than-normal earthquake that
caused nearly 1 billion cubic feet of rock to slide off the
mountain, bury the Madison River, and flow hundreds of yards
uphill on the opposite side of the valley. Twenty-six campers
were buried in moments. Nineteen were never recovered. Three
more people were lost in rockfalls and other landslides up the
valley, another 250 were stranded.
The Landslide Preparedness Act established two programs:
the National Landslide Hazard Reduction Program and the 3D
Elevation Program, both of which are especially important to
state surveys. Both programs have many important components,
but I will use my time to highlight some of those in which
state surveys have participated. In fact, the core program of
the Landslide Hazard Reduction Program includes mapping and
coordinating event response that has already fostered
partnerships between the U.S. Geological Survey and the state
surveys in Arizona, California, Colorado, Kentucky, North
Carolina, Oregon, and, of course, Washington. And these
partnerships are well on their way to developing strategy,
developing risk preparedness for their respective states.
The U.S. Landslide Inventory is an interactive map that
provides landslide data from all sources, especially state
surveys and USGS, and this is a crucial repository for new
landslide data nationwide.
The second program under the Landslide Preparedness Act is
the 3D Elevation Program, 3DEP. It also collects LiDAR data
that are used to create detailed digital images of the Earth's
surface with accuracy of centimeters. Its applications are
wide-ranging in geologic studies, but for mapping landslides is
a revolutionary tool. One of the best ways to assess risk of
landslides is to find old landslides, and LiDAR has been
instrumental in finding these features, even under dense
vegetation.
Chairman Stauber and members of the Subcommittee, for these
and many other reasons the Association of American State
Geologists fully supports H.R. 7003. Thank you for your time.
[The prepared statement of Dr. Metesh follows:]
Prepared Statement of John J. Metesh, President,
Association of American State Geologists,
and State Geologist and Director, Montana Bureau of Mines and Geology
on H.R. 7003
Chairman Stauber and other Members of the Subcommittee, thank you
for the invitation to testify on H.R. 7003, the National Landslide
Preparedness Act Reauthorization Act of 2024
My name is John Metesh. I am the Montana State Geologist and
Director of the Montana Bureau of Mines and Geology. I am testifying
today as President of the Association of American State Geologist
(AASG). AASG represents the directors of the state geological surveys
in all 50 states and Puerto Rico. The responsibilities of each state
survey vary, depending upon legislation and traditions. But most
function as an information source for government and society on geology
as it relates to water, energy development, mineral development, and
geologic hazards--including, of course, landslides.
The sobering fact about landslides is that the geologic conditions
under which they occur have been place for millennia or eons. The
geologic structure--that is, the type of rock that make up the layers
and their weakness, the fractures or porosity that provide pathways for
water to infiltrate and flow between weak and strong layers, the slope
of the hillside, the state of erosion from stream action along the base
of the hill have all been in place for centuries or millennia or eons--
waiting for a triggering event.
The triggering events are familiar: rain or snowmelt in excess of
normal, forest or wildland fires that strip vegetation and roots and
alter the soil, an earthquake just strong enough to finally break the
bond between layers of rock, or even one too many passes with a
caterpillar building a road at the base of a hill.
March 2024 will mark the 10th anniversary of the Oso landslide in
northeast Washington State--the deadliest landslide in US history.
Heavy rainfall in the previous months triggered a slide that moved 70
million cubic feet blocking the Stillaguamish River and destroying
access roads. This slide tragically resulted in the deaths of 43 people
and upended an entire community.
August 2024 will mark the 65th anniversary of the famous Madison
Slide just outside Yellowstone Park in Montana. The trigger--a larger
than normal earthquake--caused nearly 1 billion cubic feet of rock to
slide off the mountain, cross the Madison River, and flow hundreds of
yards uphill on the opposite side of the valley. Twenty-six campers
were buried in moments--19 were never recovered. Three more people were
lost in rock falls and other landslides up the valley. Another 250
people were stranded and required rescue by helicopter.
The Landslide Preparedness Act established two programs: the
National Landslide Hazards Reduction Program and the 3D Elevation
Program--both of which are especially important to state surveys. Both
programs have many important components, but I will use my time to
highlight some of those in which state surveys have participated.
In fact, the core activities of the Landslide Hazards Reduction
Program which include mapping and coordinating event response has
already fostered partnerships between the USGS and state surveys in AZ,
CA, CO, KY, NC, OR, and WA. These partnerships are well on their way to
developing strategy and risk preparedness for their respective states.
The US landslide inventory is an interactive map that provides
landslide data compiled from local, state, and federal agencies with
links to the original sources. The data come from maps and reports
published by state geologic surveys as well as the USGS. This will be a
crucial repository of new landslide data nationwide, while each survey
will be able to host their data on their own websites. These are the
data that will help state and local government assess risk and assist
in planning for development as well as preparedness.
Of course, AASG members look forward to participating in the
nascent grant program. The USGS and AASG members share many cooperative
funding efforts related to geology and groundwater. A new funding
opportunity for state surveys to support our efforts to map, report,
and assisting in preparedness is exciting--we look forward to the
pending announcement in FY24.
The second program under the National Landslide Preparedness Act is
the 3D Elevation Program, often referred to as 3DEP. This program
coordinates efforts of many state and Federal agencies to collect and
collate digital elevation data across the country. Digital Elevation
Models, or DEMs, or lately LiDAR, or Light Detection and Ranging, are
used to create detailed digital images of the earths surface with an
accuracy of centimeters. Its applications are wide ranging in geologic
studies, but for mapping landslides--it is a revolutionary tool. One of
the best ways to assess risk of landslides is to find old landslides
and LiDAR has been instrumental in finding such features--even under
dense vegetation.
Chairman Stauber and other Members of the Subcommittee, for these
and many other reasons, the Association of American State Geologists
fully supports H.R. 7003. Thank you for your time.
______
Questions Submitted for the Record to John J. Metesh, President,
Association of American State Geologists
Questions Submitted by Representative DelBene
Question 1. From the perspective of the Association of American
State Geologists, what are the key parts of the act that state
geological surveys would like to see implemented to make an immediate
impact on landslide hazard preparedness at the local level?
Answer. The following components of the act would have important
immediate impacts on landslide preparedness at the local level, in
order of priority to state surveys:
Section 3.e.1: Many states have begun landslide/geohazard
inventories in response to recent geohazards events; climate change as
well as housing and transportation development in hazard-prone areas
will likely increase the frequency of such events. The Cooperative
Landslide Hazard Mapping and Assessment Grant Program, when
implemented, will provide direct support to state geologic surveys to
map and compile a digital inventory of landslide hazards in each state.
The grant program funds will be matched by state funds--a model that
has proven very successful in other programs in the USGS (eg National
Cooperative Geologic Mapping Program).
Section 5.a.1: The 3D Elevation Program (``3DEP'') has proven to be
crucial to state geologic surveys; these data have greatly enhanced our
ability to map hydrologic features, seismic hazards/faults, aquifers,
and pre-historic landslides as well as probability assessment of new
landslides. Timely collection of Light Detection and Ranging (LiDAR)
data are critical for identification of new and immediate threats to
public safety. Of particular interest to state geologic surveys,
clarification that 3DEP is intended to include ongoing refresh and
improve resolution of 3D elevation data; repeated elevation surveys
document how the landscape is changing over time and will help identify
high-risk areas.
Section 3.b.5: Local emergency managers are reliant upon the
National Landslide Preparedness Act Debris Flow Early Warning System.
Large storm/large snowmelt events are becoming commonplace throughout
the western states; housing and transportation development is debris-
flow prone areas is increasing as is the need for early warning
systems. Similarly, wildland fires in upland areas require calibration
of post-fire debris flow models to regional climates to inform timely
evacuations.
______
Mr. Stauber. Thank you very much. I want to thank you all
for your testimony today.
The Chair will now recognize Members for 5 minutes of
questioning, and I will recognize myself for 5 minutes.
Dr. Feldgus, in your written testimony you argue that the
Mining Regulatory Clarity Act is unnecessary because the
Department of the Interior issued a Solicitor's Opinion in May
2023 that addressed the issue at hand in the Rosemont decision.
What would prevent this Administration or future
administrations from rescinding this opinion?
Dr. Feldgus. We think we have a number of options for
operators that are facing a similar situation to Rosemont, and
those options are laid out in the opinion, but they are not
purely dependent on the opinion. Those options would remain.
Mr. Stauber. Could another Solicitor in another
administration in the future change your opinion on that?
Dr. Feldgus. It is always possible.
Mr. Stauber. Yes. There is actually nothing stopping this
Administration or future administrations from rescinding the
Solicitor's Opinion. If the Solicitor's Opinion were rescinded,
would the issue at hand still be solved?
Dr. Feldgus. I think the different ways to resolve this in
the opinion would still be available to operators. What the
opinion does is lay it out very clearly for the operators and
for our field staff, so they know what those options are.
Mr. Stauber. I think, Dr. Feldgus, it is clear the issue
would not be solved without the opinion or enduring legislation
like the bill before us today. We would be right back to the
same problem without this legislation.
Mr. Haddock, I have heard that the Solicitor's Opinion
raises more concerns than it actually settles, and that it does
not provide the certainty that many operators need to move
forward with the exploration and, ultimately, development phase
of a domestic mining project. Would you like to expand upon
this and respond to Dr. Feldgus' testimony?
Mr. Haddock. There are a few ways that I will highlight
that it creates uncertainty.
The first is that it sets a standard for this validity
determination that the Rosemont litigants have already
indicated that they are going to challenge, that it does not
establish the bar as high as proving that the claim could be
patented and require that full mineral examination.
The alternatives that it creates are likewise untenable.
They are things like land exchanges, and we have seen how those
get litigated for decades before a project can be permitted. It
proposes the use of rights-of-way for the surface uses, and
that doesn't really accommodate some of the normal uses you
would have. And the regulations for rights-of-way are basically
static. The roads on a mine site have to change constantly as
the mine changes.
And like any other Solicitor's Opinion, it can be swept
away with a pen by a judge, and therefore it really doesn't
create any certainty at all.
Mr. Stauber. Yes, well said. Without a Rosemont fix in
place, we are effectively giving the Administration the
opportunity to shut down domestic mining, just like they did in
northeastern Minnesota. What is stopping them from rescinding
the Solicitor's Opinion in the future in order to shut down
mining activity? As Dr. Feldgus testified, there is nothing
holding them back.
And, frankly, we have seen this Administration go back on
their word time and time again. During the 2020 election, then-
candidate Biden told the American people we would mine,
process, and manufacture right here in the United States during
the time he was a candidate. Yet, during his time in office,
President Biden has pulled mineral leases, off-shored work to
countries using slave labor, and eliminated Buy American
protections in the IRA-referenced EV charging stations.
In a more recent example, consider the debt ceiling passed
by Congress just last year. Despite the President negotiating
and signing it into law, the permitting reforms, his
Administration is now blatantly disregarding the reforms
included. In fact, the Chair of the Council on Environmental
Quality testified before this Committee just last year that she
would not be taking into account the law of the land and
implementing the bipartisan reforms that were passed by
Congress and signed by the President. This Administration
cannot be trusted, and it especially cannot be trusted to
support domestic mining.
Mr. Haddock, can you explain to the Committee the process
of staking a claim, and what this entails, including
regulations and timelines claimholders must abide by, and the
consequences of not complying with these regulations, in 10
seconds?
[Laughter.]
Mr. Haddock. The land has to be open, you have to go out
and you have to post the land, as was indicated at the
beginning. You have to file a notice, you have to put the
notice on the claim, and you have to file your documents with
the BLM within 90 days and pay your fees. If you fail to do so,
there is no claim, it is void.
Mr. Stauber. Thank you very much. I will now turn it over
to Ranking Member Ocasio-Cortez for 5 minutes.
Ms. Ocasio-Cortez. Thank you so much, Chairman.
There have been some discussions about different
interpretations of what is proposed today, but we have the
Deputy Secretary right here, so we can just ask how the
interpretation would be administratively.
Dr. Feldgus, under this legislation, if I filed a mining
claim just before a national park was established, could I
potentially prevent that national park from being designated on
my claim?
Dr. Feldgus. Thank you for the question. I don't think you
could prevent the designation of a national park around your
claim, but you would have the right to use and occupy that
claim that you have staked.
Ms. Ocasio-Cortez. Thank you. And to reiterate, there are
about 1,100 active mining claims within national parks
presently. And under this legislation they would potentially
all be deemed valid.
Dr. Feldgus, if I built a house on my claim and told the
Federal Government that it was part of my mining operation,
panned for gold every once in a while, would that be allowed if
this law were to be passed?
Dr. Feldgus. It is very difficult to tell exactly what
would be allowed under this law, because it is a little bit
vague, and these rights under the law have not been tested in
court yet. But it would certainly be very time consuming and
expensive for the Federal Government to try to address a
situation like that.
Ms. Ocasio-Cortez. Thank you. And Dr. Feldgus, if I decided
I wanted to prevent a new solar farm, a wind project, or a
transmission line, and I filed a mining claim in the path of a
project before the renewable energy project secured their
rights of way, might I be able to stop or delay that project?
Dr. Feldgus. That is certainly a concern under the
legislation, yes.
Also, any other authorized use, whether it is grazing,
recreation, and so on would be at risk.
Ms. Ocasio-Cortez. Thank you. And if I wanted to file a
handful of these claims, known otherwise as ``nuisance
claims,'' might I be able to potentially extract large sums of
money from the Federal Government in exchange for giving up my
claim?
Dr. Feldgus. Yes, you would have probably a cause for a
takings claim against the Federal Government.
Ms. Ocasio-Cortez. Thank you. And if the government
suspected I was trying to use my mining claims to extract money
from other land users, or even proved that I was using the land
for something other than mining, would the Federal Government
be able to effectively invalidate my mining claim under this
proposal?
Dr. Feldgus. Not quickly or cheaply. It would take quite
some time.
Ms. Ocasio-Cortez. Interesting. You see, this bill includes
extremely broad definitions of what it means to ``use and
occupy land'' for ``mining-related activities.'' Almost
anything would be allowed or the argument could be made that it
is allowable, including dumping toxic mining waste, building
housing on a mining claim in a national park, or even just
claiming land to lock it up to make sure no one else can use
it.
Anyone, and I do mean anyone, you, me, a family member, a
foreign company through an American subsidiary, could gain
permanent rights to occupy claimed public land for just about
$10 per acre per year. It sounds like a deal.
I recognize that we will need some quantity of new minerals
to support the transition to clean energy. Nobody denies that.
But I believe with significant reforms and a whole-of-supply-
chain approach that maximizes efficiency and, importantly,
recycling, we can achieve our clean energy future in a way that
minimizes impact, protects tribal sovereignty, and supports
labor and, importantly, equity.
Unfortunately, the bills on the agenda today do not support
that path, but I look forward to us figuring out a way where we
can accommodate all of these needs.
With that, I yield back to the Chair. Thank you.
Mr. Stauber. Thank you very much. The Chair now recognizes
Representative Graves from Louisiana for 5 minutes.
Mr. Graves. Thank you, Mr. Chairman. I appreciate all of
you all being here today, and thank you for your testimony.
Dr. Feldgus, last time I looked, I think it was 2022, there
were 280 mining applications that were still in a process
backlog with the Department of the Interior. Do you know where
that stands now?
Dr. Feldgus. I don't have the backlog number on me right
now, I am sorry, the number of mines that we are currently
processing. But I will say we have approved 36 new mines in the
past 3 years.
Mr. Graves. Thirty-six in 3 years. OK, so 12 a year with
280 again in 2022 that had been stuck in backlog.
On Friday, the Administration announced that they were
going to effectively stop issuing export approval for liquefied
natural gas. Did you support that decision?
Dr. Feldgus. Well, I can't speak to that decision from
another department.
Mr. Graves. Well, I mean, it is exporting natural gas. It
is related to what you do, in terms of mineral production. Does
that sound like it makes sense?
Dr. Feldgus. We certainly process applications for gas
drilling permits and oil drilling permits as they come in. But
when it comes to what happens to that gas afterwards, that is
not the purview of the Department of the Interior.
Mr. Graves. Sure. Well, I guess I disagree because you
provide E&P approval, right?
Dr. Feldgus. Which approval?
Mr. Graves. E&P, exploration and production.
Dr. Feldgus. Oh, yes.
Mr. Graves. So, if you do that, why would you approve
something if you believe there is not demand for it?
Dr. Feldgus. Well, we approve permit applications as they
come in.
Mr. Graves. Actually, you don't, and that is the problem, I
think, where we are going right now.
[Chart.]
Mr. Graves. Dr. Feldgus, in 2022, 280 project backlogs, you
have said you have approved 36 of them. We have all seen this
chart, everybody has seen it, that shows the U.S. dependence
upon critical minerals. It is absolutely extraordinary. It is
not just the mining, it is also the processing and refining.
We have also seen predatory practices by countries like
China. For example, when a cobalt mine was approved in my
friend from Idaho's state, we saw this dumping of cobalt on
U.S. markets, dropping prices down significantly.
Have you all had any conversations with the Department of
Commerce about fair trade practices and ensuring that remedies
are in place to ensure the level playing field for U.S.
production?
Dr. Feldgus. Yes, absolutely. We are involved in a number
of interagency efforts as part of the Administration's all-of-
government approach to try to increase mineral security in the
United States.
Mr. Graves. So, you all are working with the Department of
Commerce to put tariffs or ensure a fair trade with the United
States and other countries in regard to----
Dr. Feldgus. We are not involved in tariff policy, but we
are involved in discussions about supply chains and other
critical mineral issues.
Mr. Graves. Dr. Feldgus, this Administration has this
policy of we are just going to not do anything. We are not
going to approve mines, we are not going to allow for the
export of liquefied natural gas, with this imaginary outcome
being that there is not going to be demand for those things.
What we are seeing is the exact opposite. We are seeing, as
our allies across the world are asking for more of our
liquefied natural gas, they don't have to get it from Iran,
they don't have to get it from Russia and other producers.
So, what we are seeing out of the Administration, it is
consistent in that we are not approving projects that would
actually improve our security, we are not carrying out policies
that would be compatible with the data. For example, the fact
that the Department of Energy shows there is going to be a 57
percent global demand increase for natural gas between now and
2050, why wouldn't we want to meet that demand? It doesn't make
sense.
And, similarly, if you take the Biden administration's
policies and what they are trying to do, the objectives they
are trying to hit on electric vehicles, on renewable energy
generation and deployment, you don't have anything close to the
critical minerals that are required.
Look at what happened to our friends in Europe when they
were dependent upon Russia for energy. Look at what happened to
them. They effectively paid for themselves to be attacked. Look
at what is happening when this Administration is carrying out
awful energy policies to where Iran has profited to the tune of
$60 billion. And now we have our own troops that are dead
because of the attack in Jordan. We are having our own ships
that are being shot at. And we effectively have paid for it by
bad energy policy and giving Iran $60 billion that they are
turning around and giving to their proxies.
So, Dr. Feldgus, what we are seeing right now is the same
thing. We are seeing policies that are being carried out that
are actually rewarding countries like China that are coming out
and using those resources to challenge U.S. assets and
interests all over the world. It doesn't make sense and it is
not compatible with your own Biden administration's policies or
objectives on EV deployment, renewable energy deployment, and
others.
And I just urge that there be some reconciliation here. It
is incredibly dangerous, and all we are doing is enriching our
enemies. I yield back.
Mr. Stauber. Thank you very much. The Chair now recognizes
Representative Kamlager-Dove for 5 minutes.
Ms. Kamlager-Dove. Thank you, Mr. Chair, and thank you to
our witnesses for being here today.
President Stiffarm, I am especially grateful to see you
here today. Too often, the conversation about our country's
minerals needs have left out those who would be, and already
have been, impacted by these mining interests.
Many of the minerals needed for the energy transition are
located near or within areas of cultural or environmental
importance to Indigenous peoples: 97 percent of nickel, 89
percent of copper, 79 percent of lithium, and 68 percent of
cobalt reserves and resources are within 35 miles of tribal
lands. But as we have heard here today, mining is not a new
threat to tribal lands.
President Stiffarm, can you briefly tell us about some of
the environmental impacts of mining that have been left behind
near your community?
Mr. Stiffarm. Thank you for your question. The impacts that
have been left behind and what they did to our sacred lands and
our Little Rockies is pretty devastating. It is a CERCLA site,
so it is going to be perpetually looked at and cleaned up at
the rate of $2.2 million a year to help clean up and take care
of that site.
And what I know about this is the water that drains onto
the reservation, they don't have cleaning ponds or cleaning
stations to filter out our water. They do to the towns south of
us, Zortman and Landusky, they have clean drinking water. As a
matter of fact, they drilled a deep well to pump water into
those two communities, but they don't onto the Fort Belknap
Indian Reservation.
Now, I will paint you a quick picture. Like I spoke about
earlier, those mountains are like our church, our prayer. We go
up there and we fast. Our Sundance Grounds are in those
mountains. We go up there and we pray. We make offerings. Now,
what if they had a mine right in the backyard of a church or
synagogue, and they left it unattended, and the water and the
ground got contaminated in one of these major cities, or even
in one of our small towns? That would be a big issue.
But to me, the people, the first people of this country,
the Native Americans, we are second-class citizens still. We
are a third-world country. People don't take that into concern
about how it affects our lives, our children's lives, our
grandchildren's, and our future generations. And we are still
battling this from 1888 to where we are here today.
And you take a look at that mining law, that was 1872. It
has never been changed. And we were forced to be put on
reservations and our treaties have been changed over, and over,
and over that affects us. But these mining companies and these
mining laws have never been touched. There is something wrong
with that picture in that what is wrong with that picture, it
boils down to profit, lining their pockets, and while our
people are starving, 70 percent unemployment rate, suicide rate
is very high amongst our people.
Ms. Kamlager-Dove. So, President Stiffarm, rather than
enacting legislation like this which tips the scales further
towards the interests of the mining industry, what would you
like to see?
Mr. Stiffarm. I would like to see these mining companies
held accountable for what they leave behind, the devastation. I
come here to speak for life for our people, not for profit. We
just want to live like we used to. And we do live like that. We
just practice our own language, our culture from centuries ago.
But what happened in the mountain that they did cut down,
we called that Spirit Mountain, where they cut it pretty much
in half, and they used cyanide heap leach to extract the gold.
It is still there. But we can't sit there and pray on it
anymore because they took that away from us also.
Ms. Kamlager-Dove. I want to thank you for your testimony,
and I wanted to give you my time so that we could listen to
you.
With that, Mr. Chair, I yield back.
Mr. Stauber. Thank you very much. Next up is Representative
Fulcher for 5 minutes.
Mr. Fulcher. Thank you, Mr. Chairman. To the panel, thank
you for being here. I always learn something by being here, and
I was able to go through some of the written testimony, as
well, so thank you for that.
Mr. Chairman, my colleague from Louisiana talked about the
Administration's policy when it comes to mineral extraction or
exploration, certainly on public lands. And I think he has
appropriately identified that it is largely a do-nothing
strategy, and there are always reasons to do nothing. I think
we all know that, and we can always figure out ways or reasons
to do nothing.
But the reality is that we live in a world where there are
certain minerals that we just need to have, and we need to have
those for critical consumer use, we need to have those for
military, for homeland security purposes. And somehow, some way
we are going to get them, because of that demand and because of
that critical need.
So, the question then goes to how do we get them? Do we get
them as responsibly as we humanly can, and control the process,
or do we do what we are all too often doing now and empower our
enemies by purchasing from them, who have some or maybe little,
very little environmental concerns or processes? And that is
just the world that we live in.
So, Mr. Chairman, I want to thank you for your leadership.
Over and over again, we bring things to the table to try to
navigate this process and put some sanity into the real-life
situation that we are all confronted with. And therein lies the
list of bills that we have today. And I am thankful for the
sponsors for bringing that.
I do have a question specifically for Mr. Haddock.
In your written testimony, you spoke about the criticisms
of H.R. 2925, and the one that I would like you to expand on a
little bit is how do you address the argument that we have
already heard here, where this bill may lead to the use of
mining claims for non-mining purposes? How do you address that?
Mr. Haddock. Thank you for that question. The answer to
that is that this just simply returns the state of permitting
to the way it was pre-Rosemont, and it doesn't change any other
provision of the mining law, including the clear regulations in
the BLM surface use regulations about the use of surface for
inappropriate purposes.
The BLM has the ability at any time to go out and police
their mining claims, and they do, and remove non-conforming
uses. Any mining claim that is located for any purpose other
than mining and prospecting purposes is void ab initio. It is a
non-entity. And under the law the BLM can, as we have talked
about, go out to file a lawsuit, and they can void the claim.
But to say, well, let's not let anybody do that, it is kind of
saying let's take away all of our deductions under the IRS
because some people cheat on it.
The government has to enforce when people cheat, and they
do.
Mr. Fulcher. All right. Thank you for that, Mr. Haddock. I
appreciate you expanding on it.
I do have some other questions I am going to submit for the
record.
But I have about a minute and a half left. I would like to
yield that to the Chairman.
Mr. Stauber. Thank you very much for yielding.
Dr. Feldgus, Representative Graves asked you how many new
mines that this Administration has approved. I will ask you a
little bit more specific. Are they new mines or mine
modifications or expansions?
Dr. Feldgus. I would have to go back and check exactly how
many are expansions or modifications.
Mr. Stauber. Do you want me to tell you? Two, and two were
approved via EIS statement and one was lost in court and that
was Resolution Copper. The EIS wasn't approved. They went to
court and filed. Resolution Copper is not mining copper right
now. We know that Resolution Copper will provide 25 percent of
this nation's copper.
So, I want to be very accurate. You said 36. That is not
accurate answering the question from Representative Graves. He
said how many new mines, and you used Secretary Haaland's
number, 36. Those are modifications and expansion. I want to be
very clear. There have only been two, and the courts took away
one.
My time is up, and I will refer to the Ranking Member of
the Full Committee, Representative Grijalva, for 5 minutes.
Mr. Grijalva. Thank you very much, Mr. Chairman. And if I
may, I would like to request unanimous consent to enter into
the record section 2, lines 6 through 15 of H.R. 2025, dealing
with the language issue.
Could somebody build a hotel? Could somebody build a waste
dump? Could somebody build housing on that property? And the
claimant shall have the right to use, this is according to the
bill, the right to use, occupy, and conduct operations on
public land with or without the discovery of a valuable mineral
deposit if the claimant makes a timely payment on a location
fee and the claim maintenance fee.
Mr. Stauber. Without objection.
Mr. Grijalva. Thank you very much.
President Stiffarm, thank you for being here, sir, and most
of the questions I was going to ask you, you answered in
response to my colleagues here.
As you have been listening, mining is considered the
highest and best use of our public lands, meaning if there are
minerals present on the land and someone stakes a claim on
eligible public land, then they get to mine that. And land
managers and communities don't have a great deal of say, they
don't have the right to say no to a project and much less have
the right to significantly weigh in on the project prior to
exploration and prior to development. These impact lives very
directly.
And for the last 150 years, the mining industry has had to
at least prove that there were valuable minerals on the land
before they had the rights to claim it. The bill that I just
referenced is so extreme that it takes that even a step
further. The bill gives anyone the ability to stake a mining
claim, whether there are valuable minerals on the land or not,
i.e. Rosemont needed that extra land so they could dump their
waste there because community and state land was not available.
The reason for this change, mining companies want to dump
toxic mining waste whenever they want to and as a convenience
for the operation. Under this bill, the highest and best use of
any public land would be, it is OK to dump toxic waste or any
other thing the mining industry wants to get rid of.
President, can you tell us about this particular section,
and more about the legislation and what it creates for your
community as I referenced those points just now?
Mr. Stiffarm. Thank you for your question.
I guess how I have explained and how it is read in this, it
brings it back to probably the 1800s when the Homestead Act was
taken, when they were allowed to take our land, our Native
peoples' land, as they wished.
With this law that you have here now, these mining
companies, they stake claims anywhere and wherever they want.
And it sounds like you guys are going to be doing that
yourselves now, to take land, whether it is in a national park
or unclaimed land, and claim it as a mining claim and take it
as their own. That is what happened to us. That is what put us
on reservations.
And where I see it now, you are all turning around on
yourselves and letting these mining companies do it to you, do
it to these people's lands here, the national parks or wherever
they recreate, or wherever they think they want to find a claim
at, claim that land as their own. I guess they come full
circle. I see in my eyes where you all are going to allow these
people to take your land as they took ours. That is the way I
see it. Thank you, sir.
Mr. Grijalva. Thank you. And just to that point, I think
there is historical context to what we are talking about, and I
appreciate all the witnesses and their comments, that the
moment is now. Yes, I don't disagree with that. This is real
time. But there is a historical context here. And to merely
open the floodgates to the use of our public lands without any
protections, due process, community involvement on the part of
the communities, including Indigenous communities across this
country, is going back to a time that got us into this
situation.
The reaction to mining in this country and the oppositions
that you find at Rosemont and at Resolution in my home state of
Arizona are not organic, they just pop up, there is a history
there. And the San Carlos Tribe and the O'Odham Tribe, and
environmentalists are opposed to that because of the lack of
transparency and the overpowering control that the mining
industry has over the law of 1872. That has to change if we
want sustainable, quality, good mining in this country.
With that, I yield back, sir.
Mr. Stauber. Thank you very much. Next up, Representative
Tiffany from Wisconsin for 5 minutes.
Mr. Tiffany. Thank you.
Dr. Feldgus, do you believe the Ninth Circuit decision was
ruled correctly on the Rosemont decision?
Dr. Feldgus. I don't know if I should opine on court
decisions.
Mr. Tiffany. I was just reading in this, I think it was
your testimony, I am reading here that there is basically great
uncertainty, and you are just not sure, and we need to work
through this.
Isn't the Rosemont decision leading basically to chaos in
trying to sort it out?
Dr. Feldgus. I don't believe so. We are able to move, we
are advancing mines after the Rosemont decision. We are using
the options that are laid out in our Solicitor's M Opinion to
give companies an option for how they would like to move
forward, and we are able to do that.
Mr. Tiffany. Do you think companies are going to be able to
mine post-Rosemont?
Dr. Feldgus. I believe they are mining and we have approved
mines post-Rosemont.
Mr. Tiffany. How many mines have you approved?
Dr. Feldgus. I can't tell you the exact number since
Rosemont.
Mr. Tiffany. Mr. Chairman, didn't you just cite that
number?
Mr. Stauber. Representative Tiffany, if I may----
Mr. Tiffany. I will yield to the Chairman.
Mr. Stauber. Representative Tiffany, Representative Graves
asked Dr. Feldgus how many mines that they approved, and he
stated there was 36. In fact, that is not accurate. When we
talk about new mines, we are not talking about modifications or
expansions. It is actually two for EV batteries and critical
minerals.
Mr. Tiffany. So, do you think that is going to be able to
be sufficient to satisfy our needs for minerals here in the
United States of America, just doing two mines over the course
of, Mr. Chairman, if I could yield back to you, over the course
of how many years?
Mr. Stauber. The last 3 years.
Mr. Tiffany. Do you think we are going to have a sufficient
amount of critical minerals to be able to continue a life of
prosperity in America?
Dr. Feldgus. Well, that is why the Administration is in
favor of increasing domestic mineral production, and why we put
out a report last year with over 60 recommendations for how to
improve mining and how to build more public trust and
confidence in the process.
Mr. Stauber. Representative Tiffany, will you yield to me?
Mr. Tiffany. I would be happy to yield to you.
Mr. Stauber. Dr. Feldgus, I can't let that comment go. You
have shut down mines in northeastern Minnesota, the biggest
copper nickel find in the world. Your Administration pulled the
leases for political purposes. They wouldn't even let an EIS go
forward. Ninety-five percent of our nickel is in that find, 88
percent of our cobalt, over a third of our copper and other
platinum group metals. I can't let you get by with that
statement that you support domestic mining.
In fact, with this Administration, Dr. Feldgus, that
couldn't be further from the truth. They are working on
Memorandums of Understanding with the Chinese Communist Party,
who owned 15 of the 19 industrial mines in the Congo, no
environmental standards, no labor standards, and use child
slave labor. I can't let you, on behalf of the Administration,
say that to the American people.
I yield back.
Mr. Tiffany. Mr. Haddock, if we continue in this direction
that we have seen over the, and I wouldn't say just the last 3
years, but over a series of administrations here, where we have
seen this hostility towards mining, where are we headed, as a
country?
Mr. Haddock. Well, ultimately, we will not be able to
permit mines.
And the one comment I would make is I think there is a big
misunderstanding about what Rosemont said. Rosemont didn't say
that you have to be able to prove that you have a valuable
mineral deposit to mine the mine. Rosemont said you had to
prove you had a valuable mineral deposit to put the road to the
mine. You never had to patent, and you don't have to patent a
mine to operate it.
But with a decision like Rosemont hanging out there and
continued moves to make permitting more difficult, we won't be
able to mine.
Mr. Tiffany. Are you challenging that decision?
Is anyone challenging the decision that came out of the
Ninth Circuit?
Mr. Haddock. I do, I think it is wrong, and I think it
needs to be reversed.
Mr. Tiffany. Is anybody challenging it, though? Is it
currently being challenged?
Mr. Haddock. It is used in numerous situations, and there
are still open statutes of limitations periods. There are
briefs that have been filed in other cases that suggest they
are going to use Rosemont to make other arguments, including
that you can't put even a transmission line across the claim
until you have proved that it has a valuable mineral deposit.
Mr. Tiffany. Mr. Chairman, I will just conclude with this.
Dr. Feldgus, I give you great credit for standing up here
before the Administration. We have seen you doing this multiple
times on behalf of the Administration. I would just go back to
Superior, Wisconsin, when the President was just here in my
district last week and talking about, boy, we have to build
this infrastructure, and I am going to give a big, billion-
dollar check to build this bridge that spans Minnesota and
Wisconsin, which I support. But the price tag is $1 billion.
And why is the price tag $1 billion that is going into
that, plus? It is because we are not producing those minerals
and we don't have permitting, we don't have permitting reform
that we could do this in less than 10 to 15 years. But we have
the minerals to produce the steel that goes into that bridge in
northern Minnesota, yet the Administration is stopping that
from being produced.
How are we going to build infrastructure in America in a
friendly environment where we can do it in a way that is not
cost-prohibitive? And we can't do it. And President Biden and
his Administration should stop this charade that they believe
in building infrastructure in America because they are doing
everything to kill it, including by killing mining projects.
I yield back.
Mr. Stauber. Thank you very much. The Chair now recognizes
Representative Gosar from Arizona for 5 minutes.
Dr. Gosar. Thank you very much, Mr. Chairman. I appreciate
the opportunity to discuss critical legislation initiatives
that address challenges facing our nation in the realms of
mining, resource management, and the community safety.
The recent Rosemont decision by the U.S. Court of Appeals
for the Ninth Circuit and the Biden administration's proposed
rule regarding mining projects under the FAST-41 Act underscore
the need for legislative clarity and foresight. Today, I want
to highlight the Rosemont decision.
According to the AP article, the Rosemont decision conveys
that the government must prove that ``valuable minerals are
present'' on the land before they establish rights to adjacent
land for waste disposal. Well, here is an obvious problem: how
can you prove that valuable minerals are present if you can't
even mine?
The answer is that it is impossible to prove this. Unless
you actually get your hands dirty and start the process of
extracting ore from the ground, there is no way to truly prove
that a mine has valuable minerals. Essentially, you can't mine
unless you prove valuable minerals are present, and you can't
prove valuable minerals are present unless you mine. This
harmful Catch-22 negatively affects my home state of Arizona,
and neighboring Nevada suffers from the fallout also.
I represent a district that was founded because of
minerals. They are essential to the communication and the
national security of our country. I will continue to oppose the
attacks on our mines by activist judges and the Biden
administration.
Mr. Haddock, is the Mining Regulatory Clarity Act a
bipartisan proposal?
Mr. Haddock. Yes.
Dr. Gosar. How is this reflected in the outside support
throughout the mineral supply chain and with the broader
industry such as labor and workforce?
Mr. Haddock. Well, at this point I can tell you that our
vendors are very concerned about it. Our contractors, the
providers, the people who make the haul trucks.
And I can also tell you that our workers are very concerned
about it, and I suspect that some of my colleagues back in
Nevada are watching this hearing today, and this is of great
importance to them and our 7,000 employees in Nevada.
Dr. Gosar. So, what are some of the irrational outcomes of
Rosemont?
Mr. Haddock. Well, there are many, but one of them is that
the Rosemont decision taken to its extreme means that you
actually have to dump your materials or build your facilities
on top of the minerals you are supposed to be mining. That is
how irrational it is.
But it also means that when the BLM, as they did in the
Rosemont case, looked at the configuration of the mine and
where the waste rock had to go, and they tried to make it
compact and to avoid cultural resources and to avoid
environmental values, it now means that you can't do that, that
you have to spread it out, that you have to take the waste
somewhere far away on some other piece of ground to do this.
Dr. Gosar. Does the Rosemont decision present any risk to
some existing mines?
Mr. Haddock. In the Solicitor's Opinion, they recognize
that there is an issue there. And it was kind of an interesting
footnote that they put at the end and said, well, we recognize
that some mines might not have been exactly permitted with
Rosemont, or consistent with this opinion, and said, well, your
honors, you judges, if anybody challenges those mines, you
should not upset those approvals, and there are a bunch of good
reasons you should do that.
Of course, that is not enforceable against the courts, and
the litigants can say whatever they want. We don't think you
should be able to upset existing approvals, but I suppose
someone could make that argument.
Dr. Gosar. Got you. So, does this bill allow mining
activities to occur in conservation areas, national parks, or
prior withdrawn lands?
Mr. Haddock. It does not. Those are governed by their own
regulations and statutes.
Dr. Gosar. Does this bill create new property rights that
were not previously part of the mining law?
Mr. Haddock. No, it does not. This bill is not about
property rights. It is simply about how you permit a mine.
Dr. Gosar. Why shouldn't we be concerned about the Grand
Canyon and the Central Arizona Project, examples of
inappropriate use of mining claims cited by the opponent of
this bill?
Mr. Haddock. I would say that those are examples that show
just the opposite, that shows the government can void claims
that are located for inappropriate motives.
Dr. Gosar. Should we be incentivizing mining in the United
States? And if so, what is needed?
Mr. Haddock. Well, the one thing that I would love to see
is the return of a Bureau of Mines, somebody who gathers all
the data from we that are out operating on the ground
commercially, thinks about that suite of things on the periodic
table that are really important to the country, does research
to find ways to extract those commercially, and keeps that
database as a nation. Most nations do that, and we don't have
anything like that now.
Dr. Gosar. My last question for you is, are we stronger or
weaker when we are dependent upon others for our natural
resources?
Mr. Haddock. We are weaker.
Dr. Gosar. So, this is a national security issue.
Mr. Haddock. Yes, sir.
Dr. Gosar. There is a bigger plan here. This isn't the end
of this issue, is it? There is something else behind this,
right?
Mr. Haddock. I don't know.
Dr. Gosar. Well, take it from me, there is.
I yield back.
Mr. Stauber. Thank you very much. Before we wrap it up, the
Ranking Member of the Full Committee, Ranking Member Grijalva.
Mr. Grijalva. Thank you very much, Mr. Chairman. I would
just like unanimous consent to enter into the record a letter
from the Patagonia Area Resource Alliance in my district in
Arizona which is home to the first mining project considered
under FAST-41. They raise issues on that in opposition to H.R.
6862, and for the record, sir.
Mr. Stauber. Without objection.
[The information follows:]
PATAGONIA AREA RESOURCE ALLIANCE
Patagonia, AZ
January 24, 2024
Full Committee Chairman Bruce Westerman
Full Committee Ranking Member Raul Grijalva
Sub-Committee Ranking Member Alexandria Ocasio-Cortez
Re: H.R. 6862
Greetings Representatives Westerman, Grijalva, and Ocasio-Cortez:
I write to you in opposition to H.R. 6862 (Rep Lamborn), a bill to
amend the FAST Act to include certain mineral production activities as
a covered project. This bill would codify Trump-era regulations that
make all mining eligible for FAST-41. FAST-41's project-specific
permitting timetables do not conform with the well-documented risks
mining poses to land, waters, public health, and other resources,
especially with tribal consultation requirements.
I live in Patagonia, AZ where an Australian mining company is
currently operating the only mine project that is designated as a FAST-
41 project; a designation received in July 2023. As a frontline
community, we are very concerned about the impacts of 21st century
industrialized mining activity in an area of rapidly declining
groundwater and increasing drought. WATER IS LIFE--DON'T MINE IT AWAY!
The Town of Patagonia and Santa Cruz County are part of the Madrean
Archipelago a region identified by scientists as one of the top regions
in the world most in need of research and protection for species
survival. These mountains are home to more than 100 federally
designated endangered, sensitive, threatened species.
``Effective democratic governance depends upon informed public
participation, and several international conventions and policy
guidelines call for enhanced public participation in environmental
management. Yet, large-scale resource development projects generally
receive insufficient oversight by, and engagement with, civil society.
And in the absence of effective supervision and public engagement,
corporate and government vigilance can weaken, complacency increases,
environmental and social standards decline, and risks increase. Such
insufficient oversight, lower standards, and complacency can result in
acute and catastrophic damage, such as oil spills, chemical explosions,
mine disaster, over harvest and stock collapse; long-term, chronic
environmental degradation; and social tension, mistrust, litigation,
and even violence between local people and industry.'' United Nations
Environment Program Citizens' Advisory Councils to Enhance Civil
Society Oversight of Resource Industries by Richard Steiner.
Patagonia Area Resource Alliance (PARA) works to hold federal and
state agencies to the laws and regulations on exploratory and mining
activities in the Patagonia Mountains and the Sonoita Creek watershed;
collaborates with Strategic Partners to (i) assure that any mining
activities meet the highest science-based standards and (ii) protect
the water, land, and wildlife of the Patagonia Mountains from the
negative impacts of modern industrialized mining; and supports the
expansion of the nature based restorative economy that depends on the
remarkable biodiversity and cultural heritage of our region.
PARA is currently involved in two legal actions with respect to
state water permits because AZ Department of Environmental Quality is
not following state statutes nor complying with Clean Water Act
regulations. PARA wrote to EPA in July and October 2023 requesting the
federal agency exercise its oversight of the state agency.
PARA is one of the organizations involved in a lawsuit against the
Coronado National Forest for its failure to perform a cumulative
impacts analysis. PARA is also aware of several FOIAs to the Forest
Service that have not yet been responded to. In the summers of 2021 and
2022, the Town of Patagonia asked the Coronado Forest Service to
conduct a comprehensive groundwater study. The Coronado provided an
unsatisfactory response. How can any Plan of Operations be approved
without knowing the impact that this massive activity will have on a
unique hydrologic system?
PARA is working with the Town and the County on the process of
drafting a Community Protection & Benefits Agreement. Both the Town of
Patagonia and Santa Cruz County are designated as Participating Agents
in this FAST-41 process for this project. WHO is the point of contact
for how this process should work for the community and to be able to
address issues and concerns as they arise. It is important for all
information to be publicly available as this project moves through the
NEPA process. When will we be able to review the Plan of Operations
that has been accepted by the Coronado National Forest?
I end this letter with the same statement I opened with: I write to
you in opposition to H.R. 6862 (Rep Lamborn), a bill to amend the FAST
Act to include certain mineral production activities as a covered
project. This bill would codify Trump-era regulations that make all
mining eligible for FAST-41. FAST-41's project-specific permitting
timetables do not conform with the well-documented risks mining poses
to land, waters, public health, and other resources, especially with
tribal consultation requirements.
Carolyn Shafer,
Board Co-Chair and Mission Coordinator
______
Mr. Grijalva. Thank you.
Mr. Stauber. I would also like to, without objection,
submit for the record testimony from the National Mining
Association in support of H.R. 2925 and H.R. 6862; a letter
from American Exploration and Mining Association expressing
support for H.R. 2925, along with H.R. 6862; a letter from NMA
and ZETA in support of H.R. 2925 and critical mineral
development in the United States; a statement for the record
from Advanced Energy United in support of H.R. 2925; a letter
from the National Infrastructure Alliance in support of H.R.
6862; a bipartisan letter sent to the Federal Permitting
Improvement Steering Council, signed by 22 Senators; a letter
sent to the Federal Permitting Improvement Steering Council
signed by Senator Christine Sinema, both of which are in
opposition to the Biden administration's proposed rule to limit
the FAST-41 covered sector list to critical mineral projects
only; and also the most recent USGS mineral commodity summaries
for 2024.
[The information follows:]
Statement for the Record
National Mining Association
America's mining industry supplies the essential materials
necessary for every sector of our economy--from technology and
healthcare to energy, transportation, infrastructure and national
security. The National Mining Association (NMA) is the only national
trade organization that serves as the voice of the U.S. mining industry
and the hundreds of thousands of American workers it employs before
Congress, the federal agencies, the judiciary and the media, advocating
for public policies that will help America fully and responsibly
utilize its vast natural resources.
We work to ensure America has secure and reliable supply chains,
abundant and affordable energy, and the American-sourced materials
necessary for U.S. manufacturing, national security and economic
security, all delivered under world-leading environmental, safety and
labor standards. The NMA has a membership of more than 280 companies
and organizations involved in every aspect of mining, from producers
and equipment manufacturers to service providers. The NMA appreciates
the opportunity to offer written testimony on behalf of the mineral and
hardrock mining industry in support of H.R. 2925--the Mining Regulatory
Clarity Act of 2023--and H.R. 6862, which would amend the Fixing
America's Surface Transportation (FAST) Act to include certain mineral
production activities as a covered project.
Introduction
Despite being home to vast mineral reserves, the U.S. is facing
unprecedented and precarious mineral supply chain challenges. Our
import reliance has been a well-documented and increasingly problematic
issue for decades and has now become a crisis, exacerbated by pandemic
and war-related supply chain challenges, and exponentially increasing
mineral demands due to the rapid electrification of our economy. As
documented by the U.S. Geological Survey (USGS), the U.S. reached
record mineral import reliance in 2022 as imports made up more than
one-half of the U.S. apparent consumption for 51 nonfuel mineral
commodities--up from 2021, when only 47 commodities met that metric.\1\
USGS numbers for 2023 are expected any day with this upward mineral
import trend likely to continue.
---------------------------------------------------------------------------
\1\ U.S. Geological Survey, 2023 Commodity Summary, available at
https://pubs.er.usgs.gov/publication/mcs2023.
---------------------------------------------------------------------------
There is recognition by some within the Biden-Harris administration
of the immense challenge we now face and the importance of domestic
mining to nearly every piece of the President's agenda. Several of the
administration's early executive actions, including its comprehensive
supply chain review, made clear the inherent vulnerabilities of our
overreliance on mineral imports, the need for domestic mining support
and lack of domestic processing and refining capabilities. Despite the
rhetoric from the administration about the need to address the minerals
challenge, actions have not lived up to the words.\2\ There can be no
mineral and supply chain security--no meeting the enormous mineral
demand at our doorstep--without fundamental recognition that we need
more domestic mining and the policies to achieve it.
---------------------------------------------------------------------------
\2\ The administration recently memorialized its policy
recommendations with the Sept. 12, 2023, release of the White House
Interagency Working Group (IWG) on Mining Regulations, Laws, and
Permitting released its report, ``Recommendations to Improve Mining on
Public Lands.'' The NMA strongly disagrees with the report's
overarching conclusion that fundamental reform of the Mining Law is
necessary to achieve the best outcomes. The NMA's comments to the IWG
are available at https://www.regulations.gov/comment/DOI-2022-0003-
26954. A recent NMA op-ed, the Biden mining policy train wreck,
outlines concerns regarding many of the key policy recommendations is
available at https://elkodaily.com/opinion/column/commentary-the-biden-
mining-policy-train-wreck/article_3036f00e-80c5-11ee-bc20-
1bade970ae33.html. These NMA concerns apply equally to provisions of S.
1742 that are similar to the IWG policy recommendations.
---------------------------------------------------------------------------
Solutions to meet anticipated mineral demand, while simultaneously
rebuilding our domestic supply chains, must be comprehensive. Friend-
shoring of our minerals supply, however, cannot come in place of the
essential work of standing up production and these supply chains at
home. Regulatory certainty must be the cornerstone of minerals policies
to enable the ramping up of domestic production and processing under
our rigorous environmental and safety standards.
The NMA appreciates the opportunity to discuss the importance of
regulatory certainty in the context of the legislation that is the
subject of this hearing. The NMA strongly supports the bipartisan
Mining Regulatory Clarity Act of 2023 (H.R. 2925) to restore long-
standing interpretations of the Mining Law upended by the U.S. Court of
Appeals for the Ninth Circuit's fundamentally flawed decision in Center
for Biological Diversity v. U.S. Fish & Wildlife Service (Rosemont
Decision). Additionally, the NMA strongly supports H.R. 6862, which
prohibits the Federal Permitting Improvement Steering Council from
finalizing, implementing or enforcing its proposed rule titled
``Revising Scope of the Mining Sector of Projects That Are Eligible for
Coverage Under Title 41 of the Fixing America's Surface Transportation
Act'' (88 Fed. Reg. 65350; September 22, 2023). These bills restore
regulatory certainty to strengthen the domestic mining industry and
improve investor confidence.
Ever-increasing Demand for Minerals
The most mineral intensive moment in human history is upon us and
the U.S. is woefully unprepared. Looking solely at demand coming from
the electric vehicle market: the Energy Transitions Commission
estimates up to 250 new mines may be required by 2030.\3\ Benchmark
Minerals says we will need 384 new mines by 2035.\4\ The Fraser
Institute recently said 388 new mines must be built by 2030.\5\ It's
clearly not a question of if we must mine, but where? The ``where''
matters because producing minerals here at home, as opposed to the
administration's proposals to partner with countries such as Congo and
Zambia, ensures mining will be conducted in accordance with the world's
most stringent environmental, labor and safety regulations, while
simultaneously creating high-paying American jobs.
---------------------------------------------------------------------------
\3\ Energy Transitions Commission, ``Material and Resource
Requirements for the Energy Transition,'' July 2023; https://
www.energy-transitions.org/wp-content/uploads/2023/07/ETC-Material-and-
Resource-Requirements-ExecSummary_vF.pdf
\4\ https://source.benchmarkminerals.com/article/more-than-300-new-
mines-required-to-meet-battery-demand-by-2035.
\5\ Fraser Institute, ``Failure to Charge: A Critical Look at
Canada's EV Policy,'' Nov. 2023; https://www.fraserinstitute.org/sites/
default/files/can-metal-mining-match-the-speed-of-planned-electric-
vehicle-transition.pdf.
---------------------------------------------------------------------------
The Biden administration has articulated a desire to scale back
U.S. reliance on Chinese minerals. In April 2023, President Biden's
national security adviser, Jake Sullivan, warned that ``clean-energy
supply chains are at risk of being weaponized in the same way as oil in
the 1970s, or natural gas in Europe in 2022.'' \6\ In his remarks, he
specifically mentioned concerns about minerals that form ``the backbone
of the clean-energy future.'' \7\ His concerns were a foretelling of
future actions. In July 2023, China announced restrictions on the
export of gallium and germanium, minerals integral to semiconductors,
solar panels and missile systems. The U.S. is currently 100 percent
reliant on China for these critical commodities. As accurately
described by The Wall Street Journal, the action was ``more than a
trade salvo. It was a reminder of China's dominant hold over the
world's mineral resources--and a warning of its willingness to use them
in its escalating rivalry with the U.S.'' \8\ The July restrictions
were followed by an October 2023 announcement by China setting export
restrictions on graphite, a move Geoffrey Pyatt, Assistant Secretary of
State for Energy Resources, called a ``wake-up call' that reflects both
the dangers and urgency the U.S. faces in ramping up critical mineral
supply chains to meet its climate goals.'' \9\
---------------------------------------------------------------------------
\6\ Remarks by National Security Advisor Jake Sullivan on Renewing
American Economic Leadership at the Brookings Institution, April 27,
2023. Available at https://www.whitehouse.gov/briefing-room/speeches-
remarks/2023/04/27/remarks-by-national-security-advisor-jake-sullivan-
on-renewing-american-economic-leadership-at-the-brookings-institution/.
\7\ Id.
\8\ Jon Emont, Wall Street Journal, China Controls Minerals That
Run the World--and It Just Fired a Warning Shot at U.S., July 11, 2023.
Available at https://www.wsj.com/articles/china-controls-minerals-that-
run-the-worldand-just-fired-a-warning-shot-at-u-s-5961d77b.
\9\ E&E Greenwire, ``State Dept. official: China's graphite
restriction a 'wake-up call'.'' November 2, 2023. Available at https://
subscriber.politicopro.com/article/eenews/2023/11/02/state-dept-
official-chinas-graphite-restriction-a-wake-up-call-00125003.
---------------------------------------------------------------------------
China's willingness to employ such tactics for decades, has led to
skyrocketing prices for many minerals and has required a drawdown of
limited stockpiles that will last two to three months at most.\10\ A
former U.S. Trade Representative for China notes that China's past
retaliation patterns are the best clues for predicting what to expect
next, and their most effective passive option would be an export
suspension of key inputs that would ``inflict direct, reciprocal
pain.'' \11\
---------------------------------------------------------------------------
\10\ Reuters, ``China gallium, germanium export curbs kick in; wait
for permits starts.'' August 1, 2023. Available at https://
www.reuters.com/markets/commodities/chinas-controls-take-effect-wait-
gallium-germanium-export-permits-begins-2023-08-01/.
\11\ The Hill, ``China's retaliation playbook can't meet the US
export control challenge,'' October 20, 2022; https://thehill.com/
opinion/international/3697077-chinas-retaliation-playbook-cant-meet-
the-us-export-control-challenge/
---------------------------------------------------------------------------
China's dominance in mineral production and processing will take
focused and durable policies to overcome. As the primary producer and/
or supplier of mineral commodities listed as essential to U.S. economic
and national security,\12\ China controls more than 80-90 percent of
global rare earth element production, nearly 90 percent of global
mineral processing capabilities, as well as the market prices for rare
earth elements at each step of the process. China also refines 68
percent of the world's cobalt, 65 percent of nickel, and 60 percent of
battery grade lithium needed for electric vehicle batteries and energy
technologies. Goldman Sachs Research also estimates the extent of the
vertically integrated nature of China's dominance, with 65 percent of
battery components, 71 percent of battery cells, and 57 percent of the
world's electric vehicles being made in China.\13\
---------------------------------------------------------------------------
\12\ Notably this reliance comes despite existing U.S. resources.
In the 2022 Mineral Commodity Summaries, the USGS indicated the U.S.
had an estimated 48 million metric tons (mt) of copper that can be
mined and processed economically, 69 million mt of cobalt, 340 million
mt of nickel and 750 million mt of lithium. Regardless, in 2021, the
U.S. imported 48 percent of U.S. consumption of nickel, 76 percent of
cobalt, 45 percent of copper, and more than 25 percent of lithium.
\13\ Goldman Sachs, ``Resource realism: The geopolitics of critical
mineral supply chains,'' Sept. 2023. https://www.goldmansachs.com/
intelligence/pages/resource-realism-the-geopolitics-of-critical-
mineral-supply-chains.html
---------------------------------------------------------------------------
Notably, China's strong supply chain position does not result from
an inherent geographic advantage in reserves for most materials, but
rather from heavy non-market activities and government subsidization of
mining, processing and manufacturing industries and excesses capacity.
With its much longer planning horizon, China has pursued its ``Going
Global'' strategy since the late 1990s, which involves deployment of
significant direct investments across the globe to secure mineral
supply chains.14,15
---------------------------------------------------------------------------
\14\ Humphries, Marc. Congressional Research Service, ``China's
Mineral Industry and U.S. Access to Strategic and Critical Minerals:
Issues for Congress,'' March 20, 2015. http://fas.org/sgp/crs/row/
R43864.pdf).
\15\ See also, USGS 2020 Investigation of U.S. Foreign Reliance on
Critical Minerals (There are instances where the mineral deposit or
mining and mineral processing operation of a commodity is partially or
completely owned and (or) controlled by foreign companies with strong
ties to their governments. For example, Chinese firms have purchased
equity stake in lithium deposits and operations in Australia and Chile,
niobium operations in Brazil, a rare earth deposit in Greenland, and
cobalt operations in the D.R. Congo, Papua New Guinea, and Zambia (S&P
Global Market Intelligence, 2020). Investigating China's investment in
cobalt assets worldwide, Gulley and others (2019) found that when
taking into account Chinese companies' ownership in foreign assets on
an equity-share basis, China's share of global cobalt production
increases from 2 to 14 percent for cobalt mine materials and from 11 to
33 percent for cobalt intermediate materials (figure 6). Furthermore,
if the Chinese companies' equity shares of the production from these
assets are assumed to be as secure as its domestic production, then
these acquisitions have the effect of reducing China's NIR from 97
percent to an adjusted 68 percent, thereby reducing China's exposure to
supply disruptions (Gulley and others, 2019).) p. 8.
---------------------------------------------------------------------------
The Biden administration's electrification and national security
objectives must begin with domestic mining. They cannot be achieved by
outsourcing our mineral supply chains to countries like China, Russia
and the Democratic Republic of Congo, all of which have far less
environmental, safety and labor oversight, or in some cases none.
Unfortunately, we only increase our dependence on these and other
sources for our minerals needs when we stand in the way of
opportunities to enact meaningful policies, instead choosing policies
that limit or completely block responsible domestic mineral
development.
The U.S. has all the ingredients necessary to counter China's
global mineral dominance. However, the wrong policies are creating
substantial setbacks to attaining such dominance. Today's legislation,
the Mining Regulatory Clarity Act and H.R. 6862, are necessary help
ensure U.S. minerals policy provides the necessary regulatory certainty
to support responsible domestic mining.
Destabilizing The Mining Law
Backdrop: Rosemont Project and Subsequent Litigation
The decade-long Rosemont permitting process began in 2008 when it
submitted a mining plan of operations and was subsequently followed by
a draft environmental impact statement (EIS) in 2011 and a final EIS in
late 2013. The U.S. Forest Service issued a final record of decision in
2017, but final approval was delayed until Rosemont received a Clean
Water Act section 404 permit in 2019. The approved plan of operations
included authorization to place waste rock on surrounding unpatented
claims as a ``use reasonably incident'' to its operations.
Years of Litigation
Several environmental groups challenged the approval of the
Rosemont project, including the placement of waste rock on the
unpatented claims. The Rosemont litigation was a strategic assault on
the Mining Law in an attempt to make it wholly unworkable, knowing that
the economic viability of a mine depends upon the ability to use
surrounding lands for activities incidental to mining, known as
ancillary use activities. In 2019, the United States District Court for
the District of Arizona issued a fundamentally flawed decision vacating
the Forest Service's record of decision supporting the agency's
approval of Rosemont plan of operations.\16\ The decision conflicted
with more than a century of legal precedent, including numerous U.S.
Supreme Court decisions, related to the Mining Law. The District
Court's reversal focused on the failure of the Forest Service to
confirm that the mining claims underlying proposed waste rock and
tailings storage facilities were valid before approving the plan.\17\
In doing so, the court misconstrued existing legal precedent regarding
rights conveyed by the Mining Law to owners of unpatented claims and
the ability to use surface resources to further the development of
those claims.
---------------------------------------------------------------------------
\16\ Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 409 F. Supp. 3d 738 (D. Ariz. 2019).
\17\ Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 33 F.3d 1202 (9th Cir. 2022).
---------------------------------------------------------------------------
The district court decision was appealed and in May 2022, the
United States Court of Appeals for the Ninth Circuit (9th Circuit)
affirmed the underlying decision on slightly different grounds. The
narrow and unprecedented reading of the Mining Law and U.S. Forest
Service 36 C.F.R. Sec. 228 Subpart A regulations, severely restricts
the Forest Service's ability to approve ancillary use activities
incidental to mining operations.
The environmental groups involved in the Rosemont litigation have
tried to further leverage the Rosemont decision to prevent other mining
projects from moving forward nationwide. For example, they challenged
the Lithium America's Thacker Pass project arguing the Rosemont
decision rationale applied to Bureau of Land Management (BLM)
authorizations as well as Forest Service. The U.S. District Court for
the District of Nevada agreed but remanded the Thacker Pass permit back
to the agency instead of invalidating it.\18\ The Mount Hope molybdenum
mine suffered a similar fate later in 2023. These same groups have
submitted comments on numerous other projects arguing they are unlawful
under the Rosemont decision.
---------------------------------------------------------------------------
\18\ Bartell Ranch LLC v. McCullough, No. 321CV00080MMDCLB, 2023 WL
1782343, (D. Nev. Feb. 6, 2023)
---------------------------------------------------------------------------
The Mining Regulatory Clarity Act (H.R. 2925)
The bipartisan legislation introduced in April 2023 by
Representatives Mark Amodei (R-Nev.) and Mary Peltola (D-Alaska)
reinstates much needed clarity in the face of the Rosemont decision.
The legislation returns to the workable framework that existed prior to
the fundamentally flawed Rosemont ruling, ensuring the fundamental
ability to conduct responsible mining activities on federal lands.\19\
The legislation is a durable solution, vastly superior to what can be
achieved through the May 2023 Solicitor's Opinion \20\ issued by the
Department of the Interior, especially considering courts' increasing
reluctance to provide the appropriate deference to such opinions.
---------------------------------------------------------------------------
\19\ See, definition of operations at 36 CFR 228.3 which is
mirrored in the legislation.
\20\ Department of the Interior, Office of the Solicitor, Use of
Mining Claims for Mine Waste Deposition, and Rescission of M-37012 and
M-37057, May 16, 2023. The NMA believes the opinion undermines
regulatory certainty by raising more questions than it answers,
offering unworkable solutions and undercutting well-understood and
lawful interpretations of the Mining Law.
---------------------------------------------------------------------------
What H.R. 2925 Does Not Affect
Contrary to allegations of the bill's detractors, the legislation
simply codifies the prior framework that existed before the Rosemont
ruling--nothing more, nothing less. It provides no additional rights or
allowable actions for a claim holder than what has existed, and worked,
for decades before. It ensures a claim holder shall have the right to
use, occupy and conduct operations with or without discovery of a
valuable mineral deposit, which is the long-standing method utilized by
BLM to evaluate proposed operations.
The legislation does not lock up federal lands: The
legislation does not change the requirements that a mining
claim actually be used for mining purposes. A claim holder
cannot simply ground a stake to mark a claim, pay a fee and
file paperwork to lock up lands for purposes unrelated to
mining as this would result in immediate suspension
pursuant to BLM regulations.\21\ All standards for
conducting mining operations under existing BLM regulations
remain in effect as does the Mining Law's ``good faith''
doctrine. Pursuant to the doctrine, any claim located in
``bad faith,'' or with no intention to extract minerals is
void.\22\ Activities must be reasonably incident,
constitute substantially regular work, be reasonably
calculated to lead to the extraction and beneficiation of
minerals, as verified by BLM official.
---------------------------------------------------------------------------
\21\ See, use and occupancy regulations under the Mining Law at 43
CFR Sec. 3715.0-1, 43 CFR Sec. 3715.2, and 43 CFR Sec. 3715.7-1
\22\ See, generally, U.S. v. Bagwell, 961 F.2d 1450 (9th Cir. 1992)
(The department can move forward to eject a claimant acting in bad
faith without first contesting the claims) and U.S. v. Nogueira, 403
F.2d 816 (9th Cir. 1968) (A claim made in bad faith is void even if it
is supported by a discovery).
Further, BLM data listing the amount of mining claims opened,
closed or transferred demonstrates that since 1947 a steady
and proportionate number of new claims are opened and
closed each year.\23\
---------------------------------------------------------------------------
\23\ Bureau of Land Management claim listings data. Available at
https://thediggings.com/usa/trends#table-annual-actions. Note: a data
outlier occurred in 1993 after the claims maintenance fee was
implemented.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The legislation is complemented by exhaustive local,
state, and federal environmental, cultural resource,
reclamation, and financial assurance laws and regulations
to ensure responsible operations: Activities on BLM and
Forest Service lands must meet all applicable laws and
regulations. Under the Federal Land Policy and Management
Act (FLPMA) section 302(b), activities must be conducted to
prevent ``unnecessary or undue degradation,'' which
requires compliance with applicable federal and state laws
related to environmental protection and protection of
cultural resources.\24\ Furthermore, the standard is self-
updating: the inherent nature of the standard allows for
continual improvement. As federal and state laws are
strengthened, so is the standard. Importantly, state
environmental regulations of general applicability apply on
federal lands and are not preempted by the General Mining
Law or other federal laws.\25\
---------------------------------------------------------------------------
\24\ Bureau of Land Management, ``The Federal Land Policy and
Management Act of 1976, as amended.'' Available at https://www.blm.gov/
sites/default/files/AboutUs_LawsandRegs_ FLPMA.pdf
\25\ California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572
(1987).
The Mining Regulatory Clarity Act would not change access
to public lands for recreation or conservation. Under
existing law, the public has ``the conditional right to
cross mining claims or sites for recreational and other
purposes and to access federal lands beyond these
boundaries.'' Nor does the legislation reopen lands already
placed off-limits to mining through congressional or
administrative action, including wilderness, national
parks, wildlife refuges, recreation areas and wild and
scenic rivers. In summary, the legislation does not change
or expand rights to locate or use mining claims in areas
that have been withdrawn from mineral entry,
---------------------------------------------------------------------------
administratively or by Congress.
Renewable energy projects on public lands will not be
impacted. In April 2013, the BLM published a final rule,
``Segregation of Lands--Renewable Energy,'' that allows the
BLM to segregate public lands within a solar or wind
application area from the operation of the public land
laws, including the Mining Law, by publication of a Federal
Register notice. The BLM uses this temporary segregation
authority to preserve its ability to approve, with
modifications, or deny proposed energy generation right-of-
way (ROW), and to facilitate the orderly administration of
the public lands, subject to valid existing rights.\26\
Licenses, permits, cooperative agreements, or discretionary
land use authorizations of a temporary nature which would
not impact lands identified in this notice of intent may be
allowed with the approval of an authorized officer of the
BLM during the segregation period. The BLM has exercised
this authority at least 10 times in the last year.
---------------------------------------------------------------------------
\26\ Federal Register, ``Segregation of Lands--Renewable Energy,''
(78 Fed. Reg. 25204, Apr. 13, 2013). Available at https://
www.federalregister.gov/documents/2013/04/30/2013-10087/segregation-of-
lands-renewable-energy
The legislation does not undermine the rights of tribes.
The legislation does not speak to the rights of tribes,
communities, or any stakeholders so it does not lessen any
obligations under existing local, state, and federal
---------------------------------------------------------------------------
regulations.
The legislation does not affect the existing BLM
regulations that mandate validity determinations. H.R. 2925
does not affect the existing BLM regulations that mandate
validity determinations prior to approval of a mine plan of
operations on lands that have been segregated or withdrawn
from appropriation under the Mining Law.\27\ To the extent
there are remaining concerns about the application of this
provision to withdrawn lands, the NMA believes a simple
savings clause could be added to further clarify that
nothing in H.R. 2925 affects the existing validity
determination requirement for claims on segregated or
withdrawn lands.
---------------------------------------------------------------------------
\27\ 43 C.F.R. 3809.100, What special provisions apply to
operations on segregated or withdrawn lands?
To amend the FAST Act To Include Certain Mineral Production Activities
---------------------------------------------------------------------------
as a Covered Project (H.R. 6862)
H.R. 6862 respond to a misguided September 2023 proposed rule \28\
from the Federal Permitting Improvement Steering Council (FPISC) to
amend its existing regulations to limit application of the FAST-41
permitting process to projects that involve primary or byproduct
production of ``critical minerals'' as defined by the U.S. Geological
Survey.
---------------------------------------------------------------------------
\28\ Revising Scope of the Mining Sector of Projects That Are
Eligible for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act; https://www.govinfo.gov/content/pkg/FR-2023-09-22/
pdf/2023-20270.pdf
---------------------------------------------------------------------------
This legislation, introduced by Representatives Doug Lamborn (R-
Colo.) and Blake Moore (R-Utah), ensures that all mining projects,
without bias, are eligible to utilize the permitting efficiencies
provided by the FPISC permitting dashboard. The legislation also
corrects the Biden administration's shortsighted departure from FPISC's
unanimous 2020 vote to add all mining as a covered sector to the list
of covered sectors eligible for the FPISC permitting process and the
subsequent rulemaking that codified that vote.
Background: 2020 FPISC Vote and Proposal to Add Mining as a FAST41
Covered Sector
On January 15, 2020, the FPISC unanimously voted to include mining
as a covered sector, a fact oddly omitted from the supplementary
information section of the 2023 proposal. The press release
accompanying the vote emphasized:
Minerals and metals are integral to many infrastructure
projects and play a vital role in reducing our reliance on
foreign sources of minerals for national and economic security,
including expansion of U.S. production of renewable energy in
wind turbines, solar panels and energy storage batteries. The
development of non-energy mining operations routinely involves
construction of a variety of infrastructure from buildings,
roads and pipelines to electricity generation and wastewater
treatment facilities.\29\
---------------------------------------------------------------------------
\29\ Permitting Dashboard, ``Press Release: Federal Permitting
Improvement Steering Council adds New Mining Sector,'' Jan. 15, 2020.
https://web.archive.org/web/20200715234325/https://
www.permits.performance.gov/about/news/new-sectors-fast-41
The Council's 2020 vote clearly recognized that mining projects
involve the complex permitting processes that the Act was designed to
facilitate. The NMA applauded mining's inclusion as a means to ensure
timely access to raw materials made available through domestic mining.
The decision was important enough that later in 2020, FPISC proposed a
rule to codify that vote.\30\
---------------------------------------------------------------------------
\30\ 85 Fed. Reg. 75998 (Nov. 27, 2020)
---------------------------------------------------------------------------
The 2020 proposed rule specifically acknowledged that the
complexity of permitting for major mining projects noting such projects
can involve the construction of significant infrastructure, substantial
investment, and, in certain circumstances, necessitate extensive
Federal review and authorization. Accordingly, FPISC concluded that
like other covered sectors, mining projects that satisfy the other
requirements of 42 U.S.C. 4370m(6) could benefit from the enhanced
interagency coordination and permitting timeline predictability
provided by FAST-41 coverage.
Importantly, by designating all mining as a FAST-41 sector in the
2020 proposal, the Council chose not to pick winners and losers among
potentially qualified mining projects. Broadly, the proposed
designation included ``mining on and off federally managed lands,
mining of federally managed and non-federally managed minerals, and
mining of any mineral, ore, or raw material extracted from the ground,
regardless of whether such mineral, ore, or raw material is used for
energy production, manufacturing, or any other purpose.'' \31\
---------------------------------------------------------------------------
\31\ 85 Fed. Reg. at 76000.
---------------------------------------------------------------------------
January 2021 FPISC Final Rule
To finalize the 2020 proposed rule, the Council had to once again
vote on the appropriateness of the including mining as a FAST-41
covered sector. That vote took place on Jan. 4, 2021 and a majority of
the Council voted in favor of the proposal, with no votes against the
proposal.\32\ Consequently, on Jan. 8, the FPISC promulgated the final
rule, codifying, without changes, the 2020 proposed addition of mining
as a covered sector.\33\ The final rule appropriately recognized:
---------------------------------------------------------------------------
\32\ As articulated in the final rule, the Executive Director as
well as Council members representing the Nuclear Regulatory Commission,
Advisory Council on Historic Preservation, Department of Commerce,
Department of Energy, Environmental Protection Agency, Army Corps of
Engineers, Department of the Interior, Department of Agriculture,
Department of Transportation, Department of Defense, and Department of
Homeland Security, and the Chairman of CEQ voted in favor of the
proposal. The Permitting Council member representing the Department of
Housing and Urban Development and the Director of OMB abstained from
the vote. The Permitting Council member representing the Federal Energy
Regulatory Commission did not vote. See, final rule 86 Fed. Reg. 1281,
at 1282.
\33\ FPISC Final Rule, Adding Mining as a Sector of Projects
Eligible for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act, 86 Fed. Reg. 1281, Jan. 8, 2021.
Mining is an appropriate FAST-41 sector precisely because
mining projects can be complex and diverse, and can necessitate
extensive and coordinated Federal and state environmental
review and decision making. The more complex the permitting
path, the more likely it is that a project will be able to
benefit from the enhanced interagency coordination,
transparency, and predictability that FAST-41 coverage
provides.\34\
---------------------------------------------------------------------------
\34\ Id. at 1283.
---------------------------------------------------------------------------
2023 FPISC Proposed Rule Inexplicably Reverses Course
The September 2023 proposed rule is a sudden and arbitrary
departure from FPISC's 2020 vote and 2021 final rule to add all mining
as a covered sector eligible for the FPISC permitting process. This
recent narrowing of eligible projects is contrary to both the
administration's infrastructure objectives and the will of Congress and
hamstrings the already limited activity by the Council, which to date
has accepted only one mining project to the program.\35\
---------------------------------------------------------------------------
\35\ South32, ''Hermosa confirmed as the first FAST-41 mining
project,'' https://www.south32.net/news-media/latest-news/hermosa-
confirmed-as-the-first-fast-41-mining-project. May 2023.
---------------------------------------------------------------------------
By limiting the type of mining projects eligible for the FPISC
permitting process, the Biden administration is wrongfully denying
timeliness, efficiency, predictability and transparency to mining
projects while continuing to call for more responsible and ethical
mineral supply chains. This is little more than a shallow attempt to
placate critics of any type of mining in the United States, which has
globally leading environmental, health, and safety standards, while
continuing to increase our nation's mineral import reliance from
geopolitical incumbents with little oversight of their mineral
extraction.
Conclusion
What we are seeing is an explosion in mineral demand colliding with
a geopolitical arms-race for development and control of integrated
mineral supply chains. Matching the speed and scale of this rising
demand requires the U.S. to recognize that mineral policy is now
energy, climate and national security policy. To compete, we need
access to our vast mineral resources and a permitting regime that
enables the mining sector to respond to market signals and meet demand.
Additional improvements to the permitting process should remain a high
priority given the data provided by Dr. Daniel Yergin of S&P Global in
testimony delivered in September 2023.\36\ He shared global data on 127
mines across the world that began production between 2002 and 2023,
which demonstrated that a major new resource discovery today would not
become a productive mine until 2040 at the earliest. He cautioned
against overzealous attempts to source minerals primarily from allied
countries while blocking domestic projects, noting that our allies are
experiencing similar supply constraints, so availability is not
guaranteed.
---------------------------------------------------------------------------
\36\ Senate Energy and Natural Resources Committee: Hearing to
Examine Opportunities to Counter the People's Republic of China's
Control of Critical Mineral Supply Chains. Sept. 28, 2023
---------------------------------------------------------------------------
The right policies to support domestic mineral production and our
supply chains must be forward-looking rather than regressive or the
U.S. mineral supply chain--from mining through smelting and
processing--will remain a shell of our true domestic potential.
Promoting regulatory certainty doesn't mean that laws and regulations
never change or that we aren't always seeking improvements. The NMA's
members are committed to continuous environmental improvements, and
routinely review developments across the globe for potential
incorporation into their own operations.
The NMA applauds the work of this committee and strongly supports
the Mining Regulatory Clarity Act of 2023 (HR. 2925) and H.R. 6862.
These pieces of legislation seek thoughtful and durable solutions to
address our nation's disjointed minerals policy and prioritize domestic
mineral security. Further, the regulatory certainty provided in these
bills will enable responsible access to federal lands for mineral
development and ease our nation's bureaucratic paralysis to provide for
greater economic competitiveness and growth.
The NMA appreciates the opportunity to provide this testimony to
the subcommittee and looks forward to working with Congress and the
administration to support meaningful actions to increase the
responsible domestic mineral supply chains for generations to come.
______
American Exploration & Mining Association (AEMA)
Spokane Valley, WA
January 30, 2024
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Hon. Pete Stauber, Chairman
Hon. Alexandria Ocasio-Cortez, Ranking Member
Subcommittee on Energy and Mineral Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: January 31, 2024 Energy and Mineral Resources Subcommittee of the
House Natural Resources Committee Legislative Hearing on H.R.
2925 and H.R. 6862
Dear Chairman Westerman, Ranking Member Grijalva, Chairman Stauber
and Ranking Member Ocasio-Cortez:
The American Exploration & Mining Association (AEMA) wishes to
express our support for
H.R. 2925, the bipartisan Mining Regulatory Clarity Act, and H.R.
6862, to amend the Fixing America's Surface Transportation Act (FAST-
41) to include certain mineral production activities as a covered
project. Both pieces of legislation would help secure our mineral
supply chains in the United States.
Who We Are and the Importance of the U.S. Minerals Mining Industry
AEMA is a 129-year-old, 1,800-member national trade association
representing the mineral development and mining industry, with members
residing across 46 states, 7 Canadian provinces or territories and 10
other countries. AEMA is the recognized national representative for the
exploration sector, the junior mining sector, as well as mineral
developers interested in maintaining access to public lands. Thus, AEMA
represents the entire mining life cycle, from exploration to mineral
extraction and then to reclamation and closure. More than 80 percent of
our members are small businesses or work directly for small businesses.
American miners continue to play an indispensable role in building
and defending our Nation. From foundations to roofs, power plants to
wind farms, roads and bridges to communication grids and data storage
centers, America's infrastructure begins and ends with minerals and
mining.
There is no question that the minerals we produce are indispensable
to modern society. They are also essential to fighting climate change,
and for zero-emission technologies such as wind turbines, solar panels,
storage batteries and EVs. As these technologies are deployed in ever-
greater numbers, the demand for minerals is skyrocketing, and our
Nation must do more to keep up.
Congress has taken note of this surge in demand, and through the
Infrastructure Investment and Jobs Act of 2021 and the Inflation
Reduction Act of 2022, has decided--and we agree--that it is
inappropriate, unwise and dangerous to rely on hostile, untrustworthy
or unstable countries to supply our country's minerals. Congress has
sent a clear message--Now is the time to get serious about building a
reliable mineral supply chain. AEMA and its members stand ready to help
build that supply chain right here in America.
Our members take great pride in producing the metals and other
important minerals America needs for national and economic security, as
well as the materials people use in their everyday lives. We are proud
of our members' contributions across the communities and regions where
they operate, many of which are rural areas facing significant economic
and social development challenges. Notably, the U.S. mining industry is
the safest, most environmentally responsible mining industry in the
world. Our members have repeatedly demonstrated that mining and
protecting the environment are compatible, as mineral producers make
possible the development of society's basic needs and consistently
minimize modern society's impacts on the environment.
We Need a Reliable Domestic Mineral Supply Chain
Recent global events have exposed the United States' supply chain
vulnerabilities, highlighting the importance of an abundant and
affordable supply of domestic minerals for America's future.
The fact is, global mineral demand is skyrocketing. As noted in a
report from the International Energy Agency, keeping global temperature
rise to below 2 degrees Celsius above preindustrial levels will
quadruple the demand by 2040 for the minerals needed to build wind
turbines, solar panels, and electric vehicles. A faster energy
transition--reaching net zero globally by 2050 as the Biden
administration has called for--would require critical mineral inputs to
increase sixfold by 2040.
Solar panels require silver, tin, copper, and lead; wind turbines
use rare earths, copper, aluminum, and zinc; electric vehicles are
built with copper, aluminum, iron, molybdenum; and rechargeable storage
batteries use lithium, vanadium, nickel, cobalt, and manganese.
President Biden has promised to convert the entire U.S. Government
fleet--about 640,000 vehicles by 2030--to EVs. That plan alone could
require a 12-fold increase in U.S. lithium production to manufacture
the lithium-ion batteries that power EVs, according to Benchmark
Minerals Intelligence, as well as increases in output of domestic
copper, nickel, and cobalt--and that's just for the U.S. government
vehicle fleet. The magnitude of the minerals needed for a 100 percent
EV market is even more staggering, and simply cannot be ignored.
Unfortunately, a lack of access to economically viable mineral
deposits and a lengthy, inefficient federal permitting system has
resulted in the United States being increasingly dependent on foreign
sources of strategic and critical minerals. It's time that we, as a
Nation, recognize this vulnerability and the vital importance of
minerals to our national security, our economy, and our everyday lives.
We have heard a lot over the years about the importance of energy
independence, but it is equally as important, if not more so, that we
are minerals independent.
Made in America must include ``mined in America'' and sourcing
minerals from U.S. mines that use state-of-the-art environmental
protection measures, put a premium on worker health and safety, and
have financial assurances that guarantee reclamation when mining is
complete.
Recycling will play an important role in meeting increasing metal
demand, but it will not be enough. The IEA's report estimates that by
2040, recycling metals from spent batteries could only supply about ten
percent of the minerals that will be needed.
The United States and our economy simply need more mines. According
to the USGS' Mineral Commodity Summaries 2023, our country's import
dependence for key mineral commodities has doubled over the past two
decades, with the United States now 100 percent import-reliant for 15
of its key minerals and more than 50 percent import-reliant for an
additional 36 key mineral commodities. This foreign reliance continues
despite the existence of significant mineral deposits of many of these
commodities within our borders. Moreover, U.S. mineral import reliance
continues to increase as mineral demand from essential industries, such
as energy and transportation, soars. Notably, the World Bank sees
mineral demand for advanced energy technologies jumping by nearly 500
percent by the year 2050.\1\ Copper demand alone may rise as much as
350 percent by 2050, according to one estimate.\2\
---------------------------------------------------------------------------
\1\ https://pubdocs.worldbank.org/en/961711588875536384/Minerals-
for-Climate-Action-The-Mineral-Intensity-of-the-Clean-Energy-
Transition.pdf
\2\ https://www.sciencedirect.com/science/article/abs/pii/
S0959378016300802
---------------------------------------------------------------------------
Support for H.R. 2925, the Mining Regulatory Clarity Act
A major threat to the future of mining on U.S. public lands is the
U.S. District Court's July 2019 decision in litigation challenging the
Forest Service's approval of the Rosemont Mine, Rosemont Copper
Company's proposed Arizona copper mine. The court's decision
incorrectly restricts the rights to use public lands for mineral
purposes to claims that contain a discovery of a valuable mineral
deposit and interprets the Mining Law in a manner that interferes with
claim owners' Mining Law rights to use public lands to explore for and
develop minerals.
The Rosemont ruling incorrectly limited the jurisdiction of the
Forest Service's surface management regulations to claims with a
discovery of a valuable mineral deposit. The Bureau of Land
Management's (BLM) and the Forest Service's regulations govern all
aspects of locatable mineral activities to ensure all mineral
activities comply with environmental protection mandates and to confirm
that all mining facilities are reasonably incident to the mining
project. Claim status is irrelevant in determining the applicability of
these regulations.
It has always been Congress' intent that the law must support and
encourage mining on public lands. Although Congress has amended the
Mining Law and developed other laws pertaining to public lands
management since 1872, the purpose of the Mining Law has not changed.
Congress has repeatedly preserved the foundational rights under Section
22 of the Mining Law that authorize citizens to enter, use, and occupy
public lands to explore for minerals and to develop mines.
We therefore strongly support the bipartisan Mining Regulatory
Clarity Act (H.R. 2925). The legislation is a durable solution that
simply codifies the decades-long framework prior to the Rosemont
decision. This bill clearly recognizes that maintaining security of
land tenure is essential for mining to occur on public lands and is
especially important in light of the skyrocketing demand for minerals.
Support for H.R. 6862
The Federal Permitting Improvement Steering Council (FPISC)
proposed a rule in September 2023 that would amend its regulations to
limit the scope of mining projects eligible for coverage under Title 41
of the FAST Act solely to critical minerals mining projects, as defined
by section 7002 of the Energy Act of 2020 and listed by the Director of
the U.S. Geological Survey (USGS). AEMA's members have extensive first-
hand experience with the Federal permitting process, and they are
significantly impacted by permitting decisions from an array of Federal
agencies. Thus, our members are key stakeholders when it comes to
developing a more efficient, timely and effective Federal permitting
process as envisioned under FAST-41.
AEMA vigorously opposes limiting eligibility solely to USGS-listed
``critical'' minerals projects, and in our formal comments we urged the
FPISC to withdraw the proposal immediately. AEMA appreciates that the
FPISC proposal expands the definition of the sector beyond ``the
process of extracting ore, minerals, or raw materials from the ground''
to include ``critical mineral beneficiation, processing, and
recycling.'' This is consistent with the need to actually produce the
final product minerals essential to the U.S. economy and recognizes
that much of existing mineral processing currently occurs overseas,
often in insecure jurisdictions. Given AEMA's support of the provision
to expand the definition of the mining sector, we urge Congress to
amend H.R. 6862 to include the expanded definition. However, we
emphasize that this provision should not be limited to USGS-listed
``critical'' minerals.
It should not be forgotten that multiple federal agencies maintain
their own lists of ``critical minerals'' or ``critical materials,''
including the departments of Energy and Defense, among others. These
lists are compiled for various reasons, not least of which is a
mineral's importance to the economy or weapons platforms, thus
underscoring its national security implications. FPISC gives no
explanation why they selected the USGS list, but in doing so, they have
elevated one agency's list in importance above the others.
FAST-41 was enacted to improve the timeliness, predictability,
transparency, and accountability of the Federal environmental review
and authorization processes for covered infrastructure projects. FAST-
41 coverage does not predetermine or affect the outcome of any Federal
decision-making process with respect to a covered project, nor modify
any required environmental review or public or tribal consultation
process.
Beyond mining, current FAST-41 sectors include renewable and
conventional energy production, electricity transmission, surface
transportation, aviation, ports and waterways, water resource projects,
broadband, pipelines, and manufacturing. It is important to remember
that mining stands at the front of the supply chain for these and
nearly every sector of our economy.
S&P Global published a report titled ``Inflation Reduction Act:
Impact on North America metals and mineral markets,'' which identified
protracted permitting as a key factor in the shortage of minerals,
stating: ``extended and uncertain timelines for permitting in the U.S.
and around the world are a major obstacle to bringing new [copper]
supply online to narrow that shortfall.'' This report cites the
complexity of lengthy, multi-agency permitting processes and post-
permit litigation risks as the primary reasons that permitting is so
difficult and fraught with uncertainties.
While AEMA's members stand ready to help, the need to address our
permitting vulnerabilities is more urgent than ever; now is not the
time to narrow mining sector eligibility. FPISC's 2021 vote to include
mining as a covered sector clearly recognized that mining projects
almost always involve the complex permitting processes that FAST-41 was
designed to facilitate. FAST-41 provides a pathway to reduce permitting
inefficiencies while retaining our world-class environmental
protections, but it must be available to the entire mineral mining
sector.
The surging global demand for minerals means other countries will
be competing for the same limited supplies, which will challenge the
United States' ability to obtain minerals from abroad. Although we may
need to obtain some minerals from our allies, we must responsibly
utilize our own resources whenever possible. Consequently, our
objective must be to get more mines permitted in the United States.
Unfortunately, the FPISC proposal to restrict FAST-41 eligibility to
only ``critical'' minerals projects will result in fewer mines being
permitted in a timely manner, not more.
Conclusion
Congress has consistently and repeatedly recognized that minerals
and mining are essential to all facets of our economy, society, and
national defense. For example, the Mineral and Mining Policy Act
(1970), FLPMA (1976), the National Minerals, Materials Policy Research
and Development Act (1980), the Energy Act (2020), the IIJA (2021), and
most recently the IRA (2022) all direct the executive branch agencies
to respond to the Nation's need for domestic minerals.
Unfortunately, these Congressional directives have gone largely
unheeded as more lands continue to be withdrawn from mineral entry and
permitting timelines, costs, and risks have become intolerable. Our
risky reliance on imported minerals is a direct result of five decades
of ignoring Congress' clear directives that minerals should be mined
from public lands to help satisfy the Nation's need for minerals.
Despite the urgent need to increase domestic mining and reduce our
dependency on foreign minerals, today it often takes 10 years or more
to permit a mine.
The findings in the IIJA that ``critical minerals are fundamental
to the economy, competitiveness, and security of the United States''
and that ``the Federal permitting process has been identified as an
impediment to mineral production and the mineral security of the United
States'' must result in constructive action to streamline permitting
and eliminate permitting impediments.
For the aforementioned reasons, we wholeheartedly support H.R. 2925
and H.R. 6862. We look forward to continuing to work with you to ensure
America has a secure and affordable supply of the minerals and metals
needed for our modern society.
Sincerely,
Mark Compton,
Executive Director
______
National Mining Association
and
Zero Emission Transportation Association
July 25, 2023
Hon. Kevin McCarthy, Speaker
Hon. Hakeem Jeffries, Democratic Leader
U.S. House of Representatives
Washington, DC 20515
Hon. Chuck Schumer, Senate Majority Leader
Hon. Mitch McConnell, Senate Minority Leader
U.S. Senate
Washington, DC 20510
Dear Speaker McCarthy, Leader Jeffries, Majority Leader Schumer,
and Minority Leader McConnell:
We write today in support of Section 444 within H.R. 4821,
legislation which would provide the certainty needed for critical
mineral production to continue in the United necessary for a cleaner
and more secure energy future, we hope you will give every possible
consideration to enacting this measure before the end of the year.
The legislative language contained in Section 444 within H.R. 4821
is reflective of the strong bipartisan support this provision enjoys in
the U.S. Senate and the U.S. House of Representatives. In the Senate,
corresponding bipartisan legislation (S. 1281; Mining Regulatory
Clarity Act) has been introduced by Senators Cortez Masto, Rosen,
Sinema, Risch, Crapo, and Murkowski and in the House of
Representatives, Congressman Amodei and Peltola have introduced H.R.
2925. Their combined advocacy for this measure not only highlights the
importance critical minerals play in our clean energy future, but also
a substantial number of jobs across the United States attributable to
responsible mining companies.
The necessity for this measure is highlighted by the fact that
decisions stemming from Center for Biological Diversity et al. v. U.S.
Fish and Wildlife Service et al have effectively paralyzed the ability
for the United States to operate mines efficiently and responsibly. In
the absence of the enactment of the Mining Regulatory Clarity Act,
decades of precedent and investment in the clean energy economy and
corresponding good-paying American jobs have been thrown into turmoil.
The enactment of this legislation is the single best way to provide the
appropriate amount of certainty needed to underpin the ability of the
United States to meet the extraordinary mineral demand necessary to
meet the challenge of clean energy future.
Thank you for your attention to this matter, your work to help
improve the federal permitting process, and your public service.
Sincerely,
Rich Nolan, Albert Gore
President and CEO Executive Director
National Mining Association Zero Emission Transportation
Association
______
Statement for the Record
Advanced Energy United
on H.R. 2925, Mining Regulatory Clarity Act of 2023
Dear Chair Westerman, Ranking Member Grijalva, Chair Stauber,
Ranking Member Ocasio-Cortez, and members of the Committee:
Advanced Energy United (``United'') appreciates the opportunity to
submit this statement for the record on H.R. 2925, the Mining
Regulatory Clarity Act of 2023.
United is an association of businesses that educates, engages, and
advocates for policies that allow our member companies to compete to
power our economy with 100 percent clean energy. We work with decision
makers at every level of government, as well as regulators of energy
markets, to achieve this goal. The businesses we represent are lowering
consumer costs, creating thousands of new jobs every year, and
providing the full range of clean, efficient, and reliable energy and
transportation solutions.
This goal of reaching a 100 percent clean energy future is what
drove United's endorsement of the Mining Regulatory Clarity Act when it
was first introduced in the Senate; we were pleased to see the House
companion bill introduced with similar, bipartisan support. Making the
transition to a 100 percent clean, fully electrified economy
necessitates the production of more critical resources, from lithium to
nickel and copper to graphite. This understanding that our clean energy
future is intrinsically tied to our national minerals policy is what
led to the development of United's policy principles on the mining,
reuse, and recycling of critical minerals in early 2023. These
principles--which pair the need for permitting reform that protects
workers, surrounding communities, and the environment with
comprehensive reuse and recycling policy--have served as our guide for
evaluating bills in this space. In our view, the Mining Regulatory
Clarity Act readily fits with these principles.
In order to build a robust supply chain for U.S. manufacturers of
advanced energy technologies, we need to expand U.S. mineral production
in a responsible and sustainable manner. By expanding mineral
production here in the U.S., we are not only addressing the issue of
foreign dependance for these commodities, but we are also ensuring that
the mining will be subject to stringent U.S. regulations that protect
workers, communities, and our natural resources. Unfortunately, the
Rosemont decision, which prompted the need for this legislative
clarification in the first place, injects in our view unnecessary
uncertainty into the future of all domestic mining operations; if left
unchecked, we fear it will ultimately prove detrimental for our supply
chains and a wholly clean energy economy.
We see this bill as a necessary step to reestablish business
certainty around our mining rules and regulations. It seeks only to
maintain the status quo by reaffirming prior legal interpretations and
historical applications of the law. We're at a critical juncture for
the clean energy future. While we will continue having larger
conversations and working towards passage of a comprehensive permitting
reform package, this bill represents a bipartisan proposal that can
reasonably be agreed to right now in order to address a pressing need.
Our industry is already facing growing demands amid our national clean
energy transition and, as such, needs timely certainty on rules and
regulations. This clarifying law is a step towards what the nation
needs to secure domestic supply chains for the clean energy future.
As evidenced by this statement for the record, our statement for
the record submitted to the Senate Energy and Natural Resources
Committee last year, as well as our endorsement when the bill was first
introduced, United supports this bipartisan legislation brought forward
by Representatives Amodei and Peltola wishes to see it move
expeditiously.
Sincerely,
Harry Godfrey,
Managing Director
______
NATIONAL INFRASTRUCTURE ALLIANCE
Washington, DC
November 28, 2023
Mr. Eric Beightel, Executive Director
Federal Permitting Improvement Steering Council
1800 M Street, NW Suite 6006
Washington, DC 20036
Re: Comments on Revising the Scope of the Mining Sector of Projects
That Are Eligible for Coverage under Title 41 of the Fixing
America's Surface Transportation Act
Dear Mr. Beightel:
The National Infrastructure Alliance opposes the Federal Permitting
Improvement Steering Council's proposal limiting the coverage of Title
41 of the Fixing America's Surface Transportation Act to apply solely
to critical mineral mining projects. The Council should support all
mining infrastructure projects.
The National Infrastructure Alliance (NIA) is a coalition of North
America's leading construction unions--the International Association of
Bridge, Structural, Ornamental and Reinforcing Iron Workers Union, the
International Union of Operating Engineers, the Laborers' International
Union of North America, and the United Brotherhood of Carpenters and
Joiners of America--representing over 1.7 million hardworking men and
women in the United States and Canada. NIA unions build North America's
transportation, energy, and water infrastructure, and the continent's
abundant natural resources play a vital role in virtually all aspects
of our work.
The Council unanimously voted to include mining as a covered sector
under Title 41 of the Fixing America's Surface Transportation Act
(FAST-41) back in January 2020. The vote clearly recognized that mining
projects involve the complex permitting processes that the Act was
designated to facilitate. By designating all mining as FAST-41 sector
in the 2020 vote, the Council chose not to pick winners and losers
among potentially qualified mining projects. The addition of mining as
a covered sector provides a pathway to reduce permitting inefficiencies
while retaining environmental protections.
The proposed rulemaking to limit the scope of the mining sector to
only apply to critical mineral projects is short sighted. There are
many minerals that are of vital importance to our economic and national
security that are absent from the United States Geological Survey's
(USGS) Critical Minerals List, which was recently updated in 2022. The
most glaring omissions to the list are copper, silver, gold, lead,
zinc, phosphate, and other minerals, which are indispensable to our
infrastructure and are essential components of consumer products,
military and defense equipment, numerous manufacturing sectors, medical
applications, and other uses. Copper, for example, is the most widely
used mineral for clean energy technologies, and it has a broad range of
electronic and industrial applications, from batteries and motors to
wind turbines. One modern offshore wind turbine requires over five tons
of copper. In contrast to the USGS, the Department of Energy recently
added copper to its list of critical materials.
Today, many minerals come from countries with the most egregious
environmental and labor standards in the world--countries like
Argentina, Chile, China, and the Democratic Republic of the Congo.
Nearly 40% of the world's copper is mined in Chile and Peru, and most
of the global supply is refined in China. The South American countries'
environmental and labor records, where workplace hazards and
occupational deaths frequently occur, raise significant concern.
China's prominence in the sector presents a raft of policy
considerations related to labor and human rights abuses, environmental
degradation, national security threats, and more. The federal
government's goal should be reducing our dependence on these countries
and creating a stable, domestic supply chain and an efficient
permitting process for mining minerals.
The National Infrastructure Alliance urges the Council to abandon
this proposal limiting the coverage of Title 41 of the Fixing America's
Surface Transportation Act to apply solely to critical mineral mining
projects and maintain coverage for all mining projects.
Sincerely,
Terry T. George,
Executive Vice President
______
UNITED STATES SENATE
November 1, 2023
Mr. Eric Beightel, Executive Director
Federal Permitting Improvement Steering Council
1800 M Street, NW, Suite 6006
Washington, DC 20036
Mr. Beightel:
We write to express our concerns regarding the proposed rule,
``Revising Scope of the Mining Sector of Projects That Are Eligible for
Coverage Under Title 41 of the Fixing America's Surface Transportation
Act.'' \1\ The mining of all minerals is essential to the development
of domestic infrastructure, and accordingly, it is imperative the
Federal Permitting Improvement Steering Council (FPISC) ensure that all
mining projects--for all minerals--are equally considered ``covered
projects'' for the purposes of Title 41 of the Fixing America's Surface
Transportation Act (FAST-41). Indeed, even the U.S. Department of the
Interior's own ``Interagency Working Group on Mining Laws, Regulations,
and Permitting'' did not suggest this change is needed in a report it
recently released regarding recommendations to reform domestic mining
policies.\2\
---------------------------------------------------------------------------
\1\ ``Revising Scope of the Mining Sector of Projects That Are
Eligible for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act,'' 88 Fed. Reg. 63,350 (Sept. 22, 2023).
\2\ See Interagency Working Grp. on Mining Laws, Regulations, and
Permitting, Recommendations to Improve Mining Laws on Pub. Lands (Sept.
2023).
---------------------------------------------------------------------------
The federal permitting process must be coordinated and transparent
in order for the United States to efficiently permit new energy and
infrastructure projects without undermining the value of critical
taxpayer and private sector investments. Consequently, Congress first
established FPISC in 2015 for the purpose of coordinating agency
actions between federal environmental reviews and large-scale,
critical, and ``covered'' infrastructure projects in the United States.
FAST-41 defines ``covered project'' to include ``any activity in the
United States that requires authorization or environmental review by a
Federal agency involving construction of infrastructure,'' regardless
of the mineral used in the construction of that infrastructure.\3\
---------------------------------------------------------------------------
\3\ 42 U.S.C. Sec. 4370m(6).
---------------------------------------------------------------------------
To that end, it still takes ``anywhere from seven to ten years or
more for a mining company to navigate through the federal application
process and appeals process through litigative measures'' before a
domestic mining operation can come online.\4\ This is particularly
problematic, given the pressing need for greater domestic sources of
minerals to meet manufacturing, energy, infrastructure, and national
security needs. Our nation's duplicative and inefficient permitting
process also puts the United States at a strategic disadvantage
compared to other mining countries like Australia and Canada, which
have permitting processes that consist of two to three years.\5\ FPISC,
in an effort to address this issue, subsequently voted in January 2021
to add all mining as a ``covered sector,'' without bias to the type of
mineral.\6\
---------------------------------------------------------------------------
\4\ Minerals Make Life, ``Delays in the U.S. Mine Permitting
Process Impair and Discourage Mining at Home,'' National Mining
Association (July 9, 2015).
\5\ Id.
\6\ ``Adding Mining as a Sector of Projects Eligible for Coverage
Under Title 41 of the Fixing America's Surface Transportation Act,'' 86
Fed. Reg. 1,281 (Jan. 8, 2021).
---------------------------------------------------------------------------
Permitting delays have been, and continue to be, one of the most
significant risks to meeting domestic mineral production goals--a fact
clearly recognized by FPISC in 2021. FPISC should be doing all it can
to facilitate the addition of mining projects to the FPISC dashboard of
covered projects, as significant investments are being made daily in
such projects, regardless of the type of minerals being mined.
Unfortunately, this misguided and shortsighted proposal disincentivizes
such investment.
The nation needs these investments to match the increasing mineral
demand necessary to support budding technologies, bolster domestic
supply chains, and strengthen our nation's national defense to reduce
our reliance on minerals from our geopolitical adversaries. While the
global demand for critical minerals ``would require six times more
mineral inputs in 2040 than today,'' it should not be lost on FPISC the
amount of other mined materials, such as crushed stone and gravel that
are needed for domestic infrastructure.\7\
---------------------------------------------------------------------------
\7\ ``Data by State,'' National Sand Stone and Gravel Association
(last accessed Oct. 2, 2023).
---------------------------------------------------------------------------
FPISC's proposal sends the wrong message to investors, industry
stakeholders, and our nation's allies by that the United States should
drastically limit the type of mining projects eligible under the
improved permitting process to projects with primary or byproduct
production of ``critical minerals,'' defined by the U.S. Geological
Survey (USGS). Not only does this subjective action contradict the
FPISC's mission of delivering transparency and timeliness to the
federal permitting process, but it also fails to consider the fact that
different agencies have different definitions of ``critical'' or
``strategic'' minerals or materials. The lack of consideration of these
varying differences in the proposal will undoubtedly limit the
effectiveness of FPISC's actions and increase our nation's strategic
vulnerabilities by making the United States more dependent on foreign
sources of minerals. Ultimately, this proposal will hinder mining
permitting predictability and efficiency while further empowering China
with its near-monopoly on the global supply of critical minerals.
Thank you for your attention to this matter. We urge FPISC to
abandon this proposal and use its existing authority to actively
support all mining infrastructure projects to unleash America's
national supply chains and processing capabilities. We look forward to
a response from you no later than November 30.
Sincerely,
Dan Sullivan John Barrasso, M.D.
United States Senator United States Senator
Shelley Moore Capito Joe Manchin III
United States Senator United States Senator
Catherine Cortez Masto Ted Cruz
United States Senator United States Senator
Bill Cassidy, M.D. James Lankford
United States Senator United States Senator
Michael S. Lee Kevin Cramer
United States Senator United States Senator
James E. Risch Roger Marshall, M.D.
United States Senator United States Senator
John Hoeven Cynthia M. Lummis
United States Senator United States Senator
Mike Rounds Katie Boyd Britt
United States Senator United States Senator
Mike Crapo Pete Ricketts
United States Senator United States Senator
Lisa Murkowski Thom Tillis
United States Senator United States Senator
Markwayne Mullin Mitt Romney
United States Senator United States Senator
______
UNITED STATES SENATE
November 15, 2023
Mr. Eric Beightel, Executive Director
Federal Permitting Improvement Steering Council
1800 M Street, NW, Suite 6006
Washington, DC 20036
Dear Mr. Beightel:
I am writing to express my concern regarding the effects of the
Federal Permitting Improvement Steering Council's (FPSIC) proposed rule
titled ``Revising Scope of the Mining Sector of Projects That Are
Eligible for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act'' (proposed rule),\1\ and to urge FPSIC to continue
utilizing as broad a definition of `covered project' as permissible.
---------------------------------------------------------------------------
\1\ ``Revising Scope of the Mining Sector of Projects That Are
Eligible for Coverage Under Title 41 of the Fixing America's Surface
Transportation Act,'' 88 Fed. Reg. 63,350 (Sept. 22, 2023).
---------------------------------------------------------------------------
FPSIC's federal permitting coordination process is a proven
mechanism to hasten the permitting process for various essential
infrastructure and energy projects. FAST-41 improves agency
coordination and establishes two-year completion goals--creating a more
efficient, predictable, and timely federal environmental review process
for covered projects. This system provides certainty for investors,
allowing projects to receive financing, while not sacrificing our
commitments to environmental protection and community input. Arizona is
home to the only mining project currently on the FAST-41 dashboard, and
I was proud to lead key updates to the FAST-41 program in the
Bipartisan Infrastructure Law that will continue to help grow our
domestic supply chains--from extraction to processing and refining.
Large-scale mining operations often require significant investment,
construction of infrastructure, and extensive federal reviews and
authorizations. For this reason, mining was added as a FAST-41 sector
in January 2021. FPISC's proposed rule, which limits mining projects
covered under FAST-41 to critical mineral projects, as defined by the
Department of the Interior (DOI) through the U.S. Geological Survey
(USGS) runs counter to America's goals of responsible domestic critical
mineral production. On-shoring this production strengthens our national
security, reduces our reliance on foreign markets controlled by
adversarial governments, fuels economic opportunities, and advances
energy security. Unfortunately, the materials necessary to achieve this
goal of independence go beyond those named in the proposed rule.
According to USGS, copper is not a designated critical mineral.
This ignores the crucial nature of copper as a wiring component in
renewable energy technologies, its importance to various defense
systems, and the significant projected increases in global demand in
the coming years.\2\ Further, the lack of USGS designation runs counter
to the Department of Energy's 2023 Critical Materials Assessment, which
identifies copper as a key material with a ``high risk of supply
disruption'' that is ``integral to clean energy technologies.'' \3\
---------------------------------------------------------------------------
\2\ S&P Global, ``Inflation Reduction Act: Impact on North America
metals and minerals market''. August 2023.
\3\ U.S. Department of Energy, Critical Materials Assessment. July
2023.
---------------------------------------------------------------------------
Under FPISC's proposed rule, copper mining projects will lose the
opportunity to become FAST-41 covered projects. Exclusion from the
FAST-41 program will allow these critical mining projects to experience
unreasonable permitting delays at a time when copper production is more
essential than ever.
If we are serious about reaching our nation's goals of reducing
climate emissions, and securing domestic mineral supply chains, the
proposed rule must take a more holistic look at all critical
components--like copper--to be covered under the proposed rule.
Sincerely,
Kyrsten Sinema
United States Senator
______
U.S. Chamber of Commerce
Washington, DC
February 6, 2024
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Dear Chairman Westerman and Ranking Member Grijalva:
The U.S. Chamber of Commerce supports H.R. 2925, the ``Mining
Regulatory Clarity Act of 2023,'' and we thank you for considering this
important legislation.
Rapidly increasing demand for critical minerals coupled with
advancing geopolitical instability makes developing a secure and
reliable domestic supply chain for critical minerals vital. H.R. 2925
would help remove permitting obstacles for domestic critical mineral
development and enable common sense construction and safety practices
at potential mine sites by establishing a process to enable operators
to use, occupy, and conduct operations on public land before mineral
deposit have been positively identified.
The Chamber urges you to favorably report H.R. 2925.
Sincerely,
Neil L. Bradley,
Executive Vice President,
Chief Policy Officer,
and Head of Strategic Advocacy
______
Mr. Stauber. I want to thank the witnesses for your
valuable testimony and your time before our Committee today.
The members of the Subcommittee may have some additional
questions for the witnesses, and we will ask you to respond to
these in writing. Under Committee Rule 3, members of the
Committee must submit questions to the Committee Clerk by 5
p.m. on Monday, February 5. The hearing record will be held
open for 10 business days for these responses.
If there is no further business, without objection, the
Committee stands adjourned.
[Whereupon, at 3:52 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Submissions for the Record by Rep. Grijalva
WESTERN SHOSHONE DEFENSE PROJECT
Elko, Nevada
November 21, 2023
House Committee on Natural Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: Western Shoshone Defense Project Opposition to the Mining
Regulatory Clarity Act
Dear President Biden, Senators and Representatives:
The Western Shoshone Defense Project (WSDP) firmly opposes the
Mining Regulatory Clarity Act, which represents an unprecedented
giveaway of public lands to mining corporations. Under the bill, mining
corporations would gain a near unlimited right to occupy as much public
land as they want for their mining operations. The companies would gain
the right to dump waste, dispose of toxic tailings, bulldoze roads, and
construct pipelines across public lands, even on lands of deep cultural
and ecological significance to Western Shoshone people. We urge you to
oppose the legislation, which would exacerbate the harms caused by the
mining industry.
Western Shoshone to this day use, occupy, live, hunt, gather and
pray on the land now called Nevada. In 1863, the Western Shoshone by
way of treaty allowed safe passage through Western Shoshone territory.
The 1863 Treaty of Ruby Valley also allowed mining, as mining was known
in 1863 by people who did not understand or comprehend the English
language. In 1864 Nevada became a state and eight short years later the
1872 Mining Law was established. This plan was orchestrated by a
governmental body that foresaw a future of mining resources at the
expense of everything the land has to offer including plant life,
animal life, and the most important resource, water. This same
governmental body would deceive the Western Shoshone people and would
break their own laws in order to achieve the end goal. Since the coming
of Europeans to our territory, the Western Shoshone have been forced to
sacrifice everything for the ``greater good'' to ``enhance the
economy'' while we watch that same entity destroy our land.
The Western Shoshone and the United States government have a long-
drawn-out legal history, where the legal system is stacked against all
Indigenous Nations in its jurisdiction. In 1999 and in the early 2000s
the United Nations and other international legal fora have recognized
that many of the legal problems and political obstacles facing the
Western Shoshone people stem from the foundations of United States
Federal Indian Law and Policy which falls far short of internationally
recognized standards of Indigenous rights. These laws and policies
which have been used against the Western Shoshone and other Indigenous
peoples in the U.S. stem from antiquated, racist concept known as the
``doctrine of discovery.'' See Johson v M'Intosh, 21 U.S. (8 Wheat) 543
(1823). This ``doctrine'' claims that Indigenous Peoples are
``heathen'', ``savage'' and ``childlike in nature''.
The U.S. has been directed previously through international
communication to review all existing laws and policies and to ensure
they are in compliance with contemporary human rights standards. Our
position continues to be that the antiquated laws such as the 1872
Mining Law, and aspects of federal Indian law such as the plenary power
doctrine must be addressed and reformed as they continue to impact
Indigenous peoples such as the Western Shoshone in an unequal and
racist manner based on colonial concepts such as the doctrine of
discovery.
Declaration of the violation of Western Shoshone rights to due
process, equality under the law, and right to property by the Inter-
American Commission on Human Rights (IACHR) is found in the (Final
Report 75/02). On March 6, 2002 the United Nations Committee on the
Elimination of Racial Discrimination (UNCERD) confirmed the Inter
American Commission's decision and rendered a full Urgent Action
decision (68(1)) against the United States. The decision specifically
instructs the United States to stop any further actions on Western
Shoshone lands and calls for the opening of an immediate dialogue.
As you know, we are currently in a time of change fundamentally,
environmentally, culturally and spiritually. As leaders of this
``free'' world it is time for you to examine your hearts and consider
righting the historical wrongs this government has done not only to the
Western Shoshone but to all Indigenous peoples of this nation.
We now are especially concerned with this legislation because four
key minerals that will be used for the energy transition--97% of
nickel, 89% of copper, 79% of lithium, and 68% of cobalt--are located
within 35 miles of Native American Reservations. In addition, many
existing and proposed mines are located on ``federal lands'' that is
actually treaty lands of the Western Shoshone as written in the 1863
Treaty of Ruby Valley.
The proposed legislation contains a series of provisions designed
to undermine the Federal Government's authority to safeguard public
lands. Under Section 2(e)(l)(B) of the Mining Regulatory Clarity Act,
mining companies would receive a statutory right to permanently occupy
and bury public lands under tons of toxic waste. Further Section
2(e)(l)(A) grants mining companies automatic rights-of-way for new
pipelines, transmission lines, and roads across public lands--
eliminating a central provision of the Federal Land Policy Management
Act that requires mining companies to receive a permit for such uses
just like every other industry operating on federal lands. The mining
law of 1872 is already overly permissive--having caused disastrous
consequences for our Indigenous communities, our health and our sacred
sites, and this legislation would only increase those harms in the
future.
As individuals with backgrounds in environmental health, forestry
and as outdoorsmen who once cared about the environment and who want to
protect resources for future generations; ask yourselves if this
legislation is one of ``enhancing conservation through innovation'' as
is the mission of this body. Your yes vote on this legislation will
negatively affect the future of the environment and people you are
sworn to protect.
The Mining Regulatory Clarity Act is poised to have devastating
consequences on our ancestral lands and resources. The creation of
tribal sacrifice zones in the name of the clean energy transition must
stop. Indigenous communities use what are now federal public lands for
resource collection, ceremonies, and other traditional cultural uses.
This Administration has vowed to safeguard our cultural resources and
to listen to tribes. The Mining Regulatory Clarity Act will impair our
ability to use our ancestral lands forever and we ask that you reject
it.
Sincerely,
Fermina Stevens,
Director
______
Statement for the Record
Charlie Olsen
Energy and Public Lands Policy Manager
National Parks Conservation Association (NPCA)
NPCA Position on H.R. 2925, the Mining Regulatory Clarity Act of 2023
Dear Chairman Stauber, Ranking Member Ocasio-Cortez, and members of
the Energy and Mineral Resources Subcommittee:
Since 1919, the National Parks Conservation Association (NPCA) has
been the leading voice of the American people in protecting and
enhancing our National Park System. On behalf of our 1.6 million
members and supporters nationwide, and the undersigned organizations, I
write to share our position on H.R. 2925, the Mining Regulatory Clarity
Act of 2023.
We appreciate the subcommittee looking at the General Mining Act of
1872 and the need to bring our nation's mining system to the same
standards as other types of extractive development on public lands.
This is especially relevant due to the growing demand for minerals
essential for the renewable energy transition and the subsequent growth
of domestic mining on our public lands. Extreme flooding, drought,
storms and fires pose a significant threat to the national park system,
often destroying the unique landscapes, wildlife, ecosystems and
cultural and historical objects that make these so special. We must
take immediate action to reduce greenhouse gases from fossil fuels to
prevent climate change from getting worse while preparing these
treasured landscapes for the impacts they cannot avoid. This includes a
rapid transition to renewable energy technologies.
Investments in the clean energy economy have grown significantly in
recent years and need to grow exponentially in the years and decades
ahead. The issue our nation faces is how do we get the materials
necessary to build out these renewable energy technologies. Demand
reduction through energy efficiency improvements, recycling and
developing a robust circular economy are all helpful, but the reality
is that some amount of mining is necessary. To fully transition to a
renewable energy economy under current conditions requires more
minerals and metals than we currently have in circulation today. The
mining for these renewable energy minerals must be done with the
highest environmental safeguards and with the greatest consideration
for national parks, special places, sacred sites and local communities.
We believe this means meaningful changes to the mining law.
H.R. 2925--The Mining Regulatory Clarity Act: NPCA opposes this
bill, which disrupts the effective management of our public lands,
including vital conservation efforts. While the proposed intent of the
bill is pitched as a ``fix'' to the ancillary uses issue raised by the
Rosemont Decision, H.R. 2925 goes further than fixing that decision by
abolishing the discovery requirement altogether, one of the longest
standing pieces of the claim system under the 1872 law. Under current
law, the discovery of a valuable mineral must be proven on a claim for
said claim to be considered valid. Without the discovery of a valuable
mineral, a claim can be challenged, and the mineral rights revoked.
The proof of discovery is essential for conservation tools such as
mineral withdrawals, monument designations and even the creation of new
national parks. Importantly, when any of these conservation tools are
used, all existing and valid rights are still preserved. Valid claims
pose a threat to park resources due to the potential for new mining to
happen as allowed under the Mining in the Parks Act. Under the proposed
changes in H.R. 2925, there would no longer be a requirement for
claimants to prove the discovery of a valuable mineral to hold or
validate their claim to the land. This essentially removes the ability
of the federal government to contest superfluous claims on lands
reserved for conservation. Despite what proponents contend, this
legislation does NOT return the mining law to the status quo.
Moreover, across the National Park System there are currently 1100
active mine claims held by private entities in 15 parks, covering
thousands of acres. Many of these claims are already patented prior to
the creation of the surrounding park, but many remain unpatented and
therefore subject to the validity examination that H.R. 2925 would
dramatically deteriorate. Under the legislation as written, the
unpatented claims across the National Park Service (NPS) would
effectively become private property and NPS would have insufficient
power to challenge potentially damaging activities on these lands.
The Rosemont decision has apparently created new issues for mining
companies, many of which have found other ways of addressing it
already. By potentially undermining other conservation goals and
important public lands, H.R. 2925 as written, is not the appropriate
solution to this problem. Other options exist, such as those in the May
2023 DOI solicitor's opinion, for mining companies to pursue for their
ancillary activities, such as Mill-site claims and tools available
under the Federal Land Policy and Management Act (FLPMA). Nevertheless,
H.R. 2925 is the wrong approach for addressing this issue and would
only exacerbate the threat of mining in our precious National Parks.
NPCA supports a renewable energy transition and acknowledges some
domestic mining may be necessary for the transition. We look forward to
working with the subcommittee to meaningfully modernize our mining laws
to both advance the development of less-damaging mining projects and to
ensure that national parks and other special places, communities and
the environment are not irreparably harmed. Ultimately, we believe that
most mining operations are incompatible with the mandate of the
National Park system to protect natural and cultural resources in
perpetuity. Any reform must include the removal of the 1,100 active
mine claims from the National Park System.
Thank you for considering our views. If you have any questions or
need additional information, please contact me.
______
ORUTSARARMIUT NATIVE COUNCIL
Bethel, AK
July 25, 2023
Re: Orutsararmiut Native Council's Opposition to the Mining Regulatory
Clarity Act
Dear President Biden, Senators and Representatives:
The Orutsara1miut Native Council firmly opposes the Mining
Regulatory Clarity Act, which represents an unprecedented giveaway of
public lands to mining corporations. Under the bill, mining
corporations would gain a near unlimited right to occupy as much public
land as they wanted for their mining operations. The companies would
gain the right to dump waste, dispose of toxic tailings, bulldoze
roads, and construct pipelines across public lands, even on lands of
deep cultural and ecological significance to Orutsararmiut Native
Council. We urge you to oppose the legislation, which would exacerbate
the harms caused by the mining industry.
We are especially concerned with this legislation because four key
minerals that will be used for the energy transition--97% of nickel,
89% of copper, 79% of lithium, and 68% of cobalt--are located within 35
miles of Native American Reservations. In addition, many existing and
proposed mines are located on federal lands adjacent to tribal lands.
Our lives, unique culture, and safety are at stake on our Ancestral
Lands. The threat to our ecosystem in which we truly depend upon is
under immediate danger. Our Indigenous population will be decimated
because our food security from our natural environment will disappear
with any ecosystem imbalance.
The proposed legislation contains a series of provisions designed
to undermine the Federal Government's authority to safeguard public
lands. Under Section 2(e)(l)(B) of the Mining Regulatory Clarity Act,
mining companies would receive a statutory right to permanently occupy
and bury public lands under tons of toxic waste. Further Section
2(e)(l)(A) grants mining companies automatic rights-of-way for new
pipelines, transmission lines, and roads across public lands--
eliminating a central provision of the Federal Land Policy Management
Act that requires mining companies to receive a permit for such uses
just like every other industry operating on federal lands. The mining
law of 1872 is already overly permissive-having caused disastrous
consequences for our Indigenous communities, our health and our sacred
sites, and this legislation would only increase those harms in the
future.
The Mining Regulatory Clarity Act is poised to have devastating
consequences on our ancestral lands and resources. The creation of
tribal sacrifice zones in the name of the clean energy transition must
stop. Indigenous communities use what are now federal public lands for
resource collection, ceremonies, and other traditional cultural uses.
This Administration has vowed to safeguard our cultural resources and
to listen to tribes. The Mining Regulatory Clarity Act will impair our
ability to use our ancestral lands forever and we ask that you reject
it.
Sincerely,
Brian M. Henry,
Executive Director
______
PIMA COUNTY BOARD OF SUPERVISORS
RESOLUTION NO. 2023-12
OPPOSING THE PERMITTING FOR MINING NEEDS ACT
AND THE MINING REGULATORY CLARITY ACT, AND SUPPORTING
MEANINGFUL MINING REFORM
WHEREAS, Pima County and the Pima County Board of Supervisors have long
advocated for meaningful reform of the 1872 Mining Law, acknowledging
that mining is necessary and should occur in places and with methods
that protect the health, safety, and welfare of our County's residents;
and
WHEREAS, on January 2, 2023, the ``Permitting for Mining Needs Act of
2023'' was introduced as H.R. 209 in the U.S. House of Representatives;
and
WHEREAS, on April 25, 2023, the ``Mining Regulatory Clarity Act'' was
introduced as S. 1281 in the U.S. Senate; and
WHEREAS, both Acts do not provide meaningful mining reform and instead
would make it easier for mining companies to gain access to federal
lands at the expense of all other uses such as recreation, tourism,
conservation, watershed protection, climate mitigation, traditional
uses by Tribal Nations, cultural and historic preservation, healthy
forest management, and other uses that contribute significantly to the
local, state, and national economies; and
WHEREAS, both Acts would allow mining companies to ``. . . use, occupy,
and conduct operations on public land, with or without the discovery of
a valuable mineral deposit.'' This includes dumping waste and tailings
on federal land without the need to prove valid mining claims, as well
as on federal land absent of claims; and
WHEREAS, both Acts would authorize actions where mining companies
secure rights on our federal public lands through unpatented mining
claims without proving that the claims are valid, actions that have
occurred for too many years; and
WHEREAS, both Acts are intended to legislatively reverse recent
decisions by the United States District Court for the District of
Arizona (``District Court'') in 2019 and the Ninth Circuit Court of
Appeals (``Ninth Circuit'') in 2022 halting the construction of the
proposed Rosemont Mine on the eastern slopes of the Santa Rita
Mountains, located in Pima County, and the dumping of waste rock and
tailings on 2,500 acres of unpatented mining claims in the National
Forest; and
WHEREAS, the District Court's ruling, which the Ninth Circuit later
affirmed, confirmed a long-standing concern, raised by Pima County
since the beginning of the Rosemont Mine federal review process in
2006, that Federal agencies such as the U.S. Forest Service failed to
consider whether Rosemont held valid unpatented mining claims; and
WHEREAS, the District Court's ruling confirmed that the Forest Service
needs to consider reasonable alternatives when reviewing mining
proposals, providing the opportunity for a more balanced approach to
public lands management.
NOW THEREFORE BE IT RESOLVED THAT:
1. The Pima County Board of Supervisors opposes the Permitting for
Mining Needs Act and the Mining Regulatory Clarity Act, as
well as any similar legislation that attempts to allow
mining projects on public lands in areas without mining
claims and in areas with unproven mining claims, and
supports meaningful mining reform;
2. The Pima County Board of Supervisors calls on Arizona's
Congressional delegation to oppose the Permitting for
Mining Needs Act and the Mining Regulatory Clarity Act;
3. The Pima County Board of Supervisors directs the County
Administrator and the County's Federal lobbyists to take
the necessary measures to communicate Pima County's
opposition to the Permitting for Mining Needs Act and the
Mining Regulatory Clarity Act;
4. The Pima County Board of Supervisors directs that communications
to our Congressional delegation emphasize Pima County's
support for meaningful mining reform and our record of
supporting mining projects in Pima County that adhere to
local health, safety, and conservation guidelines;
5. The Pima County Board of Supervisors opposes piece-meal
legislation that does not address the issue of mining
reform comprehensively; and
6. The Pima County Board of Supervisors affirms support for the
rulings by the District Court and the Ninth Circuit Court
of Appeals, which is consistent with past resolutions and
actions of the Pima County Board of Supervisors.
Passed by the Board of Supervisors of Pima County, this 16th day of
May, 2023.
Adelita S. Grijalva
Chair, Pima County Board of Supervisors
ATTEST:
Clerk of the Board
APPROVED AS TO FORM:
Daniel Jurkowitz, Deputy County Attorney
______
Pyramid Lake Paiute Tribe
Nixon, Nevada
January 3, 2024
Re: Pyramid Lake Paiute Tribe Opposition to the Mining Regulatory
Clarity Act
Dear President Biden, Senators and Representatives:
The Pyramid Lake Paiute Tribe firmly opposes the Mining Regulatory
Clarity Act, which represents an unprecedented giveaway of public lands
to mining corporations. Under the bill, mining corporations would gain
a near unlimited right to occupy as much public land as they wanted for
their mining operations. The companies would gain the right to dump
waste, dispose of toxic tailings, bulldoze roads, and construct
pipelines across public lands, even on lands of deep cultural and
ecological significance to the Pyramid Lake Paiute Tribe. We urge you
to oppose the legislation, which would exacerbate the harms caused by
the mining industry.
We are especially concerned with this legislation because four key
minerals that will be used for the energy transition--97% of nickel,
89% of copper, 79% of lithium, and 68% of cobalt--are located within 35
miles of Native American Reservations. In addition, many existing and
proposed mines are located on federal lands adjacent to tribal lands.
The proposed legislation contains a series of provisions designed
to undermine the Federal Government's authority to safeguard public
lands. Under Section 2(e)(l)(B) of the Mining Regulatory Clarity Act,
mining companies would receive a statutory right to pe1manently occupy
and bury public lands under tons of toxic waste. Further Section
2(e)(l)(A) grants mining companies automatic rights-of-way for new
pipelines, transmission lines, and roads across public lands--
eliminating a central provision of the Federal Land Policy Management
Act that requires mining companies to receive a permit for such uses
just like every other industry operating on federal lands. The mining
law of 1872 is already overly permissive--having caused disastrous
consequences for our Indigenous communities, our health and our sacred
sites, and this legislation would only increase those harms in the
future.
The Mining Regulatory Clarity Act is poised to have devastating
consequences on our ancestral lands and resources. The creation of
tribal sacrifice zones in the name of the clean energy transition must
stop. Indigenous communities use what are now federal public lands for
resource collection, ceremonies, and other traditional cultural uses.
This Administration has vowed to safeguard our cultural resources and
to listen to tribes. The Mining Regulatory Clarity Act will impair our
ability to use our ancestral lands forever and we ask that you reject
it.
Sincerely,
Steven Wadsworth,
Vice Chairman
______
SAN XAVIER DISTRICT OF THE TOHONO O'ODHAM NATION
Tucson, Arizona
January 26, 2024
President Joseph Biden
The White House
Washington, D.C.
Mark Kelly Krysten Sinema
United States Senate United States Senate
Congressman Raul Grijalva Congressman Paul Gosar
House of Representatives House of Representatives
Re: San Xavier District of the Tohono O'odham Nation's Opposition to
the Mining Regulatory Clarity Act
Dear President Biden, and Honorable Senators, and Representatives:
The San Xavier District government of the Tohono O'odham Nation
firmly opposes the Mining Regulatory Clarity Act, which represents an
unprecedented giveaway of public lands to mining corporations. Under
the bill, mining corporations would gain a near unlimited right to
occupy as much public land as they wanted for their mining operations.
Mining companies would gain the right to dump waste, dispose of toxic
tailings, bulldoze roads, and construct pipelines across public lands,
even on lands of deep cultural and ecological significance to the San
Xavier District of the Tohono O'odham Nation. We urge you to oppose the
legislation, which would exacerbate the harm caused by the mining
industry.
We are especially concerned with this legislation because four key
minerals that will be used for the energy transition--97% of nickel,
89% of copper, 79% of lithium, and 68% of cobalt--are located within 35
miles of Native American Reservations. In addition, many existing and
proposed mines are located on federal lands adjacent to tribal lands.
Our people and our lands have been affected by Asarco Copper Mine
adjacent and south of the San Xavier Indian Reservation since 1955.
There is potential leakage of sulfates from the mine tailings to our
aquifer. We are supporting local environmental groups opposing two
proposed , mines on our ancestral lands affecting our cultural
properties and prohibiting us from gathering natural resources on the
lands. Hudbay, a Canadian based company, has proposed mining on the
east and west slopes of the Santa Rita Mountain range ``Cewe Duag''
(long mountain in our language). They are Rosemont, and Copper World
mines respectively.
The proposed legislation contains a series of provisions designed
to undermine the Federal Government's authority to safeguard public
lands. Under Section 2(e)(l)(B) of the Mining Regulatory' Clarity Act,
mining companies would receive a statutory right to permanently occupy
and bury public lands under tons of toxic waste. Further Section
2(e)(l)(A) grants mining companies automatic rights-of-way for new
pipelines, transmission lines, and roads across public lands--
eliminating a central provision of the Federal Land Policy Management
Act that requires mining companies to receive a permit for such uses
just like every other industry operating on federal lands. The mining
law of 1872 is already overly permissive--having caused disastrous
consequences for our Indigenous communities, our health and our sacred
sites, and this legislation would only increase those harms in the
future.
The Mining Regulatory Clarity Act is poised to have devastating
consequences on our ancestral lands and resources. The creation of
tribal sacrifice zones in the name of the clean energy transition must
stop. Indigenous communities use what are now federal public lands for
resource collection, ceremonies, and other traditional cultural uses.
This Administration has vowed to safeguard our cultural resources and
to listen to tribes. The Mining Regulatory Clarity Act will impair our
ability to use our ancestral lands forever and we ask that you reject
it.
Sincerely,
Austin Nunez,
Chairman
______
January 29, 2024
Representatives:
On behalf of our millions of members and supporters, the following
conservation, climate, Indigenous and tribal-affiliated organizations
call on you to oppose H.R. 2925, the so-called ``Mining Regulatory
Clarity Act.'' We write to share the below concerns and reasons for
opposition for the House Natural Resources Subcommittee on Energy &
Mineral Resources hearing on H.R. 2925 on January 31, 2024.
The Mining Regulatory Clarity Act represents an unprecedented, de
facto giveaway of America's cherished public lands to mining
corporations, upending and reversing over one hundred years of public
land law precedent. Under the bill, anyone--for a nominal fee--gains
permanent rights to occupy land, construct massive waste dumps, and
build roads and pipelines across public lands to the detriment of all
other values. This would preclude all other types of development and
use, including renewable energy projects, recreation, and traditional
cultural uses.
The Mining Regulatory Clarity Act is not a return to ``status quo''
as some proponents have argued. Instead, this legislation undermines
the federal government's long standing authority to safeguard public
lands, threatening the protection of irreplaceable cultural,
environmental, water, and economic resources. That's because the bill
conveys mining claimants (including international mining conglomerates)
with a right to permanently occupy federal public lands. If an
alternative use--like an electric transmission line or a renewable
energy project--needed to cross ``claimed'' public lands, mining
companies could extract large sums of money from the federal government
in exchange for giving up their claim. As an example, if this bill were
law in the 1900s, Grand Canyon National Park wouldn't exist as it does
today. Future Senator Ralph Cameron filed mining claims covering the
famous Bright Angel Trail, but they were invalidated due to a lack of a
valuable mineral deposit. Had S. 1281/H.R. 2925 been law, Cameron would
have had a vested right to undertake a wide variety of exclusionary or
destructive activities on these claims and those claims would have
superseded the Grand Canyon National Monument's (later National Park's)
protections. Under S. 1281, all future prospective protected lands
could suffer this fate.
This legislation would lead to vast unintended consequences by
allowing mining companies, and any individual, to easily weaponize it
for their own gain. A person or company wishing to block a solar, wind,
or transmission project could simply file a claim in the path of the
project by pounding four stakes into the ground and paying a nominal
fee and then exercise their new right to occupy the land to block it
from moving forward.
Under Section 2(e)(1)(B) of S. 1281/H.R. 2925, mining companies
would receive a statutory right to permanently occupy and bury our
federal public lands under tons of toxic waste. Modern large scale
mines often produce far more toxic waste than the minerals they
extract, risking water contamination and other harms. Further, Section
2(e)1(A) grants mining companies automatic rights-of-way for far-flung
infrastructure such as new pipelines, transmission lines, and roads
across public lands. The change eliminates a central provision of the
Federal Land Policy and Management Act (FLPMA) that requires mining
companies to receive a permit for such uses, just like everyone else
operating on public lands. Section 2(e)(2) would also eliminate FLPMA's
requirement that the mining company pay ``fair market value'' for using
public lands for these facilities.
The Mining Regulatory Clarity Act was authored in reaction to
recent court decisions that affirmed and enforced long-standing law.
According to proponents of this egregious corporate handout, the need
for this bill arises from a court case known as Rosemont, as well as
two subsequent federal court rulings, where companies proposed using
invalid mining claims to dump enormous quantities of waste generated at
the mine site. The problem with that was obvious and courts blocked
them: holding an invalid mining claim confers no right to use or occupy
the lands covered by the claim unless a valuable mineral is discovered.
The proponents also argue that this legislation is essential to
secure our clean energy supply chain. Contrary to industry's sky-is-
falling rhetoric about critical mineral supply shortages, there are a
variety of ways to meet the demand for these minerals during our
transition to a clean energy economy. This includes--in conjunction
with carefully sited mines governed by high environmental standards--
deep investment in a circular minerals economy that recycles and reuses
the maximum amount of these minerals possible. In addition, mining
companies have options to acquire the lands needed for new mines, waste
sites, and processing facilities without violating the law or seeking
handouts from Congress. In fact, one large copper operation in Arizona,
ASARCO's Ray Mine, recently obtained over 9,000 acres in an exchange to
allow for continued mining. There cannot be a just and equitable
transition to a carbon-free future, with legislation like this that
sacrifices our lands, waters, public health, sacred sites and
communities.
The mining law of 1872 is already overly permissive--mining has
polluted the headwaters of 40 percent of western watersheds, fiscal
assurances for clean up are routinely inadequate, and companies pay no
royalties for the minerals they extract from public lands. Reform is
needed to safeguard waters, communities, and the environment.
This bill would do the opposite, further tipping the scales away
from communities, the environment, and our clean energy future--giving
the mining industry the power to dictate how we use our public lands.
Instead, Congress should work to balance our nation's clean energy
mineral needs with all other public land uses, such as for renewable
energy projects, cultural and historical resources, ranching,
recreation, water resources, and wildlife. Our organizations ask you to
oppose this legislation in all its forms and reject it as a part of any
conversation around energy permitting.
Sincerely,
Alaska Clean Water Advocacy Malach Consulting
Alaska Community Action on
Toxics Mother Kuskokwim Tribal Coalition
Alaska Wilderness League Multicultural Alliance for a Safe
Environment
Anthropocene Alliance Native Movement
Arizona Faith Network Natural Resources Defense Council
Arizona Mining Reform
Coalition Nevada Conservation League
Arizona Trail Association New Mexico Environmental Law
Center
Black Hills Clean Water
Alliance Northern Alaska Environmental
Center
Californians for Western
Wilderness Northern Front Range Broadband of
Great Old Broads for Wilderness
Cascade Forest Conservancy Norton Bay Watershed Council
Center for Biological
Diversity Okanogan Highlands Alliance
Citizens Awareness Network Oregon Natural Desert Association
Citizens to Protect Smith
Valley, NV Patagonia Area Resource Alliance
Clark County Adventure
Riders (NV) People of Red Mountain
Coalition for Wetlands and
Forests Physicians for Social
Responsibility Pennsylvania
Conservation Northwest Progressive Leadership Alliance
of Nevada
Cook Inletkeeper Public Citizen
Defenders of Wildlife Quiet Use Coalition
Dot Lake Village Save the Scenic Santa Ritas
Association
Earthjustice Save the South Fork Salmon, Inc.
Earthworks Sierra Club
Endangered Species
Coalition Silver Valley Community Resource
Center
Friends of Buckingham Sky Island Alliance
Friends of the Kalmiopsis Soda Mountain Wilderness Council
Friends of the Sonoran
Desert Southern Utah Wilderness Alliance
Gila Resources Information
Project Standing Trees
Great Basin Resource Watch The Alaska Center
Great Bear Foundation The Clinch Coalition
Healthy Environment
Alliance of Utah The Wilderness Society
Hispanic Access Foundation Trustees for Alaska
Idaho Conservation League Tucson Audubon Society
Idaho Rivers United Uranium Watch
Information Network for
Responsible Mining WaterLegacy
Kahtoola, Inc Western Mining Action Network-
Indigenous Caucus
Kalmiopsis Audubon Society Western Shoshone Defense Project
LEAD Agency, Inc. Western Watersheds Project
League of Conservation
Voters Wild Arizona
Living Rivers Wisconsin Mining
Los Padres ForestWatch
______
CITY OF TUCSON
RESOLUTION NO. 23626
RELATING TO FEDERAL LEGISLATION; OPPOSING THE PERMITTING FOR MINING
NEEDS ACT OF 2023 AND THE MINING REGULATORY CLARITY ACT, INTRODUCED IN
THE CONGRESS AS H.R. 209, S. 1281 and H.R. 2925; CALLING ON ARIZONA'S
CONGRESSIONAL DELEGATION TO OPPOSE THIS AND SIMILAR LEGISLATION;
SUPPORTING THE CLEAN ENERGY AND MINERALS REFORM ACT; AND DECLARING AN
EMERGENCY
WHEREAS, on January 2, 2023, the ``Permitting for Mining Needs Act of
2023'' was introduced as H.R. 209 in the U.S. House of Representatives;
and
WHEREAS, on April 25, 2023, the ``Mining Regulatory Clarity Act'' was
introduced as S. 1281 in the U.S. Senate (with an equivalent act
introduced in the House as H.R. 2925); and
WHEREAS, both Acts do not provide meaningful mining reform and instead
would make it easier for mining companies to gain access to federal
lands at the expense of all other uses such as recreation, tourism,
conservation, watershed protection, climate mitigation, traditional
uses by Tribal Nations, cultural and historic preservation, healthy
forest management, and other uses that contribute significantly to the
local, state, and national economies; and
WHEREAS, both Acts would allow mining companies to ``. . . use, occupy,
and conduct operations on public land, with or without the discovery of
a valuable mineral deposit.'' This includes dumping waste and tailings
on federal land without the need to prove valid mining claims, as well
as on federal land absent of claims; and
WHEREAS, both Acts would authorize actions where mining companies
secure rights on our federal public lands through unpatented mining
claims without proving that the claims are valid, actions that have
occurred for too many years; and
WHEREAS, both Acts are intended to legislatively reverse recent
decisions by the United States District Court for the District of
Arizona (``District Court'') in 2019 and the Ninth Circuit Court of
Appeals (``Ninth Circuit'') in 2022 halting the construction of the
proposed Rosemont Mine on the eastern slopes of the Santa Rita
Mountains, located in Pima County, and the dumping of waste rock and
tailings on 2,500 acres of unpatented mining claims in the National
Forest; and
WHEREAS, the District Court's ruling, which the Ninth Circuit later
affirmed, confirmed a long-standing concern, raised by Pima County
since the beginning of the Rosemont Mine federal review process in
2006, that Federal agencies such as the U.S. Forest Service failed to
consider whether Rosemont held valid unpatented mining claims; and
WHEREAS, the District Court's ruling confirmed that the Forest Service
needs to consider reasonable alternatives when reviewing mining
proposals, providing the opportunity for a more balanced approach to
public lands management; and
WHEREAS, the proposed mining operations at Rosemont threaten an area of
public lands that provide a disproportionately high amount of water for
runoff and groundwater recharge for the Tucson basin, and are proposed
for an area that is recognized worldwide for its extraordinary
biodiversity; and
WHEREAS, the Clean Energy Minerals Reform Act, as sponsored by Sen.
Heinrich and Rep. Grijalva, would enact meaningful mining reform,
including the establishment of royalties on mining operations and a
leasing system similar to what applies to oil and gas industries, while
protecting national parks and monuments and other public lands and key
environmental resources:
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE CITY OF
TUCSON, ARIZONA, AS FOLLOWS:
SECTION 1. The Mayor and Council opposes the Permitting for Mining
Needs Act and the Mining Regulatory Clarity Act, as well as any similar
legislation, including but not limited to H.R. 209, S. 1281 and H.R.
2925, that attempts to allow mining projects on public lands in areas
without mining claims and in areas with unproven mining claims; and
that makes it easier for mining companies to gain access to federal
lands at the expense of all other uses such as recreation, tourism,
conservation, watershed protection, climate mitigation, traditional
uses by Tribal Nations, cultural and historic preservation, healthy
forest management, and other uses that contribute significantly to the
local, state, and national economies.
SECTION 2. The Mayor and Council calls on Arizona's Congressional
delegation to oppose the Permitting for Mining Needs Act and the Mining
Regulatory Clarity Act, as well as any similar legislation.
SECTION 3. The Mayor and Council supports the Clean Energy Minerals
Reform Act, as sponsored by Sen. Heinrich and Rep. Grijalva, which
would enact meaningful mining reform while protecting national parks
and monuments and other public lands and key environmental resources;
and call on Arizona's Congressional delegation to support this
legislation.
SECTION 4. The various City officers and employees are authorized and
directed to perform all acts necessary or desirable to give effect to
this Resolution, including but not limited to taking measures necessary
and appropriate to communicate the City of Tucson's opposition to the
Permitting for Mining Needs Act and the Mining Regulatory Clarity Act
and its support for the Clean Energy Minerals Reform Act.
SECTION 5. WHEREAS, it is necessary for the preservation of the peace,
health, and safety of the City of Tucson that this Resolution become
effective immediately, an emergency hereby is declared to exist, and
this Resolution shall be effective immediately upon its passage and
adoption.
PASSED, ADOPTED AND APPROVED by the Mayor and Council of the City of
Tucson, Arizona, June 6, 2023.
ATTEST:
CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY
______
January 29, 2024
Hon. Bruce Westerman, Chairman
Hon. Raul Grijalva, Ranking Member
House Natural Resources Committee
1324 Longworth House Office Building
Washington, DC 20515
Dear Chair Westerman, Ranking Member Grijalva, and Members of the
House Committee on Natural Resources:
The undersigned organizations are writing on behalf of our millions
of members across the country to express our support for reforming
hardrock mineral extraction standards in the United States to better
protect communities and the environment. Simultaneously, we write to
express serious concerns about the Mining Clarity Regulatory Act, which
represents an unprecedented, de facto giveaway of America's cherished
public lands to mining corporations, upending and reversing over one
hundred years of public land law precedent.
As organizations advocating for a zero-emission transportation
future, we know that electrifying the vehicle fleet is an essential
strategy to reducing fossil fuel emissions and addressing the climate
crisis. Electric vehicles (EVs) also eliminate tailpipe emissions of
harmful air pollutants that cause asthma and respiratory diseases,
especially among Black, Indigenous, and other communities of color.\1\
However, without adequate protections for workers, communities, and
environments near mining and processing sites, we risk replicating the
harms of fossil fuel extraction. The United States must commit to
protecting people, communities, and special places as it pursues the
clean energy transition.
---------------------------------------------------------------------------
\1\ US EPA, O. (2021, September 20). Study Finds Exposure to Air
Pollution Higher for People of Color Regardless of Region or Income
[Overviews and Factsheets]. https://www.epa.gov/sciencematters/study-
finds-exposure-air-pollution-higher-people-color-regardless-region-or-
income
---------------------------------------------------------------------------
Mining for hardrock minerals--the group of subterranean resources
that include those necessary for EV batteries, including lithium,
nickel, copper, and cobalt--is an extremely disruptive and harmful
industry. In fact, metals mining is the U.S.' most toxic industry,
according to the Environmental Protection Agency (EPA), responsible for
45% of toxics releases to air, water, and soil in 2020.\2\ Modern
mining uses highly specialized equipment to move billions of tons of
soil, redirect rivers, and permanently alter landscapes. Mining
generates an incredible amount of toxic waste, including tailings and
perpetual acid drainage, which cause hazards to human and environmental
health and must be sequestered and monitored, often for centuries.\3\
Tailings spills are increasing in frequency and severity around the
world.\4\ Despite the potential for harm, mining is governed by a 151
year old statute from the U.S.'s initial settlement and colonization of
the West. Given the projected increase in mining activity to source the
rapid buildout of electric vehicles and renewable energy, we need to
update our mining laws and rules to protect workers, communities, and
the environment with the highest possible standards.
---------------------------------------------------------------------------
\2\ Toxics Release Inventory--What is it? (n.d.). Earthworks.
Retrieved May 19, 2023, from https://earthworks.org/issues/toxics-
release-inventory-what-is-it/
\3\ Safety First: Guidelines for Responsible Mine Tailings
Management. (2022, May 31). Earthworks. https://earthworks.org/
resources/safety-first/
\4\ Protecting Communities from Tailings Disasters. (n.d.).
Earthworks. Retrieved May 19, 2023, from https://earthworks.org/issues/
protecting-communities-from-tailings-disasters/
---------------------------------------------------------------------------
Indigenous communities are particularly vulnerable, since 97% of
nickel, 89% of copper, 79% of lithium and 68% of cobalt reserves and
resources in the U.S. are located within 35 miles of Native American
reservations.\5\ Expanding mining under our current mining law--passed
in 1872-- puts Indigenous communities at risk and perpetuates current
and historic injustices.
---------------------------------------------------------------------------
\5\ Mining Energy-Transition Metals: National Aims, Local
Conflicts. (2021, June 3). https://www.msci.com/www/blog-posts/mining-
energy-transition-metals/02531033947
There are many acts the United States government can take to ensure
this transition is actually just and does not harm Indigenous and other
---------------------------------------------------------------------------
mining-affected communities, including:
Congress and the Administration can move to reform the
1872 Mining Law and the implementing rules to ensure mining
companies are held to the highest environmental, human
rights, and labor standards. Mining reform should allow for
better oversight of mines to ensure compliance with
standards, protection of sensitive ecosystems, and cleanup
of old mine sites.
Congress and the Administration can take action to build a
robust circular economy to reduce the need for virgin
material extraction and increase the supply of more
responsibly sourced materials.
The Administration can uphold Indigenous peoples' right to
Free, Prior, and Informed Consent, as guaranteed by the
United Nations Declaration on the Rights of Indigenous
Peoples.
The Administration can promote the use of robust community
benefits agreements and other due diligence mechanisms that
protect communities from environmental harm and ensure that
workers have safe, high road jobs and a free and fair
chance to join a union and collectively bargain.
As advocates committed to a healthier future, we support a truly
just transition to clean transportation that does not come at the
expense of Indigenous communities or the environment. We believe that
it is possible to address climate change and reduce transportation
emissions through vehicle electrification while protecting communities
and the environment. However, the Mining Clarity Reform Act, which
would give the mining industry the power to dictate how we use our
public lands, does none of these things. We urge Congress and the
Administration to take swift action to reform our mining laws and build
a circular economy.
Sincerely,
Center for Biological
Diversity League of Conservation Voters
(LCV)
Climate Reality Chicago
Metro MI Air MI Health
Earthjustice Natural Resources Defense Council
Earthworks Plug In America
Ecology Center Public Citizen
Environmental Working Group
(EWG) Sierra Club
EVHybridNoire Southwest Detroit Environmental
Vision
GreenLatinos United Women in Faith
Hip Hop Caucus Warehouse Workers for Justice
IL Environmental Council WE ACT for Environmental Justice
Interfaith Power & Light
______
HUALAPAI TRIBE
OFFICE OF THE CHAIRPERSON
June 6, 2023
The President
The White House
1600 Pennsylvania Ave.
Washington, DC 20500
Re: Hualapai Tribe's Opposition to the Mining Regulatory Clarity Act
Dear President Biden, Senators and Representatives:
The Hualapai Tribe firmly opposes the Mining Regulatory Clarity
Act, which represents an unprecedented giveaway of public lands to
mining corporations. Under the bill, mining corporations would gain a
near unlimited right to occupy as much public land as they wanted for
their mining operations. The companies would gain the right to dump
waste, dispose of toxic tailings, bulldoze roads, and construct
pipelines across public lands, even on lands of deep cultural and
ecological significance to the Hualapai Tribe. We urge you to oppose
the legislation, which would exacerbate the harms caused by the mining
industry.
We are especially concerned with this legislation because four key
minerals that will be used for the energy transition--97% of nickel,
89% of copper, 79% of lithium, and 68% of cobalt--are located within 35
miles of Native American Reservations. In addition, many existing and
proposed mines are located on federal lands adjacent to tribal lands.
The Tribe is very concerned with a lithium exploration project located
on Bureau of Land Management lands directly adjacent to tribal lands in
the Big Sandy Valley that threatens Ha'Kamwe, a sacred medicinal
spring. In addition, numerous notice-level activities are occurring
throughout the Sandy Valley for a variety of minerals.
The proposed legislation contains a series of provisions designed
to undermine the Federal Government's authority to safeguard public
lands. Under Section 2(e)(l)(B) of the Mining Regulatory Clarity Act,
mining companies would receive a statutory right to permanently occupy
and bury public lands under tons of toxic waste. Further Section
2(e)(1)(A) grants mining companies automatic rights-of-way for new
pipelines, transmission lines, and roads across public lands--
eliminating a central provision of the Federal Land Policy Management
Act that requires mining companies to receive a permit for such uses
just like every other industry operating on federal lands. The mining
law of 1872 is already overly permissive--having caused disastrous
consequences for our Indigenous communities, our health and our sacred
sites, and this legislation would only increase those harms in the
future.
The Mining Regulatory Clarity Act is poised to have devastating
consequences on our ancestral lands and resources. The creation of
tribal sacrifice zones in the name of the clean energy transition must
stop. Indigenous communities use what are now federal public lands for
resource collection, ceremonies, and other traditional cultural uses.
This Administration has vowed to safeguard our cultural resources and
to listen to tribes. The Mining Regulatory Clarity Act will impair our
ability to use our ancestral lands forever and we ask that you reject
it.
Sincerely,
Sherry J. Parker,
Chairwoman
______
January 30, 2024
Hon. Pete Stauber, Chairman
Hon. Alexandria Ocasio-Cortez, Ranking Member
Subcommittee on Energy and Mineral Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: Advancing comprehensive mining legislation
Dear Chairman Stauber and Ranking Member Ocasio-Cortez:
The undersigned hunting, fishing, outdoor recreation, and
conservation organizations are writing to share our perspective
regarding the Mining Regulatory Clarity Act (H.R. 2925), which is being
considered in the Energy and Mineral Resources Subcommittee's
legislative hearing on January 31, 2024.
The Mining Regulatory Clarity Act seeks to address a narrow set of
legal uncertainties stemming from the Rosemont judicial decision.
However, H.R. 2925 goes far beyond the historic application of the 1872
Mining Law and in doing so jeopardizes fish and wildlife habitat and
public lands. In short, the approach of this legislation is to simply
make all mining claims valid--with or without the discovery of a
valuable mineral deposit--so long as required fees are paid. While this
approach would resolve uncertainty associated with the Rosemont
decision, it would also create unintended consequences because it does
not distinguish between lands that are open for mining and those that
have been withdrawn from mining laws, such as wilderness areas and
national monuments. This is problematic because numerous mining claims
preexist designations for many of these areas, including approximately
1,100 mining claims in National Park units.
In the Rosemont case, the proponent had a valid mining claim. Its
plan of operations, however, proposed to dispose of nearly two billion
tons of waste rock on adjacent National Forest land. The District Court
and the Ninth Circuit court of appeals found that Rosemont needed to
establish they had a valid and existing right prior to allowing the
dumping of the waste.
Under existing regulations, mining can only be allowed in protected
areas if preexisting claims are valid, meaning that there has been the
discovery of a valuable mineral deposit.\1\ This requirement
establishes a high bar to meet before a valid right is established on
mining claims within protected areas where mining is otherwise
prohibited. However, if provisions of the Mining Regulatory Clarity Act
were to become law, it would eliminate the valuable discovery standard,
even in ``protected'' areas, and it would be unlawful to deny mining
and exploration activities on all mining claims.
---------------------------------------------------------------------------
\1\ See 43 CFR Sec. 3809.100, ``after the date on which the lands
are withdrawn from appropriation under the mining laws, BLM will not
approve a plan of operations or allow notice-level operations to
proceed until BLM has prepared a mineral examination report to
determine whether the mining claim was valid before the withdrawal, and
whether it remains valid.''
Moreover, under the proposed legislation these claimant rights also
apply to incidental activities that are not located on mining claims,
such as road construction across public land to access a mining claim.
Importantly, these claimant rights do not just apply to plans of
operations for commercial mining operations that were the focus of the
Rosemont case--these provisions would extend to all phases of mining,
including prospecting and exploration, which the Rosemont decision does
not affect. The effect is that a claim holder in good standing would
now have a right explicitly codified in law to not only mine on any
claim upon which required fees have been paid, but to also construct
reasonably incidental roads and other infrastructure, even just for the
purposes of prospecting on a mining claim.
A more targeted, holistic solution is needed that not only provides
certainty for the mining industry, but that also establishes a 21st
century mining law that conserves and restores fish and wildlife
habitat, sacred sites and drinking water supplies. We urge Congress to
enact a comprehensive solution that provides a path forward balancing
conservation with a sustainable domestic mining industry, including the
following elements:
1. Security of tenure. Legislation to resolve uncertainties
surrounding the Rosemont decision must be narrowly focused
to address ancillary uses reasonably necessary and incident
to a plan of operations to actually mine a valuable mineral
deposit. These rights should not extend to prospecting and
exploration activities. Additionally, exploration, mining
or related activities should not be allowed in protected
areas withdrawn from mining laws unless a valid right
(i.e., valuable mineral discovery) was established prior to
the protective designation.
2. Modernize mining law. Congress should establish a royalty and/or
fee on the extraction of hardrock minerals from public
lands that is both fair for the mining industry and that
generates revenue to help clean up the legacy of abandoned
hard rock mines. Additionally, a modern mining law should
provide some level of discretion for public land management
agencies to determine--upfront--lands available for mining
activities. This is the same way public land management
agencies determine lands suitable for oil and gas leasing
and other industrial land uses. An analogue for Congress to
consider is the Surface Coal Mine Reclamation Act and its
Abandoned Mineland Fund which has generated more than $11
billion to help clean up abandoned coal mines.
3. Empower Good Samaritan cleanups: Volunteer, third parties want to
help clean up some of the tens of thousands of abandoned
mines polluting the environment. Unfortunately, enormous
liability risks preclude cleanup efforts. The Good
Samaritan Remediation of Abandoned Hardrock Mines Act would
create a pilot program that provides non-liable Good
Samaritan parties with a targeted, narrow liability shield
would allow projects to move forward that improve water
quality for the environment and downstream communities
impacted by abandoned mines.
We recognize that the Rosemont decision has created a great deal of
uncertainty for mining on public lands that are open to mining, but a
solution should not create uncertainty for the future of protected
public lands. We stand ready to work collaboratively with lawmakers,
the mining industry, and other public land stakeholders to chart a path
forward for comprehensive legislation that helps clean up the mistakes
of the past and prevents future impacts to clean water and healthy fish
and wildlife habitat.
Sincerely,
Backcountry Hunters and Anglers
Theodore Roosevelt Conservation Partnership
Trout Unlimited
______
January 30, 2024
Hon. Pete Stauber, Chairman
Hon. Alexandria Ocasio-Cortez, Ranking Member
Subcommittee on Energy and Mineral Resources
1324 Longworth House Office Building
Washington, DC 20515
Re: Comments on H.R. 2925, scheduled to be heard by the subcommittee on
January 31, 2024
Dear Congressmembers Stauber and Ocasio-Cortez:
We write to express our strong opposition to H.R. 2925. We have
helped administer the Mining Law (while working in the Department of
the Interior in both career and non-career positions) and have taught
and written about Mining Law issues for many years.
Simply put, H.R. 2925 is the worst so-called ``reform'' of the
Mining Law we have ever seen. It is shocking, and we use that word
advisedly, in the way it opens to extortion the hundreds of millions of
acres of national forests and other public lands to which the Mining
Law applies.
The problem is apparent on the face of the act.
``A [mining] claimant shall have the right to use, occupy, and
conduct operations on public land . . . without discovery of a
valuable mineral deposit, if . . . the claimant makes a timely
payment of the location fee . . . and the claim maintenance fee
. . .'' (emphasis added)
This text does not explicitly require a claimant to conduct
``operations'' in order to ``use'' or ``occupy'' public lands.
Moreover, it defines ``operations'' very broadly, as ``any activity
reasonably incident to'' things like ``prospecting,'' ``exploration,''
``development,'' or ``processing.''
In short, H.R. 2925 gives any locator or holder of a mining claim
the ``right to use [and] occupy . . . public land'' for payment to the
U.S. government of a mere $205 per year per 20-acre claim. (Currently,
the current claim location fee is $40; the claim maintenance fee,
$165.) And it explicitly authorizes loosely defined ``operations'' on
public land ``regardless of whether that incidental activity is carried
out on a mining claim . . ..'' This ``Clarity Act'' is such a
mischievous giveaway of a ``right to occupy public land'' that it ought
to be called the ``Mining Charity Act.''
Consider what is likely to happen if the Clarity Act became law.
Suppose X wants to occupy a lovely tract of public lands as a base for
hunting, angling, a yoga retreat, or any of a myriad of other things.
Or suppose X learns that a large tract of public land is being
considered for, say, legitimate mineral activity, or for a site for a
renewable energy project, a transmission line, a ski area, or for any
number of other possible uses. Lacking all scruples, X seizes the
opportunity the Clarity Act presents for making an easy buck (some
might call it blackmail).
After checking to make sure the lands are open to new claim
location (as tens of millions of acres are), it locates one or more
mining claims, pays the $205-per-claim fee, and begins to occupy the
public lands claimed and other public lands in the vicinity.
Variation One: X brings along tools and devices that could be
used for prospecting, and perhaps scratch a little dirt, to
make a facial case for ``prospecting'' to meet the Clarity
Act's loose definition of an ``operation.'' Variation Two: X
builds a power generation or other kind of industrial facility
on public lands (as noted above, whether or not it is actually
on a mining claim is irrelevant under the Clarity Act's
definition of ``operations'') and, if questioned, asserts that
it is ``reasonably incident'' to mineral activity.
The U.S. government, Native American entities with ancestral
connections to the lands, and other members of the public (which could
include legitimate mineral developers \1\) protest X's occupancy as
interfering with legitimate uses and objectives served by public land.
---------------------------------------------------------------------------
\1\ It is stunning to us that, despite much contemporary discussion
about reforming the Mining Law in order to facilitate the development
of so-called ``strategic minerals'' on federal land, the industry and
its allies are promoting legislation that would almost certainly
thwart, rather than facilitate, their extraction!
---------------------------------------------------------------------------
What if anything can they do about it under the Clarity Act?
Nothing, so far as we can see.
Under current law, the government could challenge X's claim on the
ground it has not made a discovery of a valuable mineral deposit. But
the Clarity Act removes that vital tool from the government's
toolbox.\2\
---------------------------------------------------------------------------
\2\ While the BLM and the Forest Service have rules regulating
occupancy and other uses of mining claims (36 CFR Part 228; 43 CFR Part
3715), they would become unenforceable to the extent they are
contradicted by the Clarity Act's new grant of a broad statutory right
to ``occupy'' public land simply upon payment of the requisite fees.
By eliminating the bedrock requirement that mining claims are not
legally valid unless they are supported by a discovery of a valuable
mineral deposit--a requirement that has been a fundamental part of the
Mining Law for nearly 152 years--the proposed legislation leaves a
buyout as the only practical way to eliminate such claims. And in the
negotiation of the buyout amount, practically all the leverage would be
---------------------------------------------------------------------------
with the claimant.
We are not just imagining this. The Mining Law has historically
been subject to widespread abuse of exactly this kind. One notorious
example arose more than a century ago, when for years Ralph Cameron
used spurious mining claims he located on the most popular hiking trail
in the Grand Canyon to extort money from park visitors. In the 1960s,
Merle Zweifel located many thousands of mining claims over hundreds of
thousands of acres of public lands with a similar objective, including
along the proposed route of the Central Arizona Project aqueduct and on
public land thought to be valuable for oil shale development in western
Colorado.\3\ (His motivation, as he later admitted to a Wall Street
Journal reporter, was ``a lust for money.'' \4\) It took years of
litigation to eliminate Cameron's, Zweifel's and other similar abusive
claims, and it was only possible because the abusers could not show a
discovery of a valuable mineral deposit on their claims.\5\ H.R. 2925's
grant of an open-ended ``right to occupy'' public lands would mean that
would no longer work.
---------------------------------------------------------------------------
\3\ These and similar abuses are recounted in detail, with sources,
in Leshy, The Mining Law: A Study in Perpetual Motion (1987), at 77-83.
\4\ B. Newman, ``Never Mined: Merle Zweifel Claims Acres of Public
Land, But What Is He Up To?'' Wall Street Journal, January 20, 1972, p.
1, col. 1.
\5\ See, e.g., Cameron v. United States, 252 U.S. 450 (1920); see
also United States v. Zweifel, 508 F.2d 1150 (10th Cir.), cert. denied
sub nom Roberts v. United States, 423 U.S. 829 (1975).
---------------------------------------------------------------------------
*****
What makes this even more troublesome is that the so-called
``problem'' H.R. 2959 purports to address--the Rosemont court decision
\6\--in fact does not shackle the legitimate mining industry.\7\ Hudbay
Minerals, the foreign company seeking to develop Rosemont, made a
deliberate decision to try to use regular mining claims (which it
located on 2700 acres of national forest land) as the site for the huge
waste dumps and tailings piles its mine would produce. Its decision
left it vulnerable to the challenge that these claims did not support a
valuable mineral deposit. In fact, both the geological evidence and
Hudbay's intent to bury the claimed land under hundreds of millions of
tons of waste rock and tailings convincingly demonstrated that the
claims contained no valuable mineral deposits. Upon reaching that
conclusion, the federal courts set aside the Forest Service's decision
to allow Hudbay to use the public lands it claimed that way.
---------------------------------------------------------------------------
\6\ Center for Biological Diversity v. U.S. Fish & Wildlife
Service, 33 F.4th 1202 (9th Cir. 2022).
\7\ The industry and supporters of the Clarity Act have argued that
the Ninth Circuit`s ruling in the Rosemont case ``clashes with numerous
Supreme Court decisions over a century'' (NMA witness, Dec. 12 Senate
hearing). We have taught and written about the Mining Law for many
decades and are aware of no such Supreme Court decisions. Had they
existed, surely the Ninth Circuit would have had to grapple with them.
---------------------------------------------------------------------------
In fact, Hudbay had several other options to secure land for its
waste/tailings dumps. It could have located ``millsite'' claims on the
public land, something the Mining Law has permitted since 1872.
(Millsite claims have long been routinely used by hardrock miners for
such purposes.) Hudbay initially chose not to do that because millsites
are smaller (maximum five acres, compared to 20 acres for a regular
mining claim) and involve more red tape.\8\
---------------------------------------------------------------------------
\8\ Around the time the federal district court issued its initial
ruling, the company located mill sites as a kind of hedge against an
adverse ruling.
Or, it could have sought to exchange lands it owned or acquired for
more conveniently-located public lands, as several large mines found on
---------------------------------------------------------------------------
public lands have done.
Or, it could have acquired non-federal lands in the vicinity to use
for waste/tailings dumps. The availability of this option was made
abundantly clear by Hudbay's revelation when the Ninth Circuit Court of
Appeals turned down its appeal. On the very same day the court decision
was released, it announced that it had acquired approximately 4,500
acres of private land in the vicinity precisely for such use.\9\
---------------------------------------------------------------------------
\9\ See May 12, 2022 Press Release of Hudbay Minerals, The U.S.
Department of Justice and Hudbay Receive Rosemont 9th Circuit Court
Ruling; Hudbay Continues to Advance Copper World (May 12, 2022), found
at https://hudbayminerals.com/investors/press-releases/press-release-
details/2022/The-U.S.-Department-of-Justice-and-Hudbay-Receive-
Rosemont-9th-Circuit-Court-Ruling-Hudbay-Continues-to-Advance-Copper-
World/default.aspx.
Or, it could have applied for special use permits to use public
lands under various laws. A recent Opinion by the Interior Department's
Solicitor addressed these and still other ways the hardrock mining
industry could pursue large mining operations on federal land without
the need for legislative ``reform.'' \10\
---------------------------------------------------------------------------
\10\ Solicitor's Opinion M-37077, Use of Mining Claims for Mine
Waste Deposition, and Rescission of M-37012 and M-37057 (May 16, 2023),
https://www.doi.gov/media/document/m-37077-use-mining-claims-mine-
waste-deposition-and-rescission-m-37012-and-m-37057-5.
Although all those alternatives were and still are available to the
hardrock mining industry, it and its allies have chosen instead to seek
to have Congress intervene. But characterizing H.R. 2925 as simply a
clarification in the law grossly understates the mischief it would
cause. It would, we believe, likely prove to be nothing short of a
public land policy disaster. Once that became clear, Congress would
have to revisit the matter. In the meantime, the executive branch would
likely be forced to limit the opportunity for abuse and extortion we
have described by withdrawing all federal lands from the location of
new mining claims.
*****
Finally, it is remarkable that, in addition to wreaking havoc, H.R.
2925 makes no effort to correct obvious problems with the antiquated
Mining Law. Most glaring is the fact that it gives mining companies a
free ride, as they pay no royalty for the privilege of extracting
valuable minerals from the public lands. Every other mineral owner in
the nation--whether on state, tribal or private land--receives some
value-based payment when it allows minerals to be extracted. (Congress
itself, in legislation it adopted nearly a century ago, insisted that
states must receive fair market value for minerals extracted from lands
the U.S. gave them at statehood! \11\)
---------------------------------------------------------------------------
\11\ See 44 Stat. 1026 (1927), codified at 43 U.S.C. Sec. 870; see
also The Mining Law, supra n. 3, at 328-39.
Congress has required the U.S. to receive fair market value when
fossil fuels or fertilizer minerals are extracted from public lands.
But not when so-called hardrock minerals are extracted from public
lands, including national forests, under the Mining Law of 1872.\12\
Indeed, those lands may be the only ones on the entire planet where the
landowner receives no such payment for such mining.
---------------------------------------------------------------------------
\12\ It is also worth noting that the Mining Law covers not only
metals like gold, silver, and copper, but also so-called ``uncommon
varieties'' of common substances like sand, gravel, and building stone.
69 Stat. 368 (1955), codified at 30 U.S.C. Sec. 611. If not an
``uncommon variety,'' such substances must be purchased from the
government for fair market value. According to a recent GAO study, well
over a hundred currently approved operations, covering tens of
thousands of acres of public lands, produce ``uncommon varieties'' of
common substances. https://www.gao.gov/products/gao-20-461r. The
``uncommon variety'' issue has given rise to a number of controversies,
such as a recent one involving the vast expansion of a limestone quarry
on public lands on the outskirts of Glenwood Springs, Colorado,
triggering opposition from local governments and their allies. https://
loveglenwood.org/legal-action/glenwood-springs-citizens-alliance-v-u-s-
bureau-of-land-management/.
---------------------------------------------------------------------------
Even the National Mining Association recognizes that the free ride
the industry enjoys is a defect requiring correction.\13\ Yet H.R. 2925
does nothing to redress it. Instead, it would exacerbate the Mining
Law's serious defects by giving claimants effective control of vast
tracts of public lands for the price of modest claim filing and
maintenance fees.
---------------------------------------------------------------------------
\13\ See http://www.nma.org/pdf/041508_mining_law.pdf. To be sure,
the NMA favors a net royalty that would apply only prospectively, to
new mining claims; that is, they would continue to exempt from any
royalty payment the hundreds of thousands of existing mining claims
currently found on millions of acres of public land.
For these reasons, we strongly urge the committee not to advance
---------------------------------------------------------------------------
H.R. 2925. We appreciate your consideration of our views.
Sincerely,
John Leshy \14\
---------------------------------------------------------------------------
\14\ Emeritus Professor, University of California College of the
Law San Francisco, and former Associate Solicitor (1977-1980) and
Solicitor (1993-2001), U.S. Department of the Interior.
Sam Kalen \15\
---------------------------------------------------------------------------
\15\ Visiting McKinney Family Chair in Environmental Law (2023-
2024), IU Robert H. McKinney School of Law; William T. Schwartz
Distinguished Professor of Law, University of Wyoming College of Law
(for identification only).
Mark Squillace \16\
---------------------------------------------------------------------------
\16\ Raphael J. Moses Professor of Natural Resources Law,
University of Colorado Law School (for identification only).
Bret Birdsong \17\
---------------------------------------------------------------------------
\17\ Professor of Law, William S. Boyd School of Law, University of
Nevada, Las Vegas (for identification only).
[all]