[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
H.R. 7662, H.R. 7807, H.R. 8952,
AND H.R. 10005
=======================================================================
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
__________
Tuesday, November 19, 2024
__________
Serial No. 118-150
__________
Printed for the use of the Committee on Natural Resources
[GRAPHIC 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
57-458 PDF WASHINGTON : 2025
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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
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CONTENTS
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Page
Hearing Memo..................................................... v
Hearing held on Tuesday, November 19, 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................................. 7
Panel I:
Hageman, Hon. Harriet M., a Representative in Congress from
the State of Wyoming....................................... 4
Obernolte, Hon. Jay, a Representative in Congress from the
State of California........................................ 5
Zinke, Hon. Ryan K., a Representative in Congress from the
State of Montana........................................... 6
Houlahan, Hon. Chrissy, a Representative in Congress from the
Commonwealth of Pennsylvania............................... 10
Statement of Witnesses:
Panel II:
Williams, Colin, Program Coordinator, Mineral Resources
Program, U.S. Geological Survey, U.S. Department of the
Interior, Moffett Field, California........................ 12
Prepared statement of.................................... 14
Questions submitted for the record....................... 16
Lombard, Cheryl, Senior Program Director, Power,
Infrastructure, and Minerals, ClearPath Action, Washington,
DC......................................................... 16
Prepared statement of.................................... 18
Questions submitted for the record....................... 22
Travis, Jonathon, Principal, Severance Tax, Ryan, LLC,
Houston, Texas............................................. 22
Prepared statement of.................................... 24
Johnson, Derf, Deputy Director, Montana Environmental
Information Center, Helena, Montana........................ 28
Prepared statement of.................................... 29
White Clay, Frank, Chairman, Crow Tribe of Indians, Montana.. 35
Prepared statement of.................................... 37
Additional Materials Submitted for the Record:
U.S. Department of the Interior, Statement for the Record on
H.R. 8952.................................................. 56
U.S. Department of the Interior, Statement for the Record on
H.R. 10005................................................. 58
Submissions for the Record by Representative Graves
Department of Labor, 2024 List of Goods produced by Child
Labor or Forced Labor.................................. 60
Submissions for the Record by Representative Ocasio-Cortez
ApsaaLooke Allottees Alliance, Letter to the Senate...... 9
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.epsTo: House Committee on Natural Resources Republican Members
From: Energy and Mineral Resources Subcommittee Staff, Rob
[email protected], x6-2466, Jeanne
Kuehl--Jeanne. [email protected], x6-8312, and Will King--
Will.King@mail. house.gov, x5-2925
Date: Tuesday, November 19, 2024
Subject: Legislative Hearing on H.R. 7662, H.R. 7807, H.R. 8952, and
H.R. 10005
________________________________________________________________________
_______
The Subcommittee on Energy and Mineral Resources will hold a
legislative hearing on H.R. 7662 (Rep. Houlahan), ``Critical Minerals
Security Act of 2024''; H.R. 7807 (Rep. Obernolte), Intergovernmental
Critical Minerals Task Force Act''; H.R. 8952 (Rep. Zinke), ``Crow
Revenue Act''; and H.R. 10005 (Rep. Hageman), ``Expedited Appeals
Review Act'' or the ``EARA'', on Tuesday, November 19, 2024, at 2:15
p.m. in 1334 Longworth House Office Building.
Member offices are requested to notify Jacob Greenberg
(Jacob.Greenberg @mail.house.gov) by 4:30 p.m. on November 18, 2024, if
their Member intends to participate in the hearing.
I. KEY MESSAGES
Adversarial nations like China are increasing their
investments mining around the globe. H.R. 7662 would
require the Department of the Interior (DOI) to provide
reports to Congress outlining which countries control which
minerals and rare earth elements in the global supply
chain.
H.R. 7807 would establish an ``Intergovernmental Critical
Minerals Task Force'' that would facilitate cooperation
between Federal, State, and local governments, and industry
to develop strategies to combat China's massive influence
in the critical minerals supply chain.
H.R. 8952 is a land transfer that the Crow Tribe of
Montana emphatically supports. The Hope Family Tracts on
the Crow Reservation would transfer about 4,600 acres of
private subsurface inholdings to the Crow Tribe of Montana.
In return, the Tribe would transfer 4,530 acres of federal
subsurface interests and 940 acres of federal surface
interests to the Hope Family.
DOI's Interior Board of Land Appeals (IBLA) drawn-out
appeals process has led to significant backlogs.
Additionally, the IBLA is especially deferential to DOI's
respective bureaus. H.R. 10005 would force the IBLA to
issue final decisions within six months, cutting red tape
and ensuring quicker resolutions to keep projects moving
forward.
II. WITNESSES
Panel I (Members of Congress):
To Be Announced
Panel II:
Dr. Colin Williams, Program Coordinator, Mineral Resources
Program, U.S. Geological Survey, U.S. Department of the
Interior, Moffett Field, California [All bills]
Ms. Cheryl Lombard, Senior Program Director--Power,
Infrastructure, and Minerals, ClearPath Action, Washington,
D.C. [H.R. 7807]
Mr. Frank White Clay, Chairman, Crow Tribe of Indians,
Montana [H.R. 8952]
Mr. Jonathon Travis, Principal, Severance Tax, Ryan, LLC,
Houston, Texas [H.R. 10005]
Mr. Derf Johnson, Deputy Director, Montana Environmental
Information Center, Helena, Montana [Minority Witness][H.R.
7807, H.R. 8952, H.R. 7662]
III. BACKGROUND
H.R. 7662 (Rep. Houlahan), ``Critical Minerals Security Act of 2024''
H.R. 7662 would require a report from the Secretary of the
Interior, in consultation with other relevant agencies, on critical
mineral and rare earth element resources around the globe and also
establishes a process by which the Secretary of the Interior--in
consultation with the Secretary of State--aids U.S. citizens looking to
divest stock in international critical mineral investments. It also
directs the Secretary of the Interior to develop a strategy to
collaborate with allied countries to establish advanced mining,
refining, separation, processing technologies and intellectual property
sharing methods.
China currently dominates the global critical mineral supply chain.
In the Democratic Republic of the Congo (DRC), China controls 72
percent of the country's cobalt and copper mines; just one of these
projects, the Tenge Fungurume Mine, contributes 12 percent of the
world's cobalt production.\1\ Additional knowledge of global mineral
resources may provide U.S. companies with the data needed to commence
mining activities internationally and, more accurately, tap global
reserves.
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\1\ Desmond Egyin, Addressing China's Monopoly over Africa's
Renewable Energy Minerals, Wilson Center (May 2, 2024), https://
www.wilsoncenter.org/blog-post/addressing-chinas-monopoly-over-africas-
renewable-energy-minerals#::text=In%20the%20DRC%2C%20the%20
country,where%20China's%20investments%20have%20underperformed.
In 2019, the United States Geological Survey (USGS) created the
Critical Minerals Mapping Initiative (CMMI) in collaboration with
Geoscience Australia and the Geological Survey of Canada to jointly
conduct critical mineral research in all three countries.\2\ USGS
currently provides global mapping data and reports regarding global
critical mineral availability.\3\ This hearing will provide a forum to
discuss USGS's current mapping initiatives, DOI's ability to provide
divestment strategies to investors, and international intellectual
property sharing.
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\2\ USGS, Critical Mineral Mapping Initiative (August 2023),
https://www.usgs.gov/centers/gggsc/science/critical-minerals-mapping-
initiative-cmmi.
\3\ USGS, Global distribution of selected mines, deposits, and
districts of critical minerals, Interactive Map (last visited Nov. 11,
2024), https://mrdata.usgs.gov/pp1802/.
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Figure 1--Global distribution of selected mines, deposits, and
districts of critical minerals \4\
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\4\ Id.
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.epsH.R. 7807 (Rep. Obernolte), ``Intergovernmental Critical Minerals
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Task Force Act''
H.R. 7807 would establish an ``Intergovernmental Critical Minerals
Task Force'' to facilitate cooperation between Federal, State, and
local governments and industry representatives to decrease the U.S.'s
reliance on adversarial nations for critical minerals.
In 2023, of the 50 minerals on USGS's Critical Mineral List (CML),
the U.S. was 100 percent net import reliant on 12 minerals and more
than 50 percent net import reliant on another 29.\5\ China led global
production for 29 critical minerals for which accurate data was
available, while only 13 were produced primarily in the U.S.\6\ Despite
recent efforts to revitalize the domestic critical mineral supply
chain,\7\ U.S. critical mineral production decreased by 24 percent from
2022 to 2023, partially due to subpar global commodity pricing and
delays in bringing new mines online.\8\
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\5\ USGS, Mineral Commodity Summaries 2024, https://pubs.usgs.gov/
periodicals/mcs2024/mcs2024.pdf.
\6\ Id.
\7\ Id.
\8\ Id.
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H.R. 7807 would direct the President to appoint a Chair of the
Intergovernmental Critical Minerals Task Force, who would appoint
additional task force representatives with expertise in the critical
mineral supply chain, including those from industry and Federal, State,
and local governments. The task force would then provide
recommendations, strategies, and a report to the President and Congress
on ways to secure and foster the U.S.'s mineral supply chain and
decrease reliance on adversarial nations. Contents of this report would
include findings, guidelines, and recommendations created in the Task
Force's performance of the duties mandated under this bill.
Notably, in February 2022, the Department of the Interior announced
that it would launch a ``new interagency working group on reforming
hardrock mining laws, regulations and permitting policies in the United
States,'' \9\ which issued a report in September 2022 with
recommendations for improvements in the sector.\10\ While several of
their suggestions were reasonable, some--like their supposition to
impose a royalty on production and another to shift the current claims
system to a leasing system \11\--would decimate mining on federal land.
If enacted, H.R. 7807 could provide an opportunity to synthesize input
from a broader range of entities to offer solutions that genuinely
cultivate the U.S. critical mineral supply chain.
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\9\ DOI, Press Release, Interior Department Launches Interagency
Working Group on Mining Reform, Feb. 22, 2022, https://www.doi.gov/
pressreleases/interior-department-launches-interagency-working-group-
mining-reform.
\10\ DOI, Final Report, Recommendations to Improve Mining on Public
Lands, Sept. 2023, https://www.doi.gov/sites/default/files/mriwg-
report-final-508.pdf.
\11\ Id.
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The bill also directs the Comptroller General to conduct a study
and issue a report on the regulatory landscape related to improving
domestic supply chains for critical minerals.
H.R. 8952 (Rep. Zinke), ``Crow Revenue Act''
H.R. 8952 would transfer about 4,600 acres of private subsurface
inholdings from the Hope Family Tracts on the Crow Reservation to the
Crow Tribe of Montana. In exchange, the Hope Family Trust would receive
4,530 acres of federal subsurface and 940 acres of federal surface
interest. The bill also provides for a Revenue Sharing Agreement for
the development of the transferred federal tracts, which will be
determined by the Tribe and the Hope Family Trust should the minerals
be developed at a later date.
The Crow Tribe of Montana's reservation covers approximately 1.5
million checkerboarded acres in south-central Montana. The tribe owns
approximately 550,000 acres of the reservation. The tribe's economy is
largely supported by revenues from the mining industry. Crow
Reservation lands are rich in coal, gas, and oil, and the tribe
benefits from leasing these lands for development.\12\
\12\ Veronica E. Velarde Tiller, Tiller's Guide to Indian Country,
3rd ed., 2015, p. 477.
The tribe has mineral interests in the Absaloka Mine, located in
Hardin, Montana. Since the early 1970s, the Crow collected revenue from
Absaloka Mine.\13\ However, changes in coal demand have reduced coal
mining activity at Absaloka. In April 2024, Westmoreland Mining LLC,
which mined Absaloka, announced it had shipped its last railcar of coal
from Absaloka because the Sherburne County Generating Station in
Becker, Minnesota, was shutting down as a generating unit in January
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and no longer needed coal from the mine.\14\
\13\ Toim Lutey, ``Daines pursues Crow coal deal benefiting tribe,
Signal Peak mine,'' Billings Gazette, May 30, 2024, https://
billingsgazette.com/news/state-regional/government-politics/crow-
indians-signal-peak-coal-mine-daines-hope-ranch/article_bd9e0ffa-1e17-
11ef-a141-9f9bb77f0374 .html.
\14\ Id.
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.epsSignal Peak Energy is currently operating the only underground
coal mine in Montana: the Bull Mountain Mine.\15\ Despite reserves that
can last over 50 years,\16\ the mine will soon run out of recoverable
reserves due to federal coal tracts that run in a checkerboard pattern
across the area.\17\ Despite repeated efforts and years of litigation
to lease the federal coal, the Office of Surface Mining, Reclamation,
and Enforcement (OSMRE) has failed to complete an environmental
assessment.\18\ H.R. 8952 would place the indicated tracts into private
hands, allowing the mine and its 300 workers to continue
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operations.\19\
\15\ Signal Peak Energy, Reimagining Underground Coal Mining, (last
visited Nov. 13, 2024), https://www.signalpeakenergy.com/
about#::text=Signal%20Peak%20Energy%2C%20LLC%20is,
and%20cutting%2Dedge%20production%20methods.
\16\ Id.
\17\ Darrell Ehrlick, Signal Peak sues Department of the Interior
for stalling on coal lease, says mine may have to close, Daily Montanan
(Apr. 25, 2024), https://dailymontanan.com/2024/04/25/signal-peak-sues-
blm-for-stalling-on-coal-lease-says-mine-may-have-to-close/.
\18\ Id.
\19\ Id.
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The Crow Tribe of Montana supports H.R. 8952,\20\ which will
replace some of the revenues that the tribe lost with the Absaloka Mine
closure. The revenues will allow the Crow Tribe to provide resources to
tribal members and supplement federal resources the tribe receives
under the United States' trust responsibility toward all federally
recognized tribes.
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\20\ Hearing, Committee on Indian Affairs: ``Legislative Hearing to
receive testimony on S. 4444, S. 4633, S. 4643, S. 4705, S. 4998 and
Business Meeting to consider S. 465, S. 2908, S. 4370'' (Sept. 25,
2024) (testimony of Chairman Frank White Clay), available at https://
www.indian.senate.gov/wp-content/uploads/09-25-2024-White-Clay-
Testimony.pdf
H.R. 10005 (Rep. Hageman), ``Expedited Appeals Review Act'' or the
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``EARA''
The Interior Board of Land Appeals (IBLA) is an appellate review
board within DOI that is responsible for resolving disputes involving
public lands and natural resources under DOI's jurisdiction. The IBLA
has authority delegated by the Secretary of the Interior to issue final
determinations on decisions made by the different bureaus within DOI.
Appeals involving the following actions are decided by the IBLA:
grazing, mining, energy development, royalty disbursement and
management, timber harvesting, wildfire management, land exchanges,
rights of way, and trespass.\21\ The IBLA was created through
regulation and is comprised of administrative judges who report to a
Chief Administrative Judge. The current IBLA Chief Administrative Judge
is Silvia Riechel Idziorek.\22\
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\21\ U.S. Department of the Interior, About the Interior Board of
Land Appeals, https://www.doi.gov/oha/about-interior-board-land-
appeals.
\22\ Id.
The appeal process is governed by the regulations set forth in 43
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C.F.R. Part 4.\23\
\23\ U.S. Department of the Interior, IBLA Annual Report Fiscal
Year 2023, https://www.doi.gov/media/document/ibla-annual-report-
fiscal-year-2023.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
.epsThe Expedited Appeals Review Act (EARA) addresses long-standing
inefficiencies in the IBLA's appeals process. The sheer volume of
cases--combined with a process structured to favor agency deference--
often leads to prolonged delays and rulings favoring the respective
bureaus. The result is that many stakeholders, from energy developers
to land users, find themselves entangled in a years-long appeals
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process that lacks timely resolution and clarity.
Current IBLA procedures have proven slow due to several factors. As
the board oversees a diverse array of complex land, environmental, and
resource-related cases, decisions are frequently subjected to rigorous,
multi-layered review. This lengthy examination process often includes
consultation with subject-matter experts and iterative exchanges
between the board and the bureau issuing the original decision.
While these safeguards are intended to uphold a high standard of
review, they also create bottlenecks that can drag cases out for
extended periods, particularly in situations requiring substantial
technical assessments or those impacted by evolving regulations.
Consequently, the IBLA has over 650 pending appeals dating back to
2014.\24\
\24\ U.S. Department of the Interior, IBLA 2024 Pending Appeals,
https://www.doi.gov/sites/default/files/documents/2024-11/october-2024-
pending-appeals.pdf
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The IBLA's deference to the original bureau decision is
significant. The board upholds agency determinations in a vast majority
of cases, reflecting a deeply ingrained institutional bias toward the
initial judgment. According to the IBLA Annual Report for Fiscal Year
2023,\25\ the IBLA ruled in favor of the respective bureaus roughly 90%
of the time. Moreover, the IBLA's decisions are based upon bureau-
curated administrative records with limited opportunities for
appellants to supplement or challenge the record. Much of the record is
withheld from the appellant for ``deliberative process'' purposes,
thereby shielding the agency's decision-making process from attack.
These process realities can disincentivize stakeholders from pursuing
appeals, as the outcome is often predictably aligned with the agency's
stance.
\25\ U.S. Department of the Interior, IBLA Annual Report Fiscal
Year 2023, https://www.doi.gov/media/document/ibla-annual-report-
fiscal-year-2023.
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The EARA seeks to mitigate these issues by creating an alternative
path for appellants seeking expedited reviews. The bill allows
stakeholders to request an accelerated decision on their appeal and
forces the IBLA to issue a decision within six months of such a
request. If this deadline is not met, the agency decision will
automatically become eligible for de novo judicial review outside of
DOI. This new pathway aims to alleviate the backlog in administrative
court by providing a more efficient and predictable recourse for those
facing extended delays on appeals.
IV. MAJOR PROVISIONS & ANALYSIS
H.R. 7662 (Rep. Houlahan), ``Critical Minerals Security Act of 2024''
Requires a report on critical mineral and rare earth
element resources around the globe.
Establishes a process by which the Secretary of the
Interior aids U.S. citizens looking to divest stock in
international critical mineral investments.
Directs the Secretary of the Interior, in consultation
with the heads of other relevant Federal agencies, to
develop a strategy to collaborate with allied countries to
develop advanced mining, refining, separation, and
processing technologies and intellectual property sharing
methods.
H.R. 7807 (Rep. Obernolte), ``Intergovernmental Critical Minerals Task
Force Act''
Includes findings enumerating the importance of critical
minerals.
Amends Section 5 of the National Materials and Minerals
Policy, Research and Development Act of 1980 to create an
``Intergovernmental Critical Minerals Task Force'' to
assess the reliance of the U.S. on China and other
adversarial countries for critical minerals.
Requires the Task Force to report its findings and brief
relevant Congressional committees.
Directs the Comptroller General to issue a report
examining the Federal and State regulatory landscape for
improving domestic critical mineral supply chains.
H.R. 8952 (Rep. Zinke), ``Crow Revenue Act''
Transfers about 4,600 acres of private subsurface
inholdings from the Hope Family Tracts on the Crow
Reservation to the Crow Tribe of Montana; the Hope Family
Trust would then receive 4,530 acres of federal subsurface
and 940 acres of federal surface interests in Montana.
The bill also provides for a Revenue Sharing Agreement to
develop these tracts.
H.R. 10005 (Rep. Hageman), ``Expedited Appeals Review Act'' or the
``EARA''
Establishes an expedited review process within the
Interior Board of Land Appeals to address delays and agency
deference; mandating decisions within six months or
allowing de novo judicial review.
Reduces the backlog of over 650 pending cases and enhances
fairness and transparency in public land and resource
dispute appeals.
V. COST
The Congressional Budget Office has yet to score any of these
bills.
VI. ADMINISTRATIVE POSITION
Unknown.
VII. EFFECT ON CURRENT LAW (RAMSEYER)
H.R. 7807
https://naturalresources.house.gov/uploadedfiles/bill-to-
law_118hr7807ih.pdf
LEGISLATIVE HEARING ON H.R. 7662, TO REQUIRE REPORTS ON CRITICAL
MINERAL AND RARE EARTH ELEMENT RESOURCES AROUND THE WORLD AND A
STRATEGY FOR THE DEVELOPMENT OF ADVANCED MINING, REFINING, SEPARATION,
AND PROCESSING TECHNOLOGIES, ``CRITICAL MINERALS SECURITY ACT OF
2024''; H.R. 7807, TO CREATE INTERGOVERNMENTAL COORDINATION BETWEEN
STATE, LOCAL, TRIBAL, AND TERRITORIAL JURISDICTIONS, AND THE FEDERAL
GOVERNMENT TO COMBAT UNITED STATES RELIANCE ON THE PEOPLE'S REPUBLIC OF
CHINA AND OTHER COVERED COUNTRIES FOR CRITICAL MINERALS AND RARE EARTH
METALS, AND FOR OTHER PURPOSES, ``INTERGOVERNMENTAL CRITICAL MINERALS
TASK FORCE ACT''; H.R. 8952, TO TAKE CERTAIN MINERAL INTERESTS INTO
TRUST FOR THE BENEFIT OF THE CROW TRIBE OF MONTANA, AND FOR OTHER
PURPOSES, ``CROW REVENUE ACT''; AND H.R. 10005, TO ESTABLISH A PROCESS
TO EXPEDITE THE REVIEW OF APPEALS OF CERTAIN DECISIONS BY THE
DEPARTMENT OF THE INTERIOR, ``EXPEDITED APPEALS REVIEW ACT'', OR
``EARA''
----------
Tuesday, November 19, 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 2:18 p.m. in
Room 1334, Longworth House Office Building, Hon. Pete Stauber
[Chairman of the Subcommittee] presiding.
Present: Representatives Stauber, Wittman, Graves,
Rosendale, Collins; Ocasio-Cortez, Huffman, Kamlager-Dove, and
Magaziner.
Also present: Representatives Hageman, Obernolte, Zinke;
and Houlahan.
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 gentlewoman from Wyoming,
Ms. Hageman; the gentleman from California, Mr. Obernolte; the
gentleman from Montana, Mr. Zinke; and the gentlewoman from
Pennsylvania, Ms. Houlahan, 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 REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MINNESOTA
Mr. Stauber. Today's hearing focuses on pivotal legislation
aimed at strengthening the United States' natural resource
policy. We will examine H.R. 7662, the Critical Minerals
Security Act of 2024; H.R. 7807, the Intergovernmental Critical
Minerals Task Force Act; H.R. 8952, the Crow Revenue Act; and
H.R. 10005, the Expedited Appeals Review Act. These bills share
a common purpose: to secure America's natural resources,
expedite fair processes, and ensure intergovernmental
collaboration.
At this point in the Congress, we are all well aware of the
essential role critical minerals and rare earth elements play
in our economic and national security. And while it is vital we
are able to access our deposits here at home, our first bill,
H.R. 7662, the Critical Minerals Security Act of 2024, speaks
to the global reality of much of this resource supply chain,
one predominantly dictated by the communist country of China.
For example, China currently controls 72 percent of the
Democratic Republic of the Congo's cobalt and copper. Just one
of these Chinese-operated industrial mines provides 12 percent
of the world's total cobalt supply. H.R. 7662 would direct the
Secretary of the Interior, in consultation with the heads of
relevant Federal agencies, to submit a report to Congress on
the critical mineral and rare earth element resources around
the world.
While I appreciate the underlying idea of this bill, I have
some practical questions regarding how the Department of the
Interior would facilitate certain portions of this report, and
if these efforts are already underway.
Our next bill, H.R. 7807, is the Intergovernmental Critical
Minerals Task Force Act, introduced by Representative Obernolte
of California. As critical minerals are truly the essential
building blocks of every sector of our economy, multiple
agencies have authority over various fragments of the critical
minerals supply chain. But this also means that identifying
solutions for onshoring various aspects of the supply chain can
be lost in a tangle of bureaucratic and jurisdictional webs.
H.R. 7807 would establish an Intergovernmental Critical
Minerals Task Force to facilitate cooperation between Federal,
state, and local governments and industry representatives to
decrease the United States' reliance on adversarial nations for
critical minerals. This task force would be responsible for
providing recommendations to Congress and the president on how
to reduce U.S. mineral dependence.
Next, we have H.R. 8952, the Crow Revenue Act, introduced
by Representative Zinke of Montana. H.R. 8952 would transfer
about 4,600 acres of private subsurface inholdings from the
Hope Family Tracts within the Crow Reservation to the Crow
Tribe of Montana. In exchange, the Hope Family Trust would
receive 4,530 acres of Federal subsurface and 940 acres of
Federal surface interest.
The bill also provides for a revenue-sharing agreement for
the development of these tracts, to be determined by the tribe
and the Hope Family Trust, should the minerals be developed at
a later date.
H.R. 8952 would also allow Bull Mountain, a coal mine in
Montana, to remain open. This bill is a win for the Crow Tribe,
a win for the 300 employees at Bull Mountain Mine, and a win
for the Montanans that benefit from the existing revenues and
taxes that the mine generates.
And I am excited to have Chairman White Clay of the Crow
Tribe here today to tell us more about why the tribe so
strongly supports this measure.
Lastly, I want to underscore the urgency of passing H.R.
10005, the Expedited Appeals Review Act, which addresses
critical flaws in the current Interior Board of Land Appeals
process. The Interior Board of Land Appeals, commonly referred
to as the IBLA, functions as an appellate review body within
the Department of the Interior, resolving disputes related to
public lands, mineral resources, energy development, and other
natural resources issues under DOI's jurisdiction.
However, the IBLA's process often denies justice
altogether, as many cases are not decided but simply expire,
effectively resulting in an automatic denial without any
substantive decision. The IBLA has become burdened with over
600 pending appeals, and has shown an institutional bias,
affirming government decisions in nearly 90 percent of the
cases just last year. This results in long delays and a process
that deters justice.
The Expedited Appeals Review Act offers an essential off-
ramp for appellants, setting a 6-month deadline upon request
for decisions, and allowing judicial review without agency
deference if the timeline is missed. This reform promotes
timely, equitable resolutions, a necessity for stakeholders
navigating complex resource management laws.
I am proud to be a co-sponsor of this legislation, and I
want to thank the gentlewoman from Wyoming, Representative
Hageman, for her leadership in introducing this legislation.
Together, these legislative efforts embody a commitment to
efficiency, fairness, and natural resource security. I look
forward to hearing more on the merits of these bills from our
witnesses.
The Ranking Member is going to be a little bit late. When
she comes in, I will allow her to make her opening statement,
as well.
I want to now begin our Member panel who will speak on
their legislation. I will now recognize Ms. Harriet Hageman
from Wyoming's at-large congressional district for her
testimony on her bill.
STATEMENT OF THE HON. HARRIET M. HAGEMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Ms. Hageman. Thank you, Mr. Chairman. It is wonderful to be
here. And thanks to each of the witnesses for being here today.
We are grateful for your input and expertise.
To state the obvious, there have been a lot of bad
decisions made over the past 4 years by the current
Administration, which is why the American people decisively
voted to put President Donald Trump back in the White House on
November 5. Some of the worst decisions made by President Biden
and VP Harris have gone through the Department of the Interior.
They allowed our land management agencies to wreak havoc on our
rural communities by locking up our land and resources and
jeopardizing our livelihoods under the dictates of President
Biden's radical 30x30 agenda.
I just want to begin by expressing my gratitude to the
American people for caring about our legacy industries, for
caring about energy independence, and for caring about the
rights of Americans to produce affordable and reliable energy
for the world.
I am grateful for the opportunity to testify in support of
my bill, the Expediting Appeals Review Act, or EARA, which
provides an off-ramp for entities whose cases are pending
before the Interior Board of Land Appeals, or IBLA.
The IBLA is a regulatory constructed pseudo-judicial
administrative court within the Department of the Interior. It
was created in 1971 and oversees the appeals of agency actions,
including those from the Bureau of Land Management, Bureau of
Ocean Energy Management, Bureau of Safety and Environmental
Enforcement, the Office of Natural Resources Revenue, and the
Office of Surface Mining Reclamation and Enforcement.
As of right now, there are eight administrative judges
appointed to the IBLA, four of which were appointed last year,
with over 600 appeals sitting in front of them and have been
pending for the last 5 years. Most cases are not subject to a
timeline. And for those that are, the IBLA typically fails to
rule, resulting in deemed ``wins'' for the Department. As one
can imagine, in an administrative court created by the Federal
Government, the record is usually heavily redacted, oftentimes
excluding important testimony and records that would be
favorable to the appellant. So, parties filing for an appeal
end up sitting in a queue for years at a time, paying heavy
legal fees for nothing to get done, only for a decision to
finally be made against them before they can finally go to an
actual court to have their case heard.
My bill allows appellants the opportunity to file a notice
requesting an expedited appeal. If such a notice is filed
seeking IBLA review, the case then has 6 months to be resolved.
If the Secretary fails to comply, the case is automatically
decided in the government's favor, but no deference is given to
the decision. In other words, it makes the decision irrelevant,
so there is no incentive for the Secretary to sit on his or her
hands and continue to do nothing.
The appealing party is then given the opportunity to
proceed to district court to have their case heard before a
more neutral arbiter. Importantly, it also allows those who
wish to have their cases remain before the IBLA to do so if
they so choose.
The industries who have borne the brunt of the bad
decisions made over the last 4 years have spoken in strong
support of my bill, including the National Mining Association,
the U.S. Oil and Gas Association, the Independent Petroleum
Association of America, ConocoPhillips, and the American
Petroleum Institute.
Again, I am very grateful for the opportunity to be here
today to testify on this important bill, and I just want to
thank all of those who have supported the crafting of this
legislation, and specifically thank Mr. Travis for being here
today to testify in support, as well.
Thank you, Mr. Chairman, and I yield back.
Mr. Stauber. I thank the gentlewoman for her testimony. I
now recognize Representative Obernolte from California's 23rd
Congressional District for his testimony on his bill.
STATEMENT OF THE HON. JAY OBERNOLTE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Obernolte. Thank you very much, Mr. Chairman, and thank
you for allowing me to waive on today. And can I just say I
miss this Committee? We have to talk to Steering. It is not
fair that they make us, no, it is true. I miss all you guys.
This is a great Committee, and I miss being on here.
It is an honor to me to be here to present H.R. 7807, the
Intergovernmental Critical Minerals Task Force Act. And I know
I don't have to tell anyone on this dais or any members of our
distinguished panel here about the importance of ensuring U.S.
leadership in critical minerals production. We have so many
technological and environmental goals that will only be met if
we are equally meeting the challenge of producing the critical
minerals that we need here in the United States.
But I am sure I also don't have to tell you that we are
woefully behind in that mission. In 2022, the Government
Accountability Office did a study on key obstacles to critical
minerals production in the United States, and they came up with
some pretty alarming data. They identified the limited domestic
infrastructure here in the United States, insufficient
scientific research, environmental concerns here, and also
workforce gaps in the United States.
If you look at the last couple of years, it is particularly
alarming. In last year, 2023, if you look at the 50 minerals on
the USGS's Critical Minerals List, the United States is 100
percent reliant on net imports for 12 of those minerals, 100
percent reliant. And we are more than 50 percent reliant on
another 29 of those minerals. That is absolutely something we
need to correct if we are going to maintain U.S. leadership on
this issue.
Equally alarming to me is the fact that if you look at all
the minerals on the list that we have accurate data for, 29 of
those are minerals where China leads worldwide production. Only
13 of those are minerals that are produced primarily here in
the United States.
And also, I am equally alarmed by the fact that between
2022 and 2023, U.S. production of critical minerals decreased
by 24 percent. This bill is an effort to rectify that
situation.
[Audio malfunction.]
Mr. Obernolte. It would create----
Mr. Stauber. Would the gentleman suspend for a moment?
Ma'am, are you able to help us?
[Pause.]
Mr. Obernolte. Not too bad. It was working well for a
minute there.
So, this bill, H.R. 7807, is an attempt to rectify that
situation. It establishes a presidential task force with
representatives from Federal agencies who, in consultation with
state, local, territorial, and tribal governments, will make
recommendations on how to address the national security risks
associated with America's critical mineral supply chains. So,
hopefully, the report that this task force would issue would be
a guiding principles document that would help future Congresses
in rectifying this situation.
This bill is a companion bill to a Senate bill. So, if we
can get this off the House this year, it has already passed the
Senate, and we will get it on to the President's desk. It has
broad bipartisan support, and I hope to get your support on
that bill.
I thank you very much for your consideration and I yield
back.
Mr. Stauber. Thank you very much for your testimony. You
are welcome back on Natural Resources any time.
I now want to recognize Mr. Zinke from Montana's 1st
Congressional District for his testimony on his bill.
STATEMENT OF THE HON. RYAN K. ZINKE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MONTANA
Mr. Zinke. Thank you, Mr. Chairman and members of this
august Committee. I stand in honor of introducing H.R. 8952,
the Crow Revenue Act.
As a former Secretary, this is an example of big government
overlooking the sovereignty of a nation. Looking at it, if you
were in a county, you wouldn't have this problem. But because
you are a sovereign nation, and we should honor what the
sovereignty of a nation is, then it requires an Act of Congress
to change what would ordinarily be a very common conveyance of
property.
And unfortunately, or fortunately, this conveyance involves
BLM, it involves a private party, and it involves a nation, the
Crow Agency. Because it is trust land, it also involves the
Bureau of Indian Affairs, Department of the Interior, and a
myriad of other departments which probably should have no say
in it anyway.
So, Mr. Chairman, what this bill does is it simply enacts a
conveyance between the three parties on a sovereign nation. The
conveyance is all, the entirety, within the Crow Reservation in
Montana. It is a very short read. We understand there is also,
from the Department of the Interior on their review, there is a
small technical change that has to be made, and we will be
offering that technical amendment during markup.
But I appreciate everyone's attention on this issue,
because this is one of many issues among Indian Country. And I
can tell you, if you are a county commissioner, you would be
surprised of how much paperwork, exhaustive, different
governments, different agencies have a say in what ordinarily
would be an easy problem.
So, I commend the Chairman White Clay for doing what a
leader does. He takes care of his people. This is a great
example of big government, and hopefully this Committee will do
the right thing.
I yield back.
Mr. Stauber. I thank you for your testimony, Mr. Zinke.
I am going to now allow 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, Chair Stauber. I will say it
is very refreshing to be here today to discuss two bipartisan
critical minerals bills. Both H.R. 7662, the Critical Minerals
Security Act sponsored by Representative Houlahan, and H.R.
7807, the Intergovernmental Critical Minerals Task Force Act
sponsored by Representative Obernolte, take common-sense
approaches to secure our critical minerals supply chains.
Everyone in this room agrees that we must proactively
manage the minerals that are crucial for our country's energy
future. We all rely on secure sources of minerals that affect
so much of our everyday lives, from our cell phones to solar
panels. And we all want to make sure that in the process of
procuring those minerals, we are keeping workers, the
environment, and our economy safe.
To improve health, environmental, and labor standards
across the globe, and to diversify our supply chains away from
bad actors, we first need to better understand where critical
minerals are and who controls them. The Critical Minerals
Security Act would fill in critical information gaps by
directing the United States Geological Survey to report on
critical minerals around the world, where they are, and what is
being extracted, and who is mining them.
And while understanding mining is essential, it is not the
whole picture. Recycling already plays a key and growing role
in our supply chains. I understand that the Senate plans to
better incorporate recycling into the Critical Minerals
Security Act, and I fully support that common-sense addition.
H.R. 7807, the Intergovernmental Critical Minerals Task
Force, provides needed strategic coordination for our efforts
to secure mineral supply chains. Despite what we hear from
across the aisle, we cannot mine our way into mineral security,
just like we can't drill our way into energy security. This
bill brings together all the agencies working on critical
minerals, along with state, local, and tribal governments to
coordinate these efforts. We need a whole-of-government
approach to securing our mineral supply chains that looks
beyond just domestic mining to international trade, recycling,
and the efficient use of our minerals. A holistic approach is
better for people, the economy, and the planet, and it makes us
more nimble, adaptable, and secure as a nation.
The next bill, H.R. 8952, the Crow Revenue Act, is billed
by its sponsors as delivering much-needed revenue to the Crow
Tribe. While I strongly support the Crow Tribe's right to
economic self-determination, this bill is a bad deal.
Right now, private landowner owners, the Hope family, own
mineral rights to land within the boundaries of the Crow
Reservation in Montana. In exchange for the Hope family giving
their mineral rights to the Crow Tribe, this bill would give
the Hope family over 4,000 acres of coal-rich Federal land in
the nearby Bull Mountains. The idea is that the Hope family
would sell or lease their new land to the Signal Peak coal
mine, and the Crow Tribe would share in revenue from the mine.
A few problems with this deal.
First problem, this bill should be understood simply as a
way for a coal company with a flagrant history of environmental
and worker safety violations to skirt environmental review by
moving to newly privatized land. Signal Peak Energy has been
trying for years to expand its Bull Mountain coal mine into the
Federal lands at the heart of this land swap, but courts have
repeatedly blocked the expansion due to inadequate
environmental review. If these public lands in the Bull
Mountains become private, Signal Peak, a scandal-plagued
company recently fined $1 million by the Department of Justice
and sentenced to 3 years of probation, could then skip all
Federal environmental reviews and begin mining.
The second problem is that, despite what we will hear
today, the bill doesn't actually require any revenue sharing
with the Crow Tribe. Instead, this bill suggests the Crow Tribe
share their revenues from the former Hope family lands within
the Crow Reservation with the Hope family, even though it is
highly unlikely that coal will ever be developed.
I ask unanimous consent to enter into the record this
letter from the ApsaaLooke Allottees Alliance, an organization
of Crow members living on the reservation, which says in part,
``The Hope family would receive 100 percent of the royalties
from the Bull Mountain tracts, as well as an unspecified share
of the royalties from the 100 percent tribally-owned Hope
family tracts. The tribe would be required to gratuitously give
a share of the coal royalties from those lands.''
There are also no requirements to the bill that the Signal
Peak or the Hope family are under any obligations to enter into
agreement to share the royalties fairly.
Mr. Stauber. Without objection, entered.
[The information follows:]
Apsaalooke Allottees Alliance
Crow Agency, MT
July 11, 2024
Hon. Brian Schatz, Chairman
Hon. Lisa Murkowski, Vice Chair
Senate Indian Affairs Committee
838 Hart Senate Office Building
Washington, DC 20510
Re: Letter of Opposition to Senate Bill 4444
Dear Schatz and Murkowski:
The Apsaalooke Allottees Alliance is an Indigenous, non-profit
advocacy organization dedicated to helping and educating individual
Apsaalooke trust allotment landowners, including all aspects of
allotted land and water rights issues. We reside on the Crow
Reservation in southern Montana. We are no strangers to those who seek
to take advantage of our lands and waters, offering much in return and
delivering nothing. We fear that the ``Crow Revenue Act'' (S. 4444 from
Senator Steve Daines) is more of the same.
According to our Crow Constitution, our chairman, Frank White Clay,
cannot act on his own. He must take this major decision to the Crow
General Council. Anything of this magnitude must to go the Council
where it would normally be subject to a referendum vote.
Some Montana politicians are calling S. 4444 a ``commonsense
solution'' and claim it will bring new revenue to our people. This is
not the case. A close reading of the bill text reveals that the federal
government will give the Hope Family 4,530 acres of subsurface mineral
interests and 940 acres in surface interests next to a currently
operating and profitable coal mine in the Bull Mountains. In exchange,
the Hope Family will convey to the Tribe only its mineral interests
(4,660 acres of mineral rights) as to which there is no nearby coal
mining taking place and there is not likely to be any in the future. In
addition, if the Crow Nation were ever to pursue the development of the
Bighorn County tracts, we would have to enter into a revenue agreement
``if those mineral interests are developed at a later date.'' Senator
Daines' Fact Sheet describing the details of S. 4444 misstates this
provision of the bill. The statement in the Fact Sheet that Sec. 3 of
the bill ``requires the Hope Family and the Crow Tribe to enter into a
revenue sharing agreement[s] for the development of any mineral
interests in the Bull Mountain Tracts,'' is wrong. The relevant
provision in the bill states:
(d) REVENUE SHARING AGREEMENT.--The Tribe shall notify the
Secretary, in writing, that the Tribe and the Hope Family Trust
have agreed on a formula for sharing revenue from development
of the mineral interests described in subsection (a)(2) if
those mineral interests are developed at a later date.
Contrary to a statement in Senator Daines' Fact Sheet, Sec. 3(a)(2)
of the bill refers to the Hope Family Tracts, not the Bull Mountain
Tracts. The Bull Mountain Tracts are likely to be mined for coal, while
the Hope Family Tracts are not. Rather than requiring the Hope Family
Trust to share revenue with the Crow Tribe from the Bull Mountain
Tracts, the bill requires the Tribe to share revenue from the Hope
Family Tracts (in the unlikely event they were ever mined for coal)
with the Hope Family Trust, despite the fact that 100% of the mineral
rights beneath the Hope Family Tracts are to be held in trust by the
United States for the Crow Tribe. Thus, the Hope Family Trust would
receive 100% of the royalties from the Bull Mountain Tracts, as well as
an unspecified share of royalties from the 100% tribally owned Hope
Family Tracts. Sec. 3(d) of the bill, ``Revenue Sharing Agreement,''
creates a burden on the mineral rights the Tribe would receive in favor
of the Hope Family Trust. The Tribe would be required to negotiate with
the Hope Family Trust to gratuitously give it a share of the coal
royalties from the those lands before those lands could be mined. There
is no justification for this, and it can only be characterized as
outrageous.
It is also important to note that the Bull Mountain Tracts are
currently leased by the United States for coal mining, with royalties
payable to the United States. The net result of this legislation would
be to give valuable mineral rights and coal royalties otherwise payable
to the United States to the Hope Family Trust. There is no
justification for gratuitously enriching the Hope Family Trust at the
expense of the United States, in return for the Tribe receiving mineral
rights of little real value.
Our people have been promised more than is delivered time and time
again. The Crow do not need another beautifully wrapped birthday
present, only to open it and find it is empty inside. The Crow People
have great need for revenue, infrastructure, and investments on Tribal
and Allotted land. This bill provides none of these things.
We have worked hard to protect our culture, our land, our water,
and our people. S. 4444 is an injustice reminiscent of so many in our
history and Native history in this country. It would be yet another
grave injustice to allow this bill to pass. Please vote no on this
bill.
Sincerely,
Michael Hill, Alee Bird Hat,
President Vice-President
______
Ms. Ocasio-Cortez. Thank you. Given that Signal Peak is
currently on probation with the Department of Justice, and
multiple former members of its leadership were criminally
convicted of embezzlement, tax evasion, bank fraud, money
laundering, cocaine trafficking, and firearms violations,
forgive me for questioning if they would act in good faith in
this deal.
I look forward to hearing if the bill's sponsors have fixed
this section, as promised in the Senate hearing on the bill.
But I remain skeptical that even a fix would be a good deal for
the public and the Crow Tribe.
Thank you, and I yield back.
Mr. Stauber. I thank the gentlewoman for her testimony. We
will now recognize Representative Houlahan from Pennsylvania's
6th Congressional District for her testimony on her bill.
STATEMENT OF THE HON. CHRISSY HOULAHAN, A REPRESENTATIVE IN
CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA
Ms. Houlahan. Thank you, Chairman Stauber. And thank you,
Ranking Member Ocasio-Cortez, for, first of all, allowing me to
be here and waiving on, and for the opportunity to speak about
this issue, an issue that is vital to our national security, to
our economic resilience, and to our energy independence. And
that issue is securing our critical mineral supply chains.
I am here to advocate for my bill, which is H.R. 7662,
Critical Minerals Security Act, which is being marked up today
in the Senate. The fact that this legislation is moving forward
in both chambers at the very same time should underscore the
bipartisan and bicameral recognition of just how truly pressing
this issue is to the future of our nation.
I know that the members of this Committee are very aware of
the importance of critical minerals, minerals like lithium or
cobalt, and rare earth elements to our 21st century economy and
national security. From my perspective as a member of the House
Armed Services Committee, the Intelligence Committee, and as
co-chair of the bipartisan Climate Solutions Caucus, I also
recognize the profound impact that these minerals have on our
U.S. economy, energy, climate, and again I emphasize, national
security.
Critical minerals are the backbone of countless essential
technologies and industries that power and also protect our
nation, from semiconductors and energy infrastructure to
advance defense systems. As our reliance on these technologies
grow, so does the urgency of securing these supply chains.
Despite the critical role of these minerals and that these
minerals play, and the sensitivity of many of their uses, the
United States remains alarmingly dependent on foreign sources,
with a substantial portion of these resources acquired from
adversarial nations.
In fact, according to the 2024 U.S. Geological Survey's
Mineral Commodity Summary, the United States imports between 50
percent and 100 percent of critical minerals that we rely on,
and that dependency applies to 41 out of the 50 minerals that
are designated as critical by the USGS. To expand on that stark
reality, the United States currently sources as many as 24
different critical minerals from foreign adversaries,
adversaries like China and Russia, to meet our needs. This
dependence poses serious national security risks and leaves the
United States vulnerable to supply chain disruptions.
Specifically, it makes our supply chains susceptible to
geopolitical tensions, to price manipulation, and to export
restrictions as well. It delays our ability to diversify and to
deploy energy technologies, and it undermines our capacity to
compete globally in emerging markets.
My bill, the Critical Minerals Security Act, would first
act as a step in directly addressing these challenges through
practical and forward-looking solutions. The goal of this bill
is to provide the United States, our companies, and our allies
with the data and tools that are needed to be able to
diversify, strengthen, and secure our critical mineral supply
chains.
First, the bill directs the U.S. Secretary of the Interior
to submit a report to Congress every 2 years on critical
minerals and rare earth element resources globally. This report
includes detailed information on the entities that control
these resources.
Second, the legislation requires the Secretaries of the
Interior and state to work together to create a process that
helps American companies shift their mineral sourcing to more
reliable partners and to reduce risks in their supply chain.
Third, the bill directs the Secretary of the Interior to
report to Congress on two key strategies: first, how can the
United States work with allies and our partners to develop
modern technologies for mining, refining, separating, and
processing critical minerals; and secondly, how can we share
those innovations with our allies and our partners?
This Act is a bipartisan and bicameral effort. It brings
together members from both parties and both chambers to advance
a solution that benefits the whole of our nation and
strengthens our leadership abroad. I am proud to have worked
across the aisle to champion this bill. I deeply appreciate the
Senate's efforts to advance it alongside us here in the House.
And in closing, this legislation represents a forward-
looking strategy or solution to one of the most pressing
challenges of our time. It will strengthen our economic
resilience, protect our national security, and position the
United States as a competitive global leader, and a leader that
defends labor and environmental standards in the critical
mineral sector, as well. So, thank you for your time and for
the opportunity to speak on this critical issue. I look forward
to working with this Committee and with my colleagues in the
Senate to make sure we move forward this very critical
legislation.
Thank you, and I yield back.
Dr. Wittman [presiding]. I thank the gentlewoman for her
testimony. We will now 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 your microphone.
We do use timing lights, so please keep abreast of those.
When you begin, the light will turn green. When you have 1
minute remaining, the light will turn yellow. And at the end of
5 minutes, the light will turn red and the gavel will sound,
and I will ask that you please complete your statement.
I will also allow all witnesses to testify before Member
questioning.
Our first witness is Dr. Colin Williams. He is the Program
Coordinator for the U.S. Geological Survey's Mineral Resources
Program, and he is stationed in Moffett Field, California.
Dr. Williams, you are now recognized for 5 minutes.
STATEMENT OF COLIN WILLIAMS, PROGRAM COORDINATOR, MINERAL
RESOURCES PROGRAM, U.S. GEOLOGICAL SURVEY, U.S. DEPARTMENT OF
THE INTERIOR, MOFFETT FIELD, CALIFORNIA
Dr. Williams. Chairman Stauber and Ranking Member Ocasio-
Cortez, thank you for inviting me here today to discuss the
legislation pending before the Subcommittee. My name is Colin
Williams, and I lead the U.S. Geological Survey's Mineral
Resources Program.
As the science arm of the Department of the Interior, the
USGS provides impartial, actionable science on the energy and
mineral resources that underpin America's national and economic
security. We publish official statistics on the domestic and
global supply of mineral commodities, assess U.S. mineral
resources, and provide supply chain analyses that inform policy
decisions and Federal and private-sector investment.
We also co-chair the National Science and Technology
Council's Interagency Critical Minerals Subcommittee. Within
this subcommittee, we have worked to quantify and model mineral
criticality across all sectors of the U.S. economy. We first
implemented this approach to develop the 2018 list of critical
minerals, and have continued to update the list every 3 years,
as mandated by the Energy Act of 2020, including providing
opportunities for interagency consultation and public comment.
We are incorporating new, realistic disruption scenarios
into the updated methodology for the upcoming 2025 list to
better represent supply chain risks and their potential effects
on the U.S. Gross Domestic Product, or GDP. For example, using
elements of the updated methodology, we recently showed that if
China completely suspends gallium and germanium exports, U.S.
GDP could be reduced by $3.4 billion.
Working with partners inside and outside of government, we
have also built analytic capabilities to identify and address
supply chain vulnerabilities and resource issues across the
entire mineral space, from resource extraction to processing,
manufacturing, disposal, and recycling and reprocessing waste.
Through our Earth Mapping Resources Initiative, or Earth
MRI, we are working with states and other partners to collect
modern geoscience data across the United States and develop new
maps and assessments of our critical mineral resources. We are
collaborating with the Defense Advanced Research Projects
Agency, DARPA, and the Advanced Research Projects Agency,
Energy, ARPA-E, to deploy artificial intelligence and machine
learning to accelerate the use of our Earth MRI data to
quantify the nation's mineral resources.
Finally, we are developing the first national inventory to
assess domestic resources and mine and energy waste. We have
expanded our annual mineral commodity summaries with additional
data on import reliance and recycling, and are providing
support to other Federal agencies for decisions on grants,
loans, and tax code changes focused on critical mineral
production and processing.
We have also supported the Administration and Congress on
mineral supply chain issues, such as those resulting from
China's imposition of export controls on antimony, gallium,
germanium, and graphite.
Turning to the legislation, H.R. 7662, this bill requires
the Secretary of the Interior to regularly report on global
critical mineral resources and operations, including foreign
government ownership or influence at the individual mine and
processing facility level. It also requires input on strategies
to develop advanced mining, refining, separation, and
processing technologies.
The USGS supports this bill. Much of the information needed
for this report is compiled in our mineral commodity summaries,
yearbooks, and industry surveys, and could be consolidated and
augmented in a new format for this legislation, although in
some cases the level of detail required will be difficult to
acquire for some mineral markets which are not fully
transparent. We will continue to work to improve our ability to
access this information. We have a second partnership with
DARPA to develop tools to increase critical mineral pricing
transparency and improve the timeliness and accuracy of supply
and demand forecasts.
Finally, the Administration's most recent budget request
added $5.6 million to improve tracking of global minerals
markets and model the economic impact of supply chain
disruptions.
H.R. 7807. This bill would establish an intergovernmental
task force to assess our dependence on the People's Republic of
China and certain other countries for critical minerals. It
would bring together multiple levels of government to make
policy recommendations and facilitate cooperation on responses
to this dependence. We recognize the need to address challenges
to critical mineral supply chains. We can support the task
force with supply demand and trade analyses, and as co-chair of
the NSTC Critical Minerals Subcommittee, this Subcommittee, as
an existing body, could more rapidly stand up collaborative
processes and deliver the recommendations called for in the
bill than a new entity requiring organization from the ground
up.
Thank you for the opportunity to testify, and I will be
happy to answer any questions.
[The prepared statement of Dr. Williams follows:]
Prepared Statement of Dr. Colin Williams, Mineral Resources Program
Coordinator, U.S. Geological Survey, Department of the Interior
on H.R. 7662 and H.R. 7807
Chairman Stauber and Ranking Member Ocasio-Cortez, thank you for
inviting me here today to discuss legislation pending before the
Subcommittee. My name is Colin Williams, and I lead the U.S. Geological
Survey's (USGS) Mineral Resources Program.
Background
The USGS is the science arm of the Department of the Interior and
provides impartial, actionable science and data on the energy and
mineral resources that underpin the Nation's technological innovation,
manufacturing industries, trade, national security, and economy. As
part of that role, we provide the Nation's official statistics on the
domestic and global supply of mineral commodities; map and quantify the
Nation's mineral resources; and provide supply chain analyses that
inform both policy decisions and Federal and private sector investment.
We also co-chair the National Science and Technology Council's (NSTC)
interagency Critical Minerals Subcommittee, which was created in 2010
and codified in the Bipartisan Infrastructure Law.
The USGS Role in Critical Minerals Security
Within the Critical Minerals Subcommittee, the USGS role has been
to work across federal agencies to provide the data and supply chain
analyses to quantify and model criticality, and to maintain a cross-
sectoral focus that could identify commodities with potentially
competing supply needs across multiple industries. This interagency
approach was implemented by the USGS to develop the 2018 list of
critical minerals under Executive Order 13817, A Federal Strategy to
Ensure Secure and Reliable Supplies of Critical Minerals.
The Energy Act of 2020 further directed the USGS to update both the
methodology and the resultant list of critical minerals every three
years, beginning with the 2022 list of critical minerals. The Energy
Act provided a process for the update that includes interagency
consultation and public comment. It defined ``critical minerals'' as
non-fuel minerals essential to the U.S. economy or national security
with a supply chain that is vulnerable to disruption and serving an
essential function in the manufacturing of a product, the absence of
which would have significant consequences for the economic or national
security of the United States.
In accordance with the Energy Act of 2020, the 2025 list will
include an updated methodology to determine mineral criticality. The
methodology will incorporate a data-driven modeling approach to
evaluate potential risks to mineral supply chains. The USGS is
incorporating supply disruption scenarios into the methodology to
better represent possible future risks to supply chains and to estimate
the potential effects of such disruptions to U.S. gross domestic
product (GDP). For example, recent work completed by the USGS using
elements of the updated methodology shows that in the scenario of a
complete suspension of gallium and germanium exports from China, the
world's largest producer, U.S. GDP could be reduced by $3.4 billion.
The list of critical minerals is the foundation of work completed
by the USGS to support resilient mineral supply chains under Executive
Order 14017 (America's Supply Chains) and Executive Order 14123 (White
House Council on Supply Chain Resilience). In addition to identifying
critical minerals, the research results published with the list
identify those critical mineral commodities with the greatest supply
chain vulnerability and highlight weak points in supply chains.
The USGS, working with partners both inside and outside of
government, has built comprehensive supply chain analysis capabilities
to identify domestic and international critical mineral supply chain
vulnerabilities from extraction to processing, manufacturing, disposal,
and recycling or reprocessing waste.
Through our Earth Mapping Resources Initiative (Earth MRI), we are
working with State geological surveys and other partners to collect
modern geoscience data across the Nation and develop new maps and
assessments of critical mineral resources. We are collaborating with
the Defense Advanced Research Projects Agency (DARPA) and the Advanced
Research Projects Agency-Energy (ARPA-E) to deploy artificial
intelligence and machine learning techniques to accelerate the use of
Earth MRI data to map and quantify the Nation's mineral resources. We
are also working with Geoscience Australia and the Geological Survey of
Canada through the Critical Minerals Mapping Initiative to advance the
mineral system science that supports these analyses. We are also
developing the first National Mine Waste Inventory to ensure that our
understanding of the domestic resource base includes both minerals
still in the ground and mineral resources in mine waste and energy
waste.
We have expanded our annual Mineral Commodity Summaries to provide
additional data on import reliance and on recycling, and we are active
in providing technical information and reviews to other Federal
agencies in support of funding decisions on proposed grants, loans, and
tax code changes focused on critical mineral production and processing,
as well as new technologies that could reduce reliance on critical
minerals. We have also supported the Administration and Congress with
extensive analysis on mineral commodity-related issues, such as those
resulting from China's imposition of export controls on antimony,
gallium, germanium, and graphite.
We are also partnering to improve the Nation's ability to forecast
mineral supply chain disruptions. The USGS and the Energy Information
Administration (EIA) have launched a collaboration in which EIA will
develop outlooks for specific energy technologies such as electric
vehicle batteries, which the USGS may then incorporate into its cross-
sectoral supply chain analyses. In turn, the USGS will populate those
outlooks with mineral requirements and market information.
H.R. 7662, Critical Minerals Security Act of 2024
This bill requires the Secretary of the Interior to submit a report
to Congress on all global critical mineral and rare earth element
resources and associated operations one year after enactment and every
two years thereafter. These reports are required to be comprehensive
with respect to ownership and activity at the individual mine and
processing facility level, particularly with respect to the degree to
which these operations are associated with foreign government ownership
and/or influence. The bill also requires input on strategies to develop
advanced mining, refining, separation, and processing technologies. The
USGS supports this bill.
Much of the information needed for this report is already compiled
in the USGS Mineral Commodity Summaries, Mineral Yearbooks, and Mineral
Industry Surveys, although we note that for some critical mineral
commodities the level of detail required for this global resource
report will be difficult to acquire for markets which are not fully
transparent.
We will continue to work to acquire additional resources to improve
our ability to access this information. For example, we are partnering
with the Defense Advanced Research Projects Agency (DARPA) to develop
tools to increase the transparency of critical mineral pricing and
improve the timeliness and accuracy of critical mineral supply and
demand forecasts. Also, the President's Budget Request for Fiscal Year
2025 includes an additional $5.6 million to expand and accelerate our
critical minerals supply chain analysis. This increase will improve our
ability to track changes in the global minerals markets and model the
economic impact of time-critical mineral supply chain disruptions. In
addition, USGS is investing in more fully engaging with the U.S.
federal statistical system that over time may strengthen
confidentiality protections for private sector and public engagement on
minerals data.
These improved supply chain analysis capabilities, along with the
other key components of the USGS Mineral Resources Program and its
partnerships described above, will support a comprehensive, innovative,
and strategic approach to developing advanced mining, refining,
separation, and processing technologies.
H.R. 7807, Intergovernmental Critical Minerals Task Force Act
This bill would establish an intergovernmental critical minerals
task force to assess the reliance of the United States on the People's
Republic of China and other covered countries for critical minerals and
the associated national security risks. It intends to bring together
the Federal Government, Tribes, and State, local, and territorial
governments to make policy recommendations with regard to critical
minerals and to facilitate cooperation, coordination, and mutual
accountability among all levels of government on a holistic response to
U.S. dependence on covered countries for critical minerals.
The USGS recognizes the need to prioritize and address certain
challenges to critical mineral supply chains and appreciates
Congressional engagement on this issue. The USGS can support the effort
of such an intergovernmental task force with our official statistics
and supply chain analyses on the supply, demand, and trade of critical
minerals and through our role as co-chair of the NSTC interagency
Critical Minerals Subcommittee.
Implementation of the bill may be slower than intended by the
bill's authors due to possible procedural requirements under the
Federal Advisory Committee Act (FACA). As one possible alternative,
this subcommittee might wish to consider directing the existing NSTC
Critical Minerals Subcommittee to carry out the work envisioned under
this bill. The NSTC Critical Minerals Subcommittee is a standing body
authorized by statute, and thus may be in the nimblest position to
rapidly stand up collaborative input processes with states, Tribes,
local, and territorial governments, and deliver the recommendations
called for in the bill.
Conclusion
Thank you again for the opportunity to testify. I will be happy to
answer any questions.
______
Questions Submitted for the Record to Dr. Collin Williams, Program
Coordinator, Mineral Resources Program, United States Geological Survey
Dr. Williams did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Westerman
Question 1. Dr. Williams, Section 4 of the Critical Minerals
Security Act of 2024 directs the Secretary of the Interior, in
consultation with the Secretary of State, to establish a process under
which ``a United States person seeking to divest in stock from stock in
mining or mineral processing operations for critical minerals and rare
earth elements in a foreign country may notify the Secretary of the
intention of the person to divest such stock,'' and that the Secretary
may then ``provide assistance to the person to find a purchaser that is
not under the control of the government of a covered nation.'' Are you
aware of any other examples of the Department of the Interior finding
buyers for private citizens looking to divest stock?
______
Dr. Wittman. Thank you, Dr. Williams. We appreciate your
testimony. Our next witness is Ms. Cheryl Lombard. She is the
Senior Program Director for Power, Infrastructure, and Minerals
at ClearPath Action, and she is stationed here in Washington,
DC.
Ms. Lombard, you are now recognized for 5 minutes.
STATEMENT OF CHERYL LOMBARD, SENIOR PROGRAM DIRECTOR, POWER,
INFRASTRUCTURE, AND MINERALS, CLEARPATH ACTION, WASHINGTON, DC
Ms. Lombard. Thank you. Good afternoon, Chairman Stauber,
Congressman Wittman, Ranking Member Ocasio-Cortez, Congressman
Huffman, and members of the Subcommittee. Thank you for the
opportunity to testify today.
My name is Cheryl Lombard, and I am the Senior Program
Director for Power, Infrastructure, and Minerals at ClearPath
Action. We are a 501(c)(4) organization that advocates for
clean energy, innovation, modernized permitting, and regulatory
reform.
The United States will need to double our power capacity
over the coming decades to meet the expected energy demand.
This will require substantial infrastructure, energy
generation, batteries, transmission systems, and more, all of
which rely on critical minerals and materials. The
International Energy Agency predicts that the demand for
energy-related minerals like lithium, cobalt, graphite, and
nickel could grow 20 to 40 times by the year 2040, and today we
produce very little of these minerals domestically.
I will focus my testimony on four ways this Committee can
work to meet that demand, accelerate American innovation, and
reduce global emissions: specifically, (1) the bipartisan
Intergovernmental Critical Minerals Task Force Act; (2) the
challenges with the status quo of relying on foreign minerals
and materials; (3) recommendations to streamline permitting for
domestic resources; and finally, (4) strengthening U.S. and
allied supply chains for critical minerals and materials.
ClearPath Action supports H.R. 7807, the Intergovernmental
Critical Minerals Task Force Act. This task force created by
this bill would coordinate efforts across Federal, state,
local, tribal, and territorial governments to address
vulnerabilities in the U.S. critical supply chains. As Ranking
Member Ocasio-Cortez described it, a whole-of-government
approach. This Committee has passed multiple mining-related
bills, including H.R. 1, all of which point in the same
direction: align U.S. domestic and international interests.
This bill would be another important piece of that puzzle.
It is worth noting that the Biden administration has
promoted numerous actions that have created challenges for
domestic mining projects, prolonging lengthy permitting
processes and limiting access to domestic resources while
favoring those sourced from overseas. From Wyoming and
Minnesota to Alaska and Arizona, the Biden administration's
actions have made it harder to produce critical minerals and
materials, such as copper and zinc, which are essential for
electric grid components; nickel and lithium, which are
important for battery storage, electric vehicles, and
geothermal energy.
In contrast, this bill would create a unified strategic
approach. It also includes recycling and reuse, and how it
plays an important role in securing these supplies by creating
secondary sources. Recycling alone cannot meet demand, but it
supplements mining and will help to reduce environmental
impacts.
Today, according to the USGS Mineral Commodity Summaries
Report of 2024, the United States is fully import-reliant for
15 of the 50 critical minerals, which has already been said
today by the Members. Meanwhile, China is the leading producer
of most of these. China also controls global refining for 90
percent of the rare earth element supply, and 60 to 70 percent
of the global lithium and cobalt supply.
Meanwhile, the United States struggles to permit domestic
projects. Data shows regulatory approvals for mines has fallen
to the lowest level in decades. We must do better to keep up
with demand growth. Federal permitting must shift to expedite
approvals for projects to deliver net benefits and meet legal
standards for environmental laws, including clean air and clean
water.
We need all regulatory certainty from one presidential
administration to the next. This is especially true for
critical minerals and materials projects due to their long
development timelines. Legal decisions such as the Rosemont
decision have further complicated efforts in recent years. The
House passed the Mining Regulatory Clarity Act of 2024 by a
bipartisan vote to fix this issue once and for all. Now we can
do much more with this bill.
Achieving mineral and material security for the United
States requires both time and strategic international
collaboration. The task force created in this bill will
strengthen international partnerships, domestic capabilities,
and supply chains while protecting U.S. national security and
economic development. This legislation also creates jobs and
drives innovation in critical minerals by streamlining the
regulatory processes and enhancing coordination across
government and industry.
I want to thank you once again for this opportunity to
testify, and we look forward to working with this Committee and
others to further American critical minerals and materials
independence. Thank you.
[The prepared statement of Ms. Lombard follows:]
Prepared Statement of Cheryl Lombard, Senior Program Director--Power,
Infrastructure, and Minerals, ClearPath Action
on H.R. 7807
Good afternoon, Chairman Stauber, Ranking Member Ocasio-Cortez and
members of the Subcommittee. My name is Cheryl Lombard, and I am the
Senior Program Director for Power, Infrastructure and Minerals of
ClearPath Action, a 501(c)(4) organization that advocates for more
clean energy innovation, modernized permitting and regulatory reform,
America's global competitiveness for manufacturing, and unlocking more
American resources. To further that mission, we develop cutting-edge
policy solutions on clean energy and clean manufacturing innovation.
ClearPath Action collaborates with public and private sector
stakeholders to enable private-sector deployment of critical
technologies, and receives no industry funding.
Thank you for the opportunity to testify today. America's energy
demands are rapidly increasing. Some estimates show the U.S. will need
to double the capacity of our bulk power system over the coming decades
to meet expected energy demand. Expanding this capacity requires
substantial infrastructure--batteries, transmission systems and more--
all of which rely on critical minerals. Consequently, the International
Energy Agency (IEA) predicts that demand for energy--related minerals
like lithium, cobalt, graphite and nickel could grow 20 to 40 times by
2040.\1\
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\1\ https://www.iea.org/reports/the-role-of-critical-minerals-in-
clean-energy-transitions/executive-summary
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As global demand for critical minerals and materials increases, the
U.S. will either responsibly develop these resources here at home or
continue to rely on foreign sources that, in many cases, pose human
rights challenges, present national security risks, and result in
increased environmental impacts.
My testimony will focus on four key themes for how Congress and
this Committee can work to meet that demand with American supply and
capitalize on these efforts to accelerate American innovation and
domestic resources to reduce global emissions. Specifically, I will
focus on:
The Intergovernmental Critical Minerals Task Force Act
which includes coordination across federal, state and local
agencies as well as minerals recycling and reuse;
The challenges with maintaining the status quo of U.S.
reliance on foreign critical minerals and associated
national security risks;
Strategic recommendations to streamline permitting for
domestic resources; and
Strengthening U.S. and allied supply chains for critical
minerals to reduce reliance on foreign adversaries.
H.R. 7807, the Intergovernmental Critical Minerals Task Force Act,
is a step toward achieving these goals. ClearPath Action supports this
legislation because it creates a coordinated strategy to secure
critical mineral supplies domestically, reducing reliance on foreign
sources and enhancing U.S. economic and national security.
H.R. 7807 is the latest example of how this Committee has
highlighted the importance of leveraging domestic mineral resources
throughout the 118th Congress. Earlier this Congress, this Committee
prioritized permitting reform by advancing the H.R. 1, The Lower Energy
Costs Act. Parts of this bill were later codified by securing key
provisions in the debt ceiling agreement enacted through the Fiscal
Responsibility Act. This Committee has passed numerous mining--related
bills, including H.R. 2925, the Mining Regulatory Clarity Act of 2024,
which would remedy the negative impacts of the Rosemont decision. All
of these actions point in the same direction: to align U.S. domestic
and international interests to meet our critical mineral needs.
Today, America is dependent on foreign supply chains. According to
the 2024 U.S. Geological Survey's Mineral Commodities Summary, the U.S.
was 100 percent net import-reliant for 15 of the 50 individually listed
critical minerals and was more than 50 percent net import-reliant for
an additional 26 critical mineral commodities. Meanwhile, China was the
leading producing nation for 28 of those same 50 critical minerals.\2\
The Aspen Institute's report on ``A Critical Minerals Policy for the
United States'' further underscored that rising demand for minerals
will place significant stress on global supply chains and undermine the
ability of the U.S. to deploy more clean energy.\3\ Equally concerning,
China exerts dominant control over the refining process for a large
majority of rare earth elements and has demonstrated a willingness to
leverage its influence to pursue political objectives.\4\
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\2\ https://pubs.usgs.gov/publication/mcs2024
\3\ https://www.aspeninstitute.org/wp-content/uploads/2023/06/
Critical-Minerals-Report.pdf
\4\ https://chinapower.csis.org/china-rare-earths/
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Despite these dynamics, the U.S. struggles to permit projects that
unlock these critical minerals and materials. Recent data from Goldman
Sachs shows regulatory approvals for mines have fallen to the lowest
level in a decade, coinciding with substantial demand growth for
sectors that require them to obtain inputs, like transportation,
technology, military equipment and machinery, and energy.\5\
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\5\ https://www.goldmansachs.com/insights/goldman-sachs-research/
copper-is-the-new-oil
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Recognizing the challenges posed by limited domestic production
capacity, the Committee has shown its dedication to enhancing America's
ability to utilize domestic resources to be globally competitive. As
policymakers work to fortify U.S. supply chains, reduce reliance on
foreign critical minerals, and promote economic growth, Congress should
consider solutions that restore predictability and encourage private
sector investment across the critical minerals supply chain.
The Intergovernmental Critical Minerals Task Force
The Biden Administration has proposed numerous actions that have
created new challenges for domestic mining projects, prolonging already
lengthy permitting processes, and limiting access to domestic resources
while favoring those sourced from overseas. Actions such as the
proposed withdrawal of 10 million acres in Wyoming and the cancellation
of mining leases in Minnesota, home to uranium, helium, titanium,
nickel, copper, zinc, rare earth elements and other precious metals \6\
increase U.S. reliance on foreign sources of critical minerals, often
from countries with lower environmental and labor standards. Additional
measures, including the suspension of the Ambler Road project in Alaska
\7\ and the designation of mineral-rich areas in Arizona \8\ as
protected lands, may further impact domestic supply of copper, lead,
silver, gold, uranium, and molybdenum, and zinc.
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\6\ https://www.wsgs.wyo.gov/products/wsgs-2022-
critical%20minerals-summary.pdf
\7\ https://www.ambleraccess.org/About/Benefits
\8\ https://www.usgs.gov/centers/national-minerals-information-
center/mineral-industry-arizona
#::text=Arizona%20leads%20in%20copper%20production,gypsum%2C%20lime%2C%
20and% 20salt.
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In accordance with a Biden Administration Executive Order, the
Department of Interior's Interagency Working Group (IWG) released a
report in September 2023 with 65 recommendations to improve mining on
public lands, including transitioning to a leasing system and imposing
royalties on extracted minerals.\9\ However, industry leaders such as
the National Mining Association (NMA), criticized these recommendations
as unreasonable and unworkable, arguing they could hinder domestic
mining projects and investment.\10\
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\9\ https://www.doi.gov/sites/default/files/mriwg-report-final-
508.pdf
\10\ IWG Recommendations on Mining Unworkable and Unreasonable
---------------------------------------------------------------------------
In contrast, the Intergovernmental Critical Minerals Task Force, as
proposed in H.R. 7807, would create a unified, strategic approach to
securing the U.S. supply of critical minerals. The Task Force would be
a crucial counterbalance to the Biden Administration's proposals,
leveraging bilateral expertise to strengthen U.S. capabilities,
securing a stable domestic supply chain, reducing dependency on
adversaries, and improving American energy and manufacturing capacity.
These minerals play a foundational role in American manufacturing,
technologies to boost grid reliability, military equipment, energy
infrastructure, and other technologies that underpin the U.S. economy
and defense systems. The Task Force would coordinate efforts across
federal, state, local, Tribal, and territorial governments to address
vulnerabilities in the U.S. critical mineral supply chains. Leveraging
expertise and resources at every level of government, the Task Force
would strengthen domestic mining, processing, refinement, and recycling
capabilities, creating new pathways for high-quality American jobs and
reducing reliance on foreign adversaries like China.
The Task Force would serve as a central hub for data sharing and
supply chain transparency, fostering a collaborative framework to
identify and mitigate security risks proactively. This transparency
improves decision-making across agencies, equipping the U.S. to assess
current supply chain risks and respond swiftly to potential supply
disruptions.
The Task Force's mandate extends beyond immediate security concerns
to establish a foundation for long-term growth within the critical
minerals sector. Identifying responsible domestic opportunities for
mining, processing, and recycling will produce a self-sustaining supply
chain that balances economic and environmental priorities. The Task
Force's establishment reflects a strategic commitment to America's
economic future, national security, and environmental stewardship,
protecting U.S. technological leadership and industrial capacity for
decades to come.
U.S. Reliance on Foreign Critical Minerals and Associated National
Security Risks
The United States' reliance on foreign sources for critical
minerals poses significant national security risks as demand for these
minerals skyrockets. With the global shift toward clean energy
technologies, critical minerals like lithium, cobalt, graphite, and
nickel have become essential. ClearPath Action maintains that an ``all
of the above'' approach--encompassing domestic exploration, extraction,
processing, and recycling--is essential to bolster U.S. supply chains.
Without a comprehensive approach, the U.S. will remain dependent on
adversarial nations, like China with its stronghold on mineral
processing and supply chains, leaving the U.S. vulnerable to political
and economic coercion.
Exploration and accreditation of critical mineral resources within
U.S. borders form the foundation of a secure supply chain. Investment
in modern exploration techniques and streamlining accreditation
processes can identify viable deposits faster and with greater
efficiency, minimizing permitting delays and helping meet projected
demand. However, the U.S. must also prioritize extraction capabilities
to convert these identified resources into viable supplies. Increasing
domestic mining capacity is crucial, as foreign adversaries currently
control much of the supply chain, particularly in processing and
refining.\11\
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\11\ https://kleinmanenergy.upenn.edu/research/publications/the-
not-so-rare-earth-elements-a-question-of-supply-and-demand/
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Processing remains a major bottleneck, as China controls global
refining for 90% of global rare earth element supply and 60-70% of
global lithium and cobalt supply.\12\ Establishing U.S.-based
processing facilities will reduce the need to send raw materials
abroad, allowing the U.S. to add value domestically and create a more
resilient supply chain.
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\12\ https://www.iea.org/reports/energy-technology-perspectives-
2023/clean-energy-supply-chains-vulnerabilities
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Recycling must also play a critical role in securing critical
mineral supplies by creating secondary sources. While recycling alone
cannot meet projected demand, it is a supplement to primary extraction
and helps to reduce environmental impacts. Metals such as aluminum,
nickel, and copper already have recycling rates exceeding 40%.\13\ As
materials cycle through the system and recycling technology advances,
secondary sources can partially close the supply gap, easing dependence
on foreign adversaries and creating a more efficient supply chain.
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\13\ https://www.energymonitor.ai/tech/why-recycling-is-no-golden-
ticket-to-endless-critical-minerals/
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Strategic Recommendations to Streamline Permitting for Domestic
Resources
Last September, the Biden Administration proposed designating the
critical minerals supply chain as a covered sector under FAST-41, which
provides expedited coordination and oversight procedures for
infrastructure projects being reviewed by federal agencies to increase
accountability through consultation and reporting on projects. This
exemption could artificially restrict the types of projects eligible to
apply to FAST-41.\14\ To date, the South32 Hermosa project is the only
recipient of FAST-41 status. While this action by the Federal
Permitting Improvement Steering Council (FPISC) aims to bring much-
needed efficiency and predictability to the lengthy timelines for
critical mineral extraction, processing, and recycling, it is clear
that it alone is an insufficient process to remedy the scale and scope
of the challenges. H.R. 7807 is well-positioned to build upon these
efforts.
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\14\ https://www.permits.performance.gov/fpisc-content/permitting-
council-moves-designate-critical-minerals-supply-chain-fast-41-sector
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As demand for these minerals surges, the Intergovernmental Critical
Minerals Task Force could play a crucial role implementing all of the
FAST-41 improvements. With its intergovernmental focus, the Task Force
can bridge coordination gaps across federal, state, local, and Tribal
jurisdictions. It would provide a platform for aligning priorities,
sharing information, and streamlining communication which are key
elements in permitting bottleneck reduction. These coordinated efforts
would enhance the FAST-41 benefits that may not fully reach local
jurisdictions or align with state goals, creating inconsistencies that
could diminish the initiative's impact.
Regulatory delays, sometimes stretching nearly a decade, drive up
project costs and stall high-impact initiatives that offer substantial
benefits to the U.S., including reduced energy costs, greater energy
independence, expanded economic opportunity, and lower global
emissions. The current permitting system overwhelmingly favors those
who delay or block projects rather than those working to build.
Federal permitting must shift to expedite approvals for projects
that deliver net benefits and meet legal standards for clean air and
water. Developers also need stable regulatory certainty from one
administration to the next. This is especially for critical mineral
projects. Legal decisions, such as the 9th Circuit's ruling in Center
for Biological Diversity v. U.S. Fish and Wildlife Service, also known
as the ``Rosemont decision,'' have further complicated domestic mining
efforts. This shift from a long-running administrative policy has
created a new barrier that has stifled domestic production and slowed
federal investment in reshoring supply chains. House Republicans
highlighted the urgency of reform in H.R. 1 which has gained bipartisan
support in the Senate as well. Addressing this regulatory flux is
essential to giving entrepreneurs the confidence to proceed responsibly
with domestic operations.
Strengthening U.S. and Allied Supply Chains for Critical Minerals to
Reduce Reliance on Foreign Adversaries
Achieving mineral security requires both time and strategic
international collaboration. The Task Force will advance efforts with
key partners and allies. Diversifying supply sources strengthens
domestic capabilities and builds resilient supply chains that protect
U.S. national security and economic stability.
While the Biden Administration has convened a ``Minerals Security
Partnership,'' and other regional dialogs with key nations in an
attempt to address such challenges, these informal diplomatic
arrangements lack direction, durability, and transparency without
Congressional guidance and accountability. A key aim of H.R. 7807 is to
do exactly that: coordinate across government to ensure negotiations
translate into actions that empower the private sector to innovate and
lead in this sector with ethical, market-based solutions.
The U.S. and its partners must expand mining, processing, and
recycling capabilities, building job growth and addressing labor
shortages across borders. As over half of the U.S. mining workforce
approaches retirement, creating a shortfall of 221,000 skilled workers,
other countries like Canada and Australia face similar challenges, with
severe talent shortages expected in their mining sectors.\15\ These
international shortages highlight the need for a coordinated effort to
secure skilled talent for the mineral supply chain. The
Intergovernmental Task Force can advance solutions by collaborating
with these allied nations to establish international training and
exchange programs. These initiatives would foster talent development,
share best practices, and strengthen the entire critical mineral supply
chain, positioning allies to compete globally while securing resources
domestically.
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\15\ https://www.csis.org/analysis/united-states-needs-more-mining-
engineers-solve-its-critical-mineral-challenges
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Expanding bilateral and multilateral frameworks in a coordinated
manner with Congressional engagement should be a pillar to supporting
the diversification of critical mineral supply chains. Trade agreements
with countries that meet U.S. standards can reinforce supply security.
However, these agreements must complement, not replace, robust domestic
production efforts.
Conclusion
The Intergovernmental Critical Minerals Task Force Act is essential
for securing a stable domestic supply chain, reducing reliance on
foreign adversaries, and supporting U.S. economic and energy security.
This legislation can create jobs and drive innovation in critical
minerals by streamlining regulatory processes and enhancing
coordination across government and industry. Thank you again for the
opportunity to testify today. ClearPath Action looks forward to working
with this Committee to further all American critical mineral and
material independence. We urge Congress to advance this initiative for
a more resilient and independent U.S. supply chain.
______
Questions Submitted for the Record to Ms. Cheryl Lombard, Senior
Program Director--Power, Infrastructure, and Minerals, ClearPath Action
Ms. Lombard did not submit responses to the Committee by the
appropriate deadline for inclusion in the printed record.
Questions Submitted by Representative Westerman
Question 1. Ms. Lombard, last Thursday, the House passed H.R. 8446,
the Critical Minerals Consistency Act, with overwhelming bipartisan
support. H.R. 8446 adds the Department of Energy's definition of
``critical material'' to the Department of the Interior's definition of
``critical mineral.'' Ms. Lombard, how do you think including
``critical materials'' to H.R. 7807 as well would aid this newly
established Task Force in its efforts to offer solutions that diminish
American dependence on adversarial nations for our mineral security?
Question 2. Ms. Lombard, Section 3 of H.R. 7807 requires the task
force Chair to appoint representatives ``with expertise in critical
mineral supply chains'' from at least 20 different Federal agencies.
Why is it so important for the Task Force to collaborate across so many
different jurisdictions?
______
Dr. Wittman. Thank you so much, Ms. Lombard. Our next
witness is Mr. Jonathon Travis. He is the Principal for
Severance Tax at Ryan, LLC, and he is based in Houston, Texas.
Mr. Travis, you are now recognized for 5 minutes.
STATEMENT OF JONATHON TRAVIS, PRINCIPAL, SEVERANCE TAX, RYAN,
LLC, HOUSTON, TEXAS
Mr. Travis. Chairman Stauber, Ranking Member Ocasio-Cortez,
and members of the Subcommittee, I appreciate the opportunity
to testify in support of Congresswoman Hageman's bill today,
the Expedited Appeals Review Act.
This is an important bill. It does right by all parties
involved in the use of Federal lands and waters, and it does
that by upholding one of our country's core legal beliefs, that
justice delayed is justice denied.
My name is Jonathon Travis, and I am a principal in the
severance tax and royalty practice at Ryan, LLC. Ryan's goal is
to ensure that taxpayers pay timely, accurately, and exactly
what is owed. Not a penny more and not a penny less. At Ryan,
one of our roles is assisting oil and gas producers with
calculating the amount of Federal royalties owed.
Given the complex operations and lengthy regulations,
disputes can sometimes arise which forces royalty payers into
the appeals process at the Interior Board of Land Appeals, also
known as the IBLA for short. Unfortunately, this process is
lengthy, costly, and poorly defined. Two key statistics help
highlight that these comments aren't hyperbole. There are
currently over 600 appeals before the IBLA, many of which have
been pending for more than 5 years. In 2023, the IBLA decided
just 36 cases on the merits, 2 of which were in favor of the
appealing party, with 34 in favor of the government. That is
simply not justice.
In the appeals we have been involved in, we have identified
two main issues.
First, the department has often produced heavily curated
administrative records, many of which have been ruled by the
IBLA to have been compiled by the department in bad faith.
Despite these findings of bad faith, the IBLA has still been
unable or unwilling to rule on the merits of the cases, leaving
the appellant stuck in the IBLA waiting process.
The administrative record is supposed to include all of the
documents that were compiled and presented to the deciding
agency official during the consideration of the matter being
appealed. Unfortunately, this is the exact opposite of what we
have seen happen. Instead, we have seen the Office of Natural
Resources Revenue, or ONRR as they prefer to be called,
officials knowingly making decisions before gathering the
necessary information. We have also seen ONRR agency personnel
purposefully deleting and excluding documents that could inform
the director's decision.
Moreover, once the appeals reach the IBLA, ONRR frequently
took over a year to produce the administrative record, the very
same administrative record that should have already existed
before the director issued their decision. The flaw in this
process is simple: How could the director have considered an
administrative record in making their decision, when that
administrative record had not even been compiled yet?
Unfortunately, IBLA's process promotes this behavior by
discouraging appellants from supplementing the administrative
record and also making discovery incredibly rare. Consequently,
the agencies alone have control over the documents that will
inform an IBLA decision. And as we have seen, this allows for
the exclusion of documents that challenge or refute the
agency's desired outcome.
The second issue is the IBLA's inability to rule on the
merits of a case. On most matters, the IBLA has an indefinite
amount of time to sit on a case before making a ruling. In
fact, there are currently pending cases before the IBLA that
date back to 2014. Unique to royalty appeals and ONRR is a 33-
month period in which a decision must be issued by the IBLA.
Once that almost 3-year period expires, the department or
agency automatically wins if the issue is worth more than
$10,000, which, as you can imagine, they pretty much all are.
The appellant can only then go onward to district court, and
the administrative record is now set, despite the IBLA often
having not ruled on the matter at all.
Further, the agency is also given deference, again, despite
the IBLA having not made a ruling. And, unfortunately, this
automatic loss in the IBLA process due to the 33-month period
expiring is the most common result for royalty cases, even ones
that have been fully briefed. This leaves appellants in
judicial purgatory because there aren't any mechanisms to
encourage or receive timely resolution.
The Expedited Appeals Review Act provides a crucial path
forward, allowing these appeals to finally advance. First, this
bill creates a tighter timeline for the IBLA to consider cases.
Second, the bill makes sure that a final decision will be
issued by an impartial arbiter, whether it be the IBLA in
normal course, but on a tighter deadline, or by a district
court and now allowing for fair consideration of all arguments
and the opportunity to have a complete record.
And while my focus has been on Federal royalty appeals,
this bill will benefit virtually all users of Federal lands and
waters, especially folks with grazing rights, renewable right-
of-ways, or even recreational use, all needing access to a more
timely decision. I don't think the current process meets
anyone's reasonable view of justice, because everyone should
have the right to a fair and timely decision through the legal
process. For those reasons, I commend the introduction of this
legislation and urge its passage.
Thank you very much for the opportunity to testify, and I
would be happy to answer any questions.
[The prepared statement of Mr. Travis follows:]
Prepared Statement of Jonathon Travis, Principal,
Severance Tax/Royalty Ryan, LLC
on H.R. 10005
Introduction:
Chairman Stauber, Ranking Member Ocasio-Cortez, and members of the
subcommittee:
Thank you for the opportunity to testify in support of H.R. 10005,
the Expedited Appeals Review Act (Act). The Act is a positive piece of
legislation that benefits all stakeholders utilizing federal lands and
waters. I commend Rep. Hageman for introducing this legislation and I
thank the Committee for taking up this important matter this session. I
sincerely hope that it will move forward through the legislative
process.
My name is Jonathon Travis, and I am a principal for the severance
tax and royalty practice at Ryan, LLC. Ryan is the world's largest firm
dedicated to providing tax consulting services. With headquarters in
Dallas, Texas, we perform tax services in every state and in nearly 70
countries. From the calculation of property taxes at the local level to
assisting taxpayers in obtaining historical tax credits, Ryan provides
a wide array of tax services and interacts with various taxing
authorities daily. We help our clients get to fair answers faster,
which benefits both the taxpayer and the taxing authority. And perhaps
more specifically, our job is to ensure our clients pay only the tax
they owe--not a penny more, and not a penny less.
Our severance tax and royalty practice, based in Houston, Texas,
focuses exclusively on calculating taxes or royalties owed to the
government for the production of oil and gas. From the Bakken to the
deepest waters of the Gulf, Ryan's wide array of oil and gas clients
account for the majority of production throughout the United States.
This provides us with a unique perspective on identifying best
practices for the collection of taxes and royalties and firsthand
experience with the issues the Act aims to govern.
It is with this perspective that I approach my testimony on the
Expedited Appeals Review Act. This important piece of legislation will
allow for efficiency in the processing of appeals pending before the
Department of the Interior by giving appellants a mechanism to ensure
their issues are heard on the merits, with a full record and through a
truly independent appeals process--the absence of this mechanism today
hampers the efficient collection of taxes and royalties.
I'll quickly explain the current process and proposed changes so
you can see why this legislation is so critical to appellants.
Overview of the Interior Board of Land Appeals:
The Interior Board of Land Appeals (IBLA) is an administrative
court within the Department of the Interior's Office of Hearing and
Appeals. The IBLA oversees appeals of agency actions, including those
from the Bureau of Land Management, Bureau of Ocean Energy Management,
Bureau of Safety and Environmental Enforcement, Office of Natural
Resources Revenue, and Office of Surface Mining Reclamation and
Enforcement.\1\ The mission of the IBLA is ``to provide an impartial
forum within the Department of the Interior for the fair resolution of
disputes involving public lands and natural resources under the
Department's jurisdiction.'' \2\ The IBLA is not statutorily defined;
rather, the entire court is regulatorily constructed.
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\1\ 43 C.F.R. Sec. 4.1(b)(2).
\2\ U.S. Dep't of the Interior, Annual Report of the Interior Board
of Land Appeals Fiscal Year 2023, at 3, available at: https://
www.doi.gov/media/document/ibla-annual-report-fy23.
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Organizationally, the IBLA is headed by a chief judge, with a
varying number of supporting administrative judges. Currently, there
are eight judges in total, three of whom were appointed in the last
seven months.\3\ There is no set minimum or maximum to the number of
judges that may serve on the IBLA, nor are the lengths of service
defined.\4\
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\3\ See About the Interior Board of Land Appeals, U.S. Dep't of the
Interior, Nov. 7, 2024, https://www.doi.gov/oha/about-interior-board-
land-appeals.
\4\ See 43 C.F.R. Sec. 4.2
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Annually, the IBLA receives an average of 290 appeals.\5\ The
majority of these appeals pertain to Bureau of Land Management matters
(64% in 2023). On average, the IBLA resolves 270 appeals per year.
However, this apparent level of processing is misleading. Per the IBLA,
80% of the cases resolved are resolved on jurisdictional or procedural
grounds (such as untimely appeals filed or a failure to state the
grounds of the appeal). For those cases decided on the actual merits,
of which there were only 34 in FY 2023, only 2 were decided in favor of
the appellant. That is a 94% loss rate.
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\5\ U.S. Dep't of the Interior, Annual Report of the Interior Board
of Land Appeals Fiscal Year 2023, at 6, available at: https://
www.doi.gov/media/document/ibla-annual-report-fy23.
---------------------------------------------------------------------------
As of the end of October, there were over 600 pending appeals
before the IBLA--with the oldest dating back to 2014. The statuses of
these cases vary. While some are suspended, meaning the parties are
attempting to settle the case, many of the oldest cases are ``awaiting
action.'' These 229 cases are the most concerning, as it means the
parties have completed briefing on the issues, but the IBLA has yet to
assign a staff attorney or administrative judge to the case. The
``awaiting action'' backlog dates to 2018.
These statistics demonstrate that the number of unresolved cases
will continue to grow annually.
Practice Problems Before the Interior Board of Land Appeals:
In addition to the ever-growing backlog, further issues stem from
the actual practice before the IBLA, most notably with the presentation
of the administrative record.
The administrative record is comprised of the documents that were
``compiled during the officer's consideration of the matter leading to
the decision being appealed.'' \6\ It is the fundamental justification
for how the agency arrived at its determination. The IBLA views this
record as the factual basis for which they will decide the case, and
while ``parties may supplement the record to correct an inadvertent
omission,'' such supplementation is not permitted when ``the agency did
not consider [the supplemented information] when it made the decision
on appeal.'' \7\ That said, the IBLA may ``accept newly submitted
information and, to the extent it is deemed reliable and relevant,''
``consider that information during the [IBLA's] review of the appeal.''
\8\
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\6\ 43 C.F.R. Sec. 4.411(d)(3).
\7\ U.S. Dep't of the Interior, Interior Board of Land Appeals:
Procedures and Practice Manual, at 4, available at: https://
www.doi.gov/sites/doi.gov/files/ibla-procedures-and-practices-manual-
apr-2023.pdf.
\8\ Id.
---------------------------------------------------------------------------
Thus, the IBLA's approach to the administrative record assumes the
following decision-making process occurred:
1. The agency requests all relevant information from the party
seeking a decision.
2. The agency reviews all relevant statutes and regulations on the
matter.
3. The agency considers this body of information and then arrives at
the decision.
This approach may, at first glance, appear appropriate. However,
there are two fundamental flaws with the IBLA's dependence on the
agency-curated administrative record. First, these records are solely
within the control of the agency; the agency determines what
information is included and excluded. Second, even if the record has
been properly compiled, much of it will be withheld from the appellant
for ``deliberative process'' purposes.
At Ryan, we have seen firsthand the consequence of these flaws:
post-hoc rationalization of decisions, and incomplete administrative
records. Agencies within the Department of Interior--contrary to the
IBLA's regulations--are compiling administrative records after an
officer's consideration of an appealed matter and excising otherwise
exculpatory documents from the record.
And yes, we have examples. We have obtained records demonstrating
that senior agency officials at the Office of Natural Resources Revenue
directed employees to force royalty payors into the appeals process
rather than obtain relevant information prior to a decision being made.
Echoing these emails, senior auditors directed staff to ``delete
emails'' and to avoid filing relevant documentation into the
administrative record. Moreover, once an appeal is underway before the
IBLA, we have found thousands of pages of records where evidence
refuting the agency's pre-determined outcome was intentionally removed
from the record. These actions demonstrate how the agencies are
undermining the impartiality of the IBLA by providing only records that
support their decisions.
And while we've certainly seen ONRR's current Director take steps
to address this type of improper behavior going forward, which I
commend, the fact remains that the appeals process itself is
structurally and procedurally flawed, making the cost of such bad acts
more severe than is reasonable, both in legal fees and in lost time.
Unique Issues with Federal Royalty Matters:
Given the backlog, numerous administrative record issues, and the
complexity of federal royalty valuation arguments, properly addressing
federal royalty cases frequently requires more resources from the
appellant and the IBLA. Put simply, federal royalty cases are
challenging. However, unlike other matters that come before the IBLA,
federal royalty appeals have a provision that uniquely benefits the
Office of Natural Resources Revenue.
Under the Royalty Simplification and Fairness Act of 1996, Congress
imposed a 33-month period on the consideration of royalty appeals. Once
this period expires, the appealed decision is deemed final and found in
the Agency's favor if the underlying amount of the appeal is greater
than or equal to $10,000.\9\ While this allows the appellant an
opportunity to seek judicial review, the standard of review for the
decision is not de novo; rather, the standard for overturning this
deemed decision is whether the agency's decision was ``arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law.'' \10\ Moreover, the administrative record is set once it arrives
at the District Court, full of the problematic omissions I discuss
above and with few opportunities to supplement the record. In 2023 and
2024, the IBLA has lost jurisdiction due to the expiration of the 33-
month period in seven cases, whereas zero federal royalty cases have
been decided on the merits during that time period.
---------------------------------------------------------------------------
\9\ 30 U.S.C. Sec. 1724(h).
\10\ 5 U.S.C. Sec. 706(2).
In matters that we have witnessed before the IBLA, this appeals
process has permitted the Office of Natural Resources Revenue to
continue into the District Court with faulty administrative records.
Indeed, when Ryan presented the IBLA judges with evidence of ONRR
curating the administrative record, the IBLA found that the Office of
Natural Resources Revenue acted in bad faith and with bias in the
compilation of the administrative record. Similarly, the IBLA has
chastised the agency for failing to provide the administrative record.
---------------------------------------------------------------------------
Here is a short excerpt from that decision:
ONRR[] . . . must also address why the Board should not
summarily set aside the decision for violating ONRR's
regulation at 30 C.F.R. Sec. 1290.105(f), which states that
`[t]he ONRR Director will review the record and render a
decision in the case.' Without the record the Director
purportedly reviewed, the Board has no basis to confirm that
the regulation has been followed. If we cannot confirm that the
ONRR Director `review[ed] the record,' as required by ONRR's
regulation, then the Director's decision must be set aside.'
\11\
---------------------------------------------------------------------------
\11\ Record on file.
Despite these findings by the IBLA, ONRR exploits the existing
backlog of cases to receive de facto ``wins'' at the IBLA simply as a
result of the IBLA not ruling on the merits of the matters under
appeal. To add insult to injury, this mode of loss also serves to
ensure that the agency's delayed and faulty decision will be given
deference in the District Court.
Thus, after waiting nearly three years for a decision, appellants
are then faced with an often insurmountable hurdle when appealing
royalty cases to the IBLA. The existing process stacks the deck against
appellants and unreasonably delays justice for all parties.
The Effect of the Expedited Appeals Review Act:
While the Expedited Appeals Review Act would not resolve ALL the
issues I have outlined, at its heart the bill aims to restore fairness
to the IBLA process by addressing the timeliness and evidence issues
plaguing the IBLA and those it governs. No longer will appellants be
forced to endure an indefinite process before the IBLA, in which the
appellants must confront an administrative record that has been curated
to support the agency's underlying decision.
First, the Act allows for the imposition of a timeline on how long
the IBLA has to decide a matter. At a minimum, the Act allows the IBLA
18 months to decide a matter. Notably, this does not mandate every
appellant exercise this right--if an appellant would prefer to pursue
the regular IBLA process or to attempt settlement with the agency, it
is within their discretion. If an appellant does exercise their right
to expedited review, then it triggers a six-month clock for the IBLA to
make a determination. There is no time limit for an appellant to file
the notice for expedited review; an appellant may file the notice on
day one or on the 60th month. Thus, by extending this right to the
appellant, it may better allow for the IBLA to prioritize those 221
cases that are ``awaiting action.''
Second, the bill better ensures that the final decision will be
issued by a neutral arbiter. As previously noted, the IBLA prides
itself on its impartiality. If it is able to make a substantive
determination within six-months, then the appeal to the District Court
would proceed as it currently does: with deference attaching to the
agency decision and with the appellant having limited opportunities to
correct the record at the District Court. Failing this, however, the
Act sets up an opportunity for impartiality at the District Court
level. If the IBLA does not make a decision within six months, while
the pending decision is still deemed to be ruled in the agency's favor,
deference does not attach to this decision, allowing the District Court
that oversees the appeal to review the matter ``de novo.'' This better
ensures fairness and a complete record. It gives an appellant the
opportunity to supplement the administrative record, and to ensure its
arguments are heard at the same level as the department's.
The Act will improve certainty and fairness to a process that
currently lacks those attributes for various interests, including
renewable energy, oil and gas, grazing, recreation and, yes,
environmental sectors. Justice delayed is justice denied, and this bill
makes significant strides toward timely justice and greater government
efficiency for all parties.
Conclusion:
Thank you for hearing this testimony on why the Expedited Appeals
Review Act is much-needed for the appeals process before the IBLA. This
Act will ensure timely resolution of appeals of agency actions for
every industry with interests attached to federal lands and waters.
Ryan commends the introduction of this legislation and supports its
passage and consideration this session.
______
Dr. Wittman. Thank you, Mr. Travis, for your testimony. Our
next witness is Mr. Derf Johnson. He is the Deputy Director of
the Montana Environmental Information Center, and he is based
out of Helena, Montana.
Mr. Johnson, you are now recognized for 5 minutes.
STATEMENT OF DERF JOHNSON, DEPUTY DIRECTOR, MONTANA
ENVIRONMENTAL INFORMATION CENTER, HELENA, MONTANA
Mr. Johnson. Chairman Stauber, Ranking Member Ocasio-
Cortez, and members of the Subcommittee, my name is Derf
Johnson. I am the Deputy Director of the Montana Environmental
Information Center.
I am going to split my comments, and first address the Crow
Revenue Act and second provide some general comments on the two
critical mineral bills.
The Crow Revenue Act would allow for a coal mine to evade
environmental review, privatize close to 1,000 acres of public
lands in the Bull Mountains. As written, it will not benefit
the Crow Tribe, as the revenue agreement applies to coal that
will not be developed. Even if the bill were to be amended, it
still would likely not address our concerns. And if the mine
were to proceed, it would further devastate water resources in
the Bull Mountains, a semi-arid central Montana range dependent
upon cattle ranching.
As the Ranking Member alluded to, Signal Peak is a bad
actor that recently pled guilty to lying to mine safety
regulators about violations of worker and environmental
standards, and is presently on criminal probation at the
Department of Justice. That is the big picture.
This bill would be an end run around the NEPA process. The
expansion in question would dramatically increase the permitted
reserves of this mine. And if that coal were to be mined and
burned, it would be 375 million tons of carbon, which is
approximately 8 percent of the United States' annual emissions.
As part of the land transfer agreement, close to 1,000
acres of public lands in the Bull Mountains would be
privatized. This is in the heart of elk country, some of the
best elk hunting in Montana. And because this range is largely
private, the public lands are critical for that access, and
that is why the Montana Wildlife Federation opposes this
legislation.
The bill does contain a revenue sharing agreement, where
the Hope family would share in revenue derived from the
potential development of lands located on the Crow Reservation.
This coal is unlikely to be mined. It is not located next to
any mining. It is not located next to any infrastructure. If
the revenue agreement were to be amended so that it applied to
the coal near the Signal Peak mine, it wouldn't resolve our
concerns because, as written, it doesn't require good faith
negotiations, and the agreement is not conditioned upon the
legislation's passage.
The dominant land use in the Bull Mountains is ranching,
and water is absolutely critical for this process. The mining
that has occurred in the Bull Mountains has repeatedly caused
subsidence, which de-waters springs and wells for the ranchers
in the area, and Signal Peak has not willingly or been able to
replace the water resources for those individuals. Based on
these concerns, the misnamed Crow Revenue Act should be
rejected.
For critical minerals, these two bills have merit, quite a
bit of merit, such as bolstering clean energy and avoiding
countries with poor human rights track records. However, in
considering this legislation, we must be careful to assure that
mining is conducted so that it fully considers and mitigates
environmental and human rights issues, and that we not simply
focus on mining, but the full range of opportunities including
reuse, repurpose, recycling, and unconventional feedstocks.
If the goal is more U.S. mining, then it must be
accompanied with reform. Rare earth mining is more toxic, it is
often radioactive, so incorporating community concerns is
absolutely paramount. Currently, public lands mining decisions
in the United States are driven by the General Mining Act of
1872, a 152-year-old law. It doesn't take into account
environmental and community concerns at the initial outset. A
prime example of this is the potential Sheep Creek mine at the
headwaters of Montana's Bitterroot. There has been extreme
community outcry over the clean water impacts and other impacts
that that mine may pose.
Another point, we need to close the gap in corporate due
diligence requirements, and this bill could help us get there.
Failure to align our standards with the EU's, for example, will
close off markets to our products, rendering mining and clean
energy manufacturing less competitive. Due diligence de-risks
mining supply chains, simultaneously removing entities of
concern from supply chains and providing a premium for
responsible mining.
Finally, we need to focus on alternatives. Recycling is an
absolutely wonderful way, and there are currently 8,000 jobs in
the United States associated with it. Additionally, we are
looking at places like the Butte Berkeley Pit and the acid mine
drainage for critical minerals resources. So, with that we
don't need to compromise the American public for these
resources.
And I am here for any questions.
[The prepared statement of Mr. Johnson follows:]
Prepared Statement of Derf Johnson, Deputy Director, Montana
Environmental Information Center
on H.R. 7662, H.R. 7807 and H.R. 8952
Dear Chairman Stauber, Ranking Member Ocasio-Cortez, and Members of
the House Natural Resources Energy and Mineral Resources Subcommittee:
Thank you for the opportunity to appear before the House
Subcommittee on Energy and Mineral Resources to offer my opinion on the
Crow Revenue Act (H.R. 8952), the Intergovernmental Critical Minerals
Task Force Act (H.R. 7807), and the Critical Minerals Security Act of
2024.
I am the Deputy Director of the Montana Environmental Information
Center (MEIC), a non-profit environmental advocate founded in 1973.
MEIC has tens of thousands of members and supporters in Montana and
across the United States. MEIC's organizational mission is to protect
and restore the land, air, water, and life-sustaining climate of
Montana, and advocates, educates, and empowers people in service of a
clean and healthful environment for present and future generations.
Montana has a unique constitutional guarantee of a right to a clean and
healthful environment for its people, and MEIC works to protect and
enforce that right.
Through my work, I have gained unique insight into the permitting
process for coal and hardrock mines in Montana. As a law student at the
University of Montana, I focused on environmental and natural resources
issues, and in particular energy production and mining. For the past 15
years, I have been employed as both a lobbyist and attorney for MEIC
and have focused on the legal and policy issues of mining and energy
production in Montana. I represent MEIC and other parties in legal
matters before state and federal courts, serve as a registered lobbyist
during the Montana Legislature's biennial sessions, and work with both
state and federal agencies in implementing policies and regulations on
these matters. This experience has helped to inform my opinion on
mining and energy development, both in Montana and across the West.
As a native Montanan, I share a common sentiment of caring for and
valuing the land we call home. Montana is an important place for me
personally. It is a place of abundant beauty and recreation that is
unlike anywhere else that I have lived or traveled. Over the years, I
have traveled extensively across Montana--to hunt, fish, camp, bike,
boat, and drive, and have done so in virtually every county in the
state. I particularly enjoy visiting the vast acreage of federal land
that we have in Montana. These places are some of the least populous
places in the lower 48 and offer the opportunity for solace and escape
from the daily grind of life.
Because these bills currently before the Subcommittee address two
distinctly different issues, I will take them up separately below.
I. The Crow Revenue Act: H.R. 8952 (Rep. Zinke)
The mistitled ``Crow Revenue Act'' is legislation that would allow
for the Signal Peak Mine to proceed with a major mine expansion and to
mine federal coal without a required environmental review under the
National Environmental Policy Act (NEPA). If such a review were to be
conducted, it would fully disclose and characterize the impacts that
mining and burning the coal will have on our climate. The mine has
proven devastating to the Bull Mountains, a semi-arid, central Montana
range that has traditionally been dependent upon cattle ranching for
its local economy. As written, the Crow Revenue Act will not benefit
the Crow Tribe, as the revenue sharing agreement applies to coal that
does not have an active mine in its vicinity and will not be developed.
Further, the legislation is not conditioned on the establishment of a
revenue sharing agreement, and the details of such an agreement are
unspecified and undetermined. Finally, the coal industry in the United
States, and even across the world, is entering a permanent structural
decline, and state, Federal, and Tribal governments should not plan for
continued revenue from these operations to fund critical services and
infrastructure.
The Bull Mountains mine is an underground, longwall coal mining
operation north of Billings, Montana. The mine is owned by Signal Peak
Energy, which is in turn owned by a consortium of companies with equal
shares: utility FirstEnergy of Ohio, international commodities trader
Gunvor, and Boich Companies. Over the past several years, Signal Peak
has demonstrated itself to be a uniquely bad corporate actor that has
not acted fairly toward the public or regulators.\1\ Signal Peak
recently pled guilty to lying to mine safety regulators about
violations of worker and environmental safety standards. This
conviction was part of a larger corruption investigation surrounding
the mine that led to numerous convictions for embezzlement, money
laundering, drug trafficking, and gun crimes. The steady stream of
convictions related to misconduct from the Bull Mountains Mine
continues, with reports of the former mine safety director admitting in
federal court to lying about mine accidents. Signal Peak is presently
on probation for its criminal convictions.
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\1\ Tabuchi, Hiroko. A faked kidnapping and cocaine: A Montana
Mine's Descent Into Chaos. The New York Times, January 13, 2023.
https://www.nytimes.com/2023/01/13/climate/signal-peak-mine-coal.html
[Accessed Nov. 12, 2024].
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Signal Peak has been seeking an expansion of its operations at the
Bull Mountains Mine that would dramatically increase the permitted
reserves of the mine and, by volume, potentially create the largest
underground coal mine in the United States. The climate implications of
this massive expansion cannot be understated. The expansion of the mine
would allow for an additional 176 million tons of coal to be mined.
Based upon the carbon content of the coal, combustion would result in
approximately 375 million tons of carbon pollution once the coal is
burned, an amount greater than the annual emissions of all but 16
countries in the world today and nearly 8% of the annual total for
carbon dioxide emissions in the United States.
The U.S. Office of Surface Mining (OSM) approved this expansion in
2015. However, in subsequent litigation brought by public interest
watchdogs including MEIC, a court determined that the environmental
impact statement under NEPA did not contain a sufficient analysis of
the climate implications associated with the expansion. The litigation
was subsequently remanded to federal district court, and Signal Peak
was then prohibited from mining the federal coal until OSM reanalyzed
and sufficiently considered the climate change implications of the
expansion. Specifically, OSM was directed to characterize the impacts
associated with approving an additional 375 million tons of greenhouse
gas emissions, whether through the Social Cost of Greenhouse Gases or
another science-based metric.
The Crow Revenue Act would allow Signal Peak to bypass the standard
NEPA process currently being conducted in response to a court order and
to immediately begin mining the federal coal. Under the Crow Revenue
Act, Signal Peak would benefit immensely from a land privatization
scheme involving federal land directly adjacent to the Bull Mountains
Mine and private in-holdings on the Crow Reservation. The Act would
transfer federally owned mineral and surface assets in the Bull
Mountains (Signal Peak Tracts) to a private, family-held trust, the
Hope Family Trust, in order to enable Signal Peak to avoid the laws
that govern the mining of federally owned coal. In exchange, the Hope
Family would relinquish to the Crow their 4,660 acres of mineral assets
within the Crow Reservation (Hope Family Tracts). The agreement would
not transfer the surface ownership rights of the lands within the Crow
Reservation to the Crow Tribe. Along with the 4,530-acres of mineral
assets to be privatized in the Bull Mountains, the Crow Revenue Act
would trade away 940 acres of BLM surface lands in an already
checkerboarded landscape--a major loss to the residents who hunt and
recreate in an area where it is already difficult to access our public
lands. The Bull Mountains produce some of the largest trophy elk in
Montana and the range is a prized region for hunters from across the
state. You can also find whitetail, mule deer, Merriam's turkeys,
bobcats, and mountain lions in the Bulls. However, because the range is
largely private, the public lands and access points are a critical
aspect of preserving Montana's public lands hunting heritage in central
Montana. The Crow Revenue Act would only further limit these
opportunities by privatizing public lands.
Presumably, upon passage of the bill, the Hope Family Trust would
lease its newly acquired mineral rights to the Signal Peak mine,
although the bill is silent on this point. The bill does not mention
the value of the royalty payments that the Hope Family would realize,
and that information has not been made public.
More concerning, the bill contains a reference to a ``Revenue
Sharing Agreement'' under Section 4, part (d). This section specifies
that the Hope Family would potentially share in revenue derived from
the development of the Hope Family Tracts, the lands located on the
Crow Reservation, ``if those mineral interests are developed at a later
date.'' Development of this coal, located on the Crow Reservation, is
incredibly unlikely, as the coal is not located next to a currently
active mine or necessary infrastructure and has not gone through the
requisite permitting processes.
If the bill is amended to apply the Revenue Sharing Agreement to
the Hope Family's newly acquired Signal Peak Tracts, it would still not
address serious flaws in the Revenue Sharing Agreement. This is because
the legislation does not require good-faith negotiations between the
parties and a binding agreement within a specified period. Simply put,
it does not provide an actual, legal guarantee of revenue for the Crow
Tribe.\2\ To date, no Revenue Sharing Agreement has been made publicly
available.
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\2\ See Mike Hill and Alee Bird Hat: Daines' bill is misleading,
Billings Gazette, July 27, 2024. https://billingsgazette.com/
article_42079ed6-528e-58ce-93fc-d3337d784753.html. Op-ed. [Accessed on
Nov. 12, 2024].
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As mentioned above, the dominant economic land use in the Bull
Mountains is ranching. The Bull Mountains are semi-arid, with little
available water resources. The limited water resources in the Bull
Mountains, in particular groundwater-fed springs, are a critical
resource for stock watering and ranching operations. In addition to
ranchers, landowners also depend on springs and groundwater to subsist
on their properties in the Bull Mountains. Signal Peak is an
underground, longwall operation. As the mine progresses, the
engineering allows the mine roof to collapse or subside as the longwall
advances. This subsidence causes splitting and depression of the
surface land above the mine and has repeatedly dewatered springs and
wells and caused extensive fracturing of the land surface in the Bull
Mountains. Signal Peak has not willingly or successfully replaced the
water it has damaged, and on multiple occasions, the company has ended
ranchers' leases (forcing them off the land) rather than reclaim
damaged springs and wells. Approving the Crow Revenue Act will only
exacerbate this issue, and seriously impact surface owners who have
ranched and lived in the Bull Mountains for generations.
Finally, the coal industry in the United States is in a tailspin,
and internationally there are clear signs that worldwide coal demand
will flatline and begin a steady, structural decline within the next
few years, in large part due to more affordable and cleaner energy
sources coming online. State, Federal, and Tribal governments should
not plan for continued, predictable revenue from these operations to
fund critical services and infrastructure. Over the past decade,
numerous examples have demonstrated that heavy reliance on revenue from
coal mining has proven to be an unpredictable and problematic funding
scheme for western states and even the Crow tribe. In April of this
year, the Absaloka mine on the Crow Reservation shut its doors, as its
only customer, the Sherburne County Generating Station in Becker,
Minnesota planned for full retirement of its operation. There was no
other market for the Absaloka mine's coal. This was a significant
source of non-federal income and employment for the tribe. While
royalty payments to the Crow Tribe from the Signal Peak Mine (assuming
the bill is amended) may offer short--term funding solutions, the
payments are unlikely to represent a long-term funding solution, and
any abrupt end to those payments could cause disruptions for the Tribal
government through a boom-and-bust scenario.
To conclude, the misnamed Crow Revenue Act should be rejected by
this committee. As written, it will not provide revenue to the Crow
Tribe, and even with amendments will likely not address the
deficiencies in the concepts currently outlined in the Revenue Sharing
Agreement section. What the legislation will authorize is for the
mining of a very substantial amount of coal that will result in more
GHG emissions than the single largest source of emissions in the United
States and will do so without an actual analysis of its implications.
The legislation will also allow for the Bull Mountains Mine to destroy
essential springs and wells in a semi-arid region, force family
ranchers off their land, and will privatize federal public lands for
the benefit of private interests.
II. Intergovernmental Critical Minerals Task Force Act: H.R. 7807 (Rep.
Obernolte) and Critical Minerals Security Act of 2024: H.R.
7662 (Rep. Houlahan)
H.R. 7807 creates an intergovernmental task force charged with
recommending how we reduce our mineral reliance on foreign entities of
concern while increasing sourcing from mining and recycling. H.R. 7662
requires reports to Congress on the locations and beneficial ownership
of rare earth and other critical mineral deposits worldwide and studies
for advanced mining and processing techniques. The goals of H.R. 7807
and H.R. 7662 have merit, such as addressing the materials needs for
the clean energy transition and avoiding relationships with countries
that have poor human rights track records. These bills should be
careful not to narrowly view critical minerals sourcing to just mining,
and instead consider the full range of alternative sources including
reuse, repurposing, recycling, and unconventional feedstocks from mine
tailings or acid mine drainage.
Neither H.R. 7662 or H.R. 7807 close the gaps in U.S. environmental
standards or corporate due diligence requirements. Failure to align
domestic standards with the European Union's due diligence will close
off those markets to domestically produced products, rendering American
mining and clean energy manufacturing industries less competitive. Due
diligence processes de-risk mineral supply chains through company
plans, investigation, avoidance, and mitigation of human rights and
environmental violations. Due diligence can simultaneously help remove
foreign entities of concern from our mineral supply chains and provide
companies a premium for responsible sourcing.
Any attempt to incentivize domestic production of minerals must be
accompanied with a reform of our outdated mining laws. With increased
mining comes increased impacts to public health, the environment, and
especially frontline communities. According to the Toxic Release
Inventory, managed by the U.S. Environmental Protection Agency (EPA),
metal mining already releases by far the largest volume of toxic
constituents into our environment,\3\ and more than 40% of headwaters
in the U.S. have been polluted by mining. Even more concerning,
compared to other kinds of hard-rock mining, rare earth element mines
produce more toxic waste, the waste is often radioactive, and the waste
often escapes beyond the fence line.\4\ With this in mind, as well as
the serious distinct impacts that metals mining has on our wildlife,\5\
air, and water, any evaluation of increased mining activity must be
accompanied by input and consideration on the elimination and
mitigation of its impacts.
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\3\ United States Environmental Protection Agency. Releases by
Chemical and Industry. TRI National Analysis. March, 2024. https://
www.epa.gov/trinationalanalysis/releases-chemical-and-industry.
\4\ Paul, Justin, Campbell, Gwenette. U.S. Environmental Protection
Agency. Investigating Rare Earth Element Mine Development in EPA Region
8 and Potential Environmental Impacts (August 15, 2011). Available
online: https://reviewboard.ca/upload/project_document/EA1011
_001_Investigating_Rare_Earth_Element_Mine_Development_in_EPA_Region_8_a
nd_Potential_ Environmental_Impacts.PDF. Gramling, Carolyn. Rare earth
mining may be key to our renewable energy future. But at what cost?--We
take you inside Mountain Pass, the only rare earth mine in the United
States. ScienceNews (January 11, 2023) https://www.sciencenews.org/
article/rare-earth-mining-renewable-energy-future [Accessed Nov. 14,
2024.
\5\ University of Cambridge. ``Thousands of birds and fish
threatened by mining for clean energy transition, study finds.''
ScienceDaily, 26 July 2024. https://www.sciencedaily.com/releases/2024/
07/240726113419.html [Accessed Nov. 13, 2024].
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If the goal is to domesticate more mining in the United States,
then we need to first take a hard look at our mining safeguards. U.S.
mining laws, and the laws and regulations of many states, are sorely
out of date and in need of modernization. A recent report by the
Interagency Working Group on Mining Laws, Regulations, a cross section
of agency representatives, found that, in planning for an increase in
domestic sourcing of minerals, ``We must also learn from the lessons of
the past and ensure that our actions do not come at the expense of
human health or workplace safety; Tribal consultation or community
engagement; or the air, water, and other crucial resources upon which
we all depend.'' \6\ Incorporating the considerations and concerns of
frontline communities is especially important for critical minerals, as
mineral resources are often located on or adjacent to Tribal
Reservations. A recent analysis found that ``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.'' \7\
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\6\ Biden-Harris Administration's Interagency Working Group on
Mining Laws, Regulations, and Permitting, Recommendations to Improve
Mining on Public Lands (September, 2023). https://www.doi.gov/sites/
default/files/mriwg-report-final-508.pdf [Accessed Nov. 14, 2024].
\7\ Block, Samuel. Mining Energy-Transition Metals: National Aims,
Local Conflicts. MSCI, ESG Research (June 3, 2021). https://
www.msci.com/www/blog-posts/mining-energy-transition-metals/02531033947
[Last accessed Nov. 14, 2024].
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Most problematic, decisions over public lands mining in the United
States continue to be driven by the General Mining Law of 1872, a 152-
year-old law that has remained largely unchanged and does not account
for the serious societal changes, increased population and its demands
on public lands, and development of 21st century mining technology.
Initial decisions on pursuing mineral development and mining are
typically made without full guidance or consideration of the
environmental and social impacts of the site in question, which often
leads to contentious mining proposals and poorly sited mining projects.
Already, potential mining proposals in Montana for rare earth
elements are drumming up extensive opposition from communities, who
value certain landscapes for amenities beyond mining, such as the
fishing and recreation industry, and access to clean water. The
potential Sheep Creek mine at the headwaters of Montana's Bitterroot
River is a prime example.\8\ Poorly sited mining claims under the
General Mining Law consistently make the press in Montana, most
recently where a junior mining company took advantage of a 48-hour
expiration of an administrative mineral withdrawal on land owned by the
Bureau of Land Management (BLM) on the defunct Zortman-Landusky mine
site to stake 10 claims. Zortman-Landusky is a poster child for poor
mining in Montana that has poisoned a water source for the Fort Belknap
Indian Community and cost the state and federal government
approximately $80 million and counting in reclamation costs.\9\ The
Tribe has repeatedly voiced its opposition to further mining in the
Little Rocky Mountains, but the General Mining Act does not allow for
development to be steered away from this region.
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\8\ Boddy, Nathan. Potential mine near Sheep Creek worries
Bitterroot Valley residents: While companies exploring the area tout
the potential for a multi-billion dollar operation, community members
fear for the environment and their way of life. Montana Free Press
(July 18, 2023). https://montanafreepress.org/2023/07/18/potential-
mine-near-sheep-creek-worries-bitterroot-valley-residents/ [Accessed on
Nov. 13, 2024].
\9\ Eggert, Amanda. New mining claims at Zortman prompt push for
investigation. Montana Free Press, October 26, 2021. https://
montanafreepress.org/2021/10/06/mine-claims-in-zortman-promp-call-for-
investigation/ [Accessed on Nov. 13, 2024].
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A common misconception is that modernizing environmental and public
health safeguards would render the U.S. less competitive relative to
other locations in the mining and production of critical minerals.
However, the opposite is true; peer nations are implementing high
standards regarding due diligence and ESG in materials sourcing, and if
we do not keep up, we risk losing access to those markets. For that
reason, the legislation needs to codify the same human rights due
diligence requirements and standards the Europeans now demand apply to
minerals, batteries, and other products placed in the EU market.
Failure to align the domestic mineral supply chain with these due
diligence standards may close off EU markets to American minerals,
risking our competitiveness.
Further, as supply chains continue to be established and the clean
energy economy matures, governments and consumers are increasingly
demanding that materials be sourced with environmental and human rights
considerations in mind. Recognizing this, European Union partners have
already embedded the United Nations Guiding Principles (UNGP)
definitions of human rights due diligence and supportive frameworks
from the Organization for Economic Co-operation and Development (OECD)
into their mineral supply chain laws and regulations, notably the EU
Battery Law. Under the law's due diligence requirements, companies are
required to ``identify, prevent, and address social and environmental
risks linked to the sourcing, processing and trading of raw materials
such as lithium, cobalt, nickel and natural graphite contained in their
batteries.'' \10\ Assuring that U.S. regulatory safeguards align with
those existing efforts and regulations of our partner nations will not
just assist in addressing environmental and human rights concerns, but
will potentially open additional markets for critical minerals
producers.
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\10\ European Commission. (August 2023). Circular economy: New law
on more sustainable, circular and safe batteries enters into force. EU
Environment Newsletter. https://environment.ec.europa.eu/news/new-law-
more-sustainable-circular-and-safe-batteries-enters-force-2023-08-17_en
[Accessed Nov. 13, 2024].
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Due diligence requirements are not a sweeping or novel concept for
the United States, but we have yet to codify our commitments into laws
to ensure that companies are abiding by them. The US, as a member state
of the Office for Economic Cooperation and Development, endorsed the
OECD framework for due diligence known as the Guidelines for
Multinational Enterprises on Responsible Business Conduct (``OECD
Guidelines'') in May 2011. The State Department is the lead agency
responsible for implementing these guidelines through Agency activities
and the U.S. government has further embedded them into other Agency
plans through the National Action Plan on Responsible Business Conduct.
These guidelines provide a ready to implement, 5-step framework, based
on best practice and endorsed by governments globally, for companies to
carry out sound risk management through effective human rights due
diligence.
Compared to most ESG reporting frameworks, which focus on easily
quantifiable risks and associated actions, OECD due diligence requires
companies to identify the risks that are most salient and likely to
occur. It pushes beyond risk identification, requiring companies to
adapt their management systems and operations on the ground to mitigate
them. It also supports operational sustainability through helping
companies address harms effectively and efficiently when they do occur
and instilling a culture of continuous improvement through emphasizing
due diligence as an ongoing process.
The U.S. codifying our commitments into legal corporate due
diligence requirements of the mining industry ensures that companies
are undertaking the strongest, most effective form of risk management
that responds to investor demands. A 2024 Earnst & Young report on the
top 10 business risks and opportunities for mining and metals found
that local community impacts are the number one ESG factor facing the
most scrutiny from investors.\11\ Investors know from cases like that
of the Las Bambas Copper Mine in Peru, where community protests over
social and environmental impacts shut down a mine for several weeks and
caused financial losses of $9.5 million each day, that effective due
diligence is core to a company's social license to operate, which is
necessary for a project's sustainable output.\12\ Requiring companies
to undertake OECD-aligned due diligence is in the best interest of the
U.S. in its efforts to build strong, reliable mineral supply chains.
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\11\ Mitchell, Paul. Top 10 risks and opportunities for mining and
metals companies in 2025. https://www.ey.com/en_us/insights/energy-
resources/risks-opportunities [Accessed on Nov. 14, 2024].
\12\ Business and Human Rights Resource Center, Peru: Indigenous
communities protest against the modification of the Environmental
Impact Assessment (EIA) of the Las Bambas mining project (Mar. 11,
2024) https://www.business-humanrights.org/en/latest-news/peru-
indigenous-communities-protest-against-the-modification-of-the-
environmental-impact-assessment-eia-of-the-las-bambas-mining-project/
[Accessed Nov. 14, 2024].
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Perhaps most important, the sourcing of critical minerals does not
have to be entirely reliant upon greenfield mining. In fact, the United
States is in the beginning stages of the development of circular supply
chains for the reuse and recycling of critical minerals used for the
clean energy transition. Additionally, by making products such as EV
batteries more efficient, and longer lasting, we could reduce the total
amount of primary or virgin materials.
Planning and developing cities and urban areas with mass transit
and density in mind can reduce our need for critical minerals.
According to a report by the Climate and Community Institute and the
University of California, Davis, such practices could ``lower the
demand for lithium between 18 and 66 percent.'' Further, considering
smaller vehicles and transportation options, which in turn requires
smaller batteries and less minerals, could see a ``42% reduction'' in
lithium demand by 2050.\13\
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\13\ Thea Riofrancos, Alissa Kendall, Kristi K. Dayemo, et al,
``Achieving Zero Emissions with More Mobility and Less Mining,'' 2023,
Climate and Community Project [http://www.climateandcommunity.org/more-
mobility-less-mining].
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Sourcing from already environmentally disturbed areas, such as
legacy mines and waste repositories, may also offer an opportunity for
increasing critical minerals production. Acidic waters emanating from
Montana's abandoned mines have been documented to contain abundant rare
earth elements, and researchers and the United States Department of
Defense are investigating the potential for the environmental
catastrophe that is the Berkeley Pit in Butte to offer the potential
for sourcing elements.\14\ Coal ash impoundments have also been
identified as a potential source of rare earth elements, offering an
opportunity to clean up and repurpose a legacy waste stream.
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\14\ Adams, Duncan. Berkeley Pit could yield value again. Montana
Standard, April 2, 2024. https://mtstandard.com/news/local/berkeley-
pit-rare-earth-elements-montana-mining-association-defense/
article_5b74fafe-f136-11ee-b50d-abcf9ea6f3a4.html [Accessed Nov. 13,
2024].
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The above-mentioned alternatives are not half baked, delusional
visions without backing. Quite the contrary, alternatives and
efficiency gains in the battery industry have already had a major
impact on the mineral demands for production of those products. Without
technological developments and recycling solutions, over the past 10
years demand for lithium would have been 58% greater, nickel 127%
greater, and cobalt 138% greater.\15\ The United States is actively
investing in battery reuse and recycling capacity, with facilities that
have already been announced accounting for over 8,000 jobs.\16\ As more
EVs come off the road at the end of their useful life, these facilities
will provide a valuable domestic source of critical minerals and
affordable batteries.
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\15\ Walter, Daan, Atkinson, et al. The Battery Mineral Loop: The
path from extraction to circularity. Rocky Mountain Institute. July,
2024.
\16\ See National Renewable Energy Lab. (March, 2024). Online
NAATBatt Lithium-Ion Battery Supply Chain Database. (Last updated Sept.
26, 2024). https://www.nrel.gov/transportation/li-ion-battery-supply-
chain-database-online.html. [Accessed Nov. 14, 2024].
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As the United States continues to transition to cleaner, more
affordable, and carbon-free sources of energy, there will undoubtedly
be an associated, continued increase in demand for certain raw
materials and metals necessary for the infrastructure and build-out of
this new energy system. But in our race to clean up our energy system,
we don't have to and shouldn't compromise clean water, public health,
and the American people.
Thank you again for the opportunity to appear before the Committee.
I wish the Committee well as it seeks to address the important issues
that surround critical minerals development and coal mining on our
nation's public lands.
______
Dr. Wittman. Thank you for your testimony, Mr. Johnson. Our
next witness is Mr. Frank White Clay. He is the Chairman of the
Crow Tribe of Indians, and he is stationed in Crow Agency,
Montana.
Mr. White Clay, you are now recognized for 5 minutes.
STATEMENT OF FRANK WHITE CLAY, CHAIRMAN, CROW TRIBE OF INDIANS,
MONTANA
Mr. White Clay. Thank you, Chairman and members of the
Committee. I am Frank White Clay, Chairman of the Crow Nation.
I am here today to express our full support of the Crow
Revenue Act, H.R. 8951. This bill provides an equitable
resolution to the long-standing land and resource management
challenges on the Crow Reservation, and strengthens our future
as a tribe. The Crow Revenue Act will transfer approximately
4,660 acres of private subsurface inholdings, known as the Hope
Family Tracts on the Crow Reservation of the Crow Tribe of
Montana. In exchange, the Crow Tribe would transfer 4,530 acres
of Federal subsurface and 940 acres of Federal surface interest
in Musselshell County, Montana, referred to as the Bull
Mountain Tracts.
A key provision of the bill requires that the Crow Tribe
and the Hope family enter into a revenue sharing agreement for
any development of the Bull Mountain tracts. This will provide
a crucial revenue stream for the Crow Tribe as we seek to
revitalize our economy. The bill mirrors the bipartisan
Northern Cheyenne Lands Act of 2014, which successfully
addressed similar issues for the Northern Cheyenne.
H.R. 952 offers the same pragmatic solution. It resolves
private inholdings on a reservation, while creating much-needed
economic opportunities for the Crow Tribe, and ensuring
certainty for development in Musselshell County. The
legislation mandates a three-party land exchange involving the
Crow Tribe, the Hope Family Trust, and the U.S. Government.
The Secretary of the Interior is required to convey
approximately 4,530 acres of Federal subsurface and 940 acres
of Federal surface interests at the Bull Mountains to the Hope
Family Trust. In exchange, the Hope Family Trust will convey
4,660 acres of subsurface within the boundaries of the Crow
Reservation to the Crow Tribe. Upon request by the tribe, the
Secretary is directed to take these lands into trust for the
benefit of the Crow Tribe.
The land exchange will allow the Crow Tribe to consolidate
our ownership and control of our own lands within the
reservation, a crucial step in managing and developing our own
natural resources. The legislation provides the potential for
critical revenue stream for the Crow Tribe of the Bull Mountain
tracts are developed and round up with the expedited reduction
of the Absaloka Mine on the Crow Reservation, which provided
substantial royalties to the tribe. These revenues would help
mitigate the economic impact in support of the tribe's
financial stability.
The Crow Tribe has always depended on our lands and natural
resources for survival. Over the centuries, the tribe has made
supreme sacrifices to reclaim and maintain our homeland. Since
the treaty of 1851 and 1886, the tribe's land base has been
continuously reduced from 38 million acres spanning Montana and
Wyoming to just 2.4 million acres today. The bill addresses a
central element of our struggle consolidating our land base,
securing our right to manage our own land, and benefit from our
own resources.
As a result of these land losses, the tribe currently faces
significant economic challenges, including limited access to
employment and development opportunities on the Crow
Reservation. Non-tribal members, meaning non-tribal owners,
control large portions of the surface and subsurface holdings
within the reservation, which limits the tribe's ability to
manage and benefit from our own resources.
The transfer of 4,660 acres of subsurface on the Crow
Reservation to the tribe is critical to allowing us to exercise
full control over our own future development. This
consolidation of ownership, combined with the ability to
regenerate revenues from the Bull Mountain tracts represents an
opportunity for the tribe to address our severe economic and
social challenges. The tribe has been denied access to Federal
funds, grants, and incentives, due to the invalid debts being
referred to the Treasury Offset Program, also known as the Do
Not Pay list. This prevented the Crow Tribe from benefiting
from many new programs created and funded during the COVID-19
pandemic, which it otherwise would be eligible for.
Fortunately, my administration was able to clear this issue
up. However, we will not be able to retroactively receive these
awards. Restoring our economic independence through our land
resource management will help mitigate these lost funds and
strengthen the tribe's future by providing much-needed
resources to develop our own economy.
The Crow Revenue Act is not just a land exchange; it is an
investment in the future of the Crow Tribe. Thank you.
[The prepared statement of Mr. White Clay follows:]
Prepared Statement of Frank White Clay, Chairman, Crow Nation
on H.R. 8952
Introduction
Chairman and members of the Committee, I am Frank White Clay,
Chairman of the Crow Nation. I am here today to express our full
support for the Crow Revenue Act. This legislation addresses crucial
land management issues, generates opportunities for economic growth,
and reaffirms the sovereignty of the Crow Tribe by consolidating our
ownership of ancestral lands. This bill provides an equitable
resolution to long-standing land and resource management challenges on
the Crow Reservation and strengthens our future as a Tribe.
Background on the Crow Revenue Act
The Crow Revenue Act would transfer approximately 4,660 acres of
private subsurface inholdings, known as the Hope Family Tracts, on the
Crow Reservation to the Crow Tribe of Montana. In exchange, the Tribe
would transfer 4,530 acres of federal subsurface and 940 acres of
federal surface interests in Musselshell County, Montana--referred to
as the Bull Mountains Tracts. A key provision of the bill requires that
the Crow Tribe and the Hope Family enter into a Revenue Sharing
Agreement for any development of the Bull Mountains Tracts. This would
provide a crucial revenue stream for the Crow Tribe as we seek to
revitalize our economy.
This bill mirrors the bipartisan Northern Cheyenne Lands Act of
2014, which successfully addressed similar issues for the Northern
Cheyenne Tribe. H.R. 8952 offers the same pragmatic solution: it
resolves private inholdings on our Reservation while creating much--
needed economic opportunities for the Tribe and ensuring certainty for
development in Musselshell County.
Three-Party Land Exchange
The legislation mandates a three-party land exchange involving the
Crow Tribe, the Hope Family Trust, and the United States government:
The Secretary of the Interior is required to convey
approximately 4,530 acres of federal subsurface and 940
acres of federal surface interests at Bull Mountains to the
Hope Family Trust.
In exchange, the Hope Family Trust will convey 4,660 acres
of subsurface within the boundaries of the Crow Reservation
to the Crow Tribe. Upon request by the Tribe, the Secretary
is directed to take these lands into trust for the benefit
of the Crow Tribe.
This land exchange will allow the Tribe to consolidate our
ownership and control of lands within the Reservation, a
crucial step in managing and developing our natural
resources.
Economic and Cultural Significance
This legislation provides the potential for a critical revenue
stream for the Crow Tribe if the Bull Mountains Tracts are developed.
With the expedited closure of the Apsaalooke Mine on the Crow
Reservation, which provided substantial royalties to the Tribe, these
revenues would help mitigate the economic impact and support the
Tribe's financial stability.
The Crow Tribe has always depended on our lands and natural
resources for survival. Over the centuries, the Tribe has made supreme
sacrifices to reclaim and maintain our homeland. Since the Treaty of
1851and 1886, the Tribe's land base has been continuously reduced--from
over 38 million acres spanning Montana and Wyoming to just 2.3 million
acres today.
This bill addresses a central element of our struggle:
consolidating our land base and securing our right to manage and
benefit from our resources.
As a result of these land losses, the Tribe currently faces
significant economic challenges, including limited access to employment
and development opportunities on the Reservation. Non-tribal owners
control large portions of surface and subsurface holdings within the
Reservation, which further limits the Tribe's ability to manage and
benefit from our natural resources.
The transfer of 4,660 acres of subsurface on the Crow Reservation
to the Tribe is critical to allowing us to exercise full control over
future development. This consolidation of ownership, combined with the
ability to generate revenues from the Bull Mountains Tracts, represents
an opportunity for the Tribe to address our severe economic and social
challenges.
The Tribe has also been denied access to federal grants and
incentives due to invalid debts being referred to the Treasury Offset
Program, also known as the ``Do Not Pay'' list. This prevented the Crow
Tribe from benefiting from many new programs created and funded during
the COVID-19 pandemic which it was otherwise eligible for. Fortunately,
my Administration was able to clear this issue up, however we will not
be able to retroactively receive these awards.
Restoring our economic independence through land and resource
management will help mitigate these lost funds and strengthen the
Tribe's future by providing much needed resources to help develop an
economy.
Conclusion
The Crow Revenue Act is not just a land exchange; it is an
investment in the future of the Crow Tribe. It enables us to
consolidate our ownership of our ancestral lands, secure much--needed
revenue, and regain a measure of economic independence. I urge the
Committee and the Senate to support this critical legislation, which
will help the Crow Tribe overcome long--standing challenges and build a
brighter future for our people.
Thank you for your consideration of this important legislation and
please contact me directly with any questions.
______
Dr. Wittman. Thank you, Mr. White Clay, for your testimony.
We will now recognize Members for 5 minutes for questions.
Mr. Rosendale, we will start with you.
Mr. Rosendale. Thank you very much, Mr. Chair, for
convening this important hearing and for Representative Zinke
introducing legislation H.R. 8952.
The Crow Revenue Act is critical for ensuring the continued
operation of the Bull Mountains Mine, providing stability and
alleviating concerns about its potential closure. Montana and
its tribes rely on coal production from Bull Mountain Mine to
sustain good-paying jobs and to generate essential tax revenue
for government services. The ongoing efforts by this
administration to restrict coal production in Montana have far-
reaching consequences that extend beyond energy access for our
state, the nation, and the world.
In 2023, coal royalties for Montana State Trust lands
contributed $46 million to our public schools. Losing these
funds would lead to severe shortages and force difficult
decisions that can compromise high-quality education that our
children receive.
Moreover, this bill is essential for addressing the
economic hardships facing the Crow Tribe. It is not just a land
swap; it is a lifeline that assures the future of the Crow
Tribe, supports Montana's children, and strengthens our
national security.
I urge my colleagues across the aisle to carefully weigh
these significant implications before opposing this legislation
simply because of its connection to coal. This bill is about
much more than coal. It is about protecting America's interests
and preserving the Western way of life in Montana.
Chairman White Clay, thank you so much for being here
today. It is great to see you again. Could you please comment
on the Ranking Member's comments that the Crow will not share
in any of these coal royalties?
Mr. White Clay. Yes, those statements are completely false.
The Crow Tribe will benefit in the realm of, I want to say, an
estimated $100 million to the Crow Tribe, $10 million for 10
years. And that would significantly help with the Crow Tribe,
seeing as we had a 90 percent reduction in our revenue to the
Crow Tribe from the Absaloka Mine.
Mr. Rosendale. Thank you so much.
Now, $100 million may not mean much in this city because
they spend billions. But I can tell you something. In the state
of Montana, $100 million is a lot. Our entire annual budget for
the state is $7 billion, roughly, $7 billion for the entire
state. Ten million dollars a year for 10 years to the Crow
Agency is a large amount.
Chairman Clay, in your testimony, you discussed the
economic challenges faced by your tribe. Could you explain the
Do Not Pay list process and its impact on your tribe's economic
standing?
Mr. White Clay. Yes, thank you.
The Crow Tribe was unjustly put on a Do Not Pay list, which
is a punitive action that was not made for tribes, and it
restricts the Crow Tribe from receiving any Federal grants,
funds, or awards from the Federal Government. And we were put
on there for the last 4 years, and we currently are off now.
Mr. Rosendale. Thank you so much.
Mr. Johnson's testimony describes coal as a declining
industry, suggesting it is unreliable for funding essential
services and infrastructure, disregarding the fact that the
Biden administration and radical environmentalists are
regulating coal out of business, not natural market conditions.
With that perspective in mind, how does your tribe plan to use
the increased funds from this legislation?
Mr. White Clay. The increased funds from this legislation
will go to fund everything from the Crow Tribe, from social
services, the MMIW is ground zero. My reservation is ground
zero in the MMIW. We had 78 search and rescues this year alone
for missing murdered Indigenous, and it funds everything from
social programs to the elderly funds to just about everything
on the Crow Reservation. We had to do that because we did not
receive any Federal grants or awards in my administration.
Mr. Rosendale. Thank you so much.
Mr. Johnson, thank you for being here. Please share my
greetings to Anne Hedges. I haven't seen her in quite some
time, and we did a lot of work in the State Legislature.
You have referenced the potential for a boom-and-bust
scenario resulting from this legislation. Are you suggesting
that the Crow Tribe is incapable of responsibly managing its
finances and preparing for future economic changes?
Mr. Johnson. Representative, no, and we fully support the
tribe pursuing funding. However, part of the reason that we are
here today is because of what happened on the reservation
recently in which the Absaloka Mine shut down, and it lost its
only customer, the Sherburne Generating Station in Minnesota.
And that was a significant shortfall for the tribal budget.
Now, that is just indicative of a much larger issue across
the United States. Over the past----
Mr. Rosendale. Mr. Johnson, I have to reclaim my time
because it actually is gone, and now I have to yield back to
the Chairman. But I appreciate that you believe that the tribe
should be able to manage their own affairs.
And Mr. Chair, as you could see, the Chairman was actually
disagreeing with some of those statements. So, someone may want
to inquire as to what he was referring to.
Dr. Wittman. Yes. I thank the gentleman from Montana. We
appreciate that. And if we can come around to a second round of
questions, we are glad to go ahead and reintroduce that topic.
I now turn to the gentleman from California, Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chairman, and there certainly
is some good work here today that we are able to discuss in a
bipartisan way. I am sorry to see, however, that we are
entertaining H.R. 8952, which I do not think is a good piece of
legislation. It strikes me as more of a handout to industry
that would come at the expense of the American public and our
natural resources, so I wanted to dedicate my time mostly to
that bill.
The Signal Peak coal mine, of course, is at the heart of
the proposed land swap here. The company claims that, without
access to Federal coal in the Bull Mountain tracts, the public
lands would be traded to private landowners, that Signal Peak
may be forced to close the Bull Mountain coal mine.
Mr. Johnson, I just want to ask you. Signal Peak currently
holds the Federal leases for that coal. Can you please explain
why the company would be willing to give up those leases for
this land swap to go forward? What is in it for them?
Mr. Johnson. Representative, it involves their end run
around our environmental processes. Right now, there is a court
order that says that the U.S. Office of Surface Mining did not
do its job under its environmental analysis for the mine, and
that they need to go back and redo it. And that has significant
implications on the ground for people.
So, rather than addressing that and evaluating it through
that process, what this legislation would do is basically
remove that process entirely, and allow for the company to
proceed without those important considerations. And some of
those considerations are, what is the impact that this mine,
this coal, once it is mined and burned, where it is shipped to
Asia and burned, is going to have on our climate? What are the
implications for people who live on the ground, and ranch, and
have water sources that are directly impacted from the
subsidence associated with this mine?
I would love to see a NEPA analysis on the land transfer
issue, and the fact that we are taking close to 1,000 acres of
public lands and making them private in the Bull Mountains.
That is a big deal in Montana. And I suspect that a lot of
people would have something to say about that.
Mr. Huffman. Thank you, Mr. Johnson. I want to go to
Chairman White Clay.
Welcome, sir, to the Committee. It is an honor to have you
here. This legislation is called the Crow Revenue Act, and I
think many of us are interested in supporting our Indigenous
tribes, certainly in upholding sovereignty and in supporting
economic development in various ways, but there is some debate
about whether some of the promised revenues would actually
accrue to the tribe in this case.
And you laid out what sounded like a pretty clear at least
expectation of revenue sharing. Do you have a binding agreement
or an instrument of some kind that you have executed with the
family?
Mr. White Clay. Yes, we do.
Mr. Huffman. Is there any reason that can't be codified
into this bill? Because right now, as we read the bill, there
is nothing binding at all in the legislation.
Mr. White Clay. Yes, they are working on a technical
amendment. The Senate is working on a markup. But also, I think
that plays into an action of sovereignty on the Crow Tribe's
part, where we, as a sovereign nation, can come in and we are
competent as a nation to come into agreements with other
entities.
Mr. Huffman. But without compromising your sovereignty, if
we could codify the commitment for the Hope family, that would
be a way of guaranteeing that this revenue would go to you. Why
not just put that in the legislation so that we cannot debate
this, and no one needs to speculate that you are going to be
left high and dry here?
Mr. White Clay. OK. Yes, like I said, there is a technical
amendment that is coming forth in the markup on this, and we do
have a binding agreement with the Hope family.
Mr. White Clay. OK. Well, I hope maybe there can be some
continued effort in that regard.
Mr. Johnson, I want to go back to the environmental
impacts. I don't have a lot of time, but the Ranking Member
described some of the ways in which Signal Peak has not always
been a good actor. And if we are simply trusting them to move
forward in a thoughtful and environmentally responsible way
without any environmental review, why is that a problem? And
why are ranchers and local communities in the area so concerned
about environmental impacts of this mine expansion?
Mr. Johnson. Representative, this particular mine has lost
its social license to operate. Bribery, lying to regulators,
the list goes on. It has been profiled. They are currently on
criminal probation, and they just can't be trusted.
Mr. Huffman. All right, thank you.
I yield back.
Dr. Wittman. I thank the gentleman from California. We will
now go to the gentleman from Georgia, Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman. As I sit here and
listen, I think back to the hearings that I have been involved
with during the 118th Congress.
Being in the private sector my entire life, this being my
first venture into public service, I think what comes to mind
as you talk, Mr. Johnson, is the EPA, people don't trust them.
There is a lack of trust because of a lot of what you sit there
and espouse, especially sitting next to a guy that, it is his
deal. It is the Crow Nation. It is not you. But you find that
you need to interject into it to espouse the environmentalist
problems or whatever you see.
What I see from a private sector person, and what I see
from the motoring public out there is an EPA that drags their
feet, that has every environmentalist out there sue-crazy to
try to stop every project just because they don't want to see
something go forward. In this case, a mining operation that is
probably very much needed, and these people could use the
money, and they are the ones that are affected by it, both
economically, financially, everything. But yet, here you come
along to poke your nose into it because you know more than the
rest of us, probably the rest of us in this room.
And then I look down the line there, and you have Ms.
Lombard there, great work, because what I see from the hearings
I have been involved with is, sure, we have a problem out
there. What are we down to, three smelters in this country? And
80 percent of the minerals that we produce in this country,
what do we do with it? We ship it to China so that they can
process it in those great green factories they have over there,
probably the ones you like. And then they ship it back to us at
an extra expense when we could be doing that here ourselves,
and the American people could be making that money. By God,
that is what we call America first, and that is what we showed
the world on November 5. It is time to get back to America
first.
Ms. Lombard, I loved what you have here, 100 percent of 15
of the most 50 critically listed individual minerals are coming
out of China, not even produced here because we have a guy over
here who says if we have a burning problem somebody is going to
be in trouble. My dad always said if a frog had wings, he
wouldn't bump his butt.
Dr. Williams, in recent weeks we have seen the Chinese
Government introduce export controls on dual use critical
minerals. Even as the United States consumes these minerals at
increasing rates, aside from the bills being discussed today,
what measures need to be implemented to ensure America remains
competitive with China in developing our critical minerals?
Dr. Williams. Thank you for the question. I do have to
preface my answer with the fact that we are a scientific
agency. We support policy decisions, but we don't recommend
policy ourselves.
However, there are a variety of things, many choices that
the United States and its friendly partners can do with respect
to critical minerals. There are, of course, the options of
producing more, mining more, whether with a close trading
partner or within the United States. There are technologies
that are being investigated and developed to substitute for the
critical minerals in certain applications or to reduce the
amount that are required. And, of course, looking at options
for increasing the reprocessing or recycling.
There are a wide range of options out there, and we work
with other Federal agencies, of course, state geological
surveys and partners, to better understand what is involved in
those.
Mr. Collins. We have seen stacks of recycled material. They
don't know how to recycle this stuff. They don't even have a
process. But I appreciate it. I hate to sound negative, but I
want to switch gears with Mr. Travis, just because I don't have
but 45 seconds.
Can you discuss the negative effects on public trust when
decisions are not made on the merits, but instead determined by
default due to procedural failures?
Mr. Travis. Yes, I mean, I am an American taxpayer. And
when I look at it, you look at a government agency that just
does whatever they want. You have no way out. You have to sit
there for 3 years. You finally get to district court, and they
have set the playing field. You don't even get to present your
own facts. So, I think any process like that, everybody should
get to go to court and have a fair shake.
Mr. Collins. Much better said than what I said. Thank you.
With that, Mr. Chairman, I am going to yield back.
Dr. Wittman. I thank the gentleman from Georgia. We will
now go to Ms. Houlahan from the great state of Pennsylvania,
Commonwealth of Pennsylvania, excuse me.
Ms. Houlahan. The great Commonwealth of Pennsylvania, yes.
Dr. Wittman. I have to remember that. There are four
commonwealths, and Pennsylvania and Virginia are two of them.
Ms. Houlahan. That is right.
Dr. Wittman. Yes.
Ms. Houlahan. That is right. Rhode Island and Puerto Rico
are the third and fourth.
Thank you very much for the chance to talk to you. I am
waiving on to this Committee for the day to talk about some
stuff that is really relevant to all of us: critical minerals,
critical minerals security, and how we can be more dominant in
the control of this, and understanding where our role is to
make our nation stronger and safer.
And specifically with this Mineral Securities Act, it
focuses on international data and on collecting that about
critical minerals. And it will be, I believe, crucial to making
sure that we understand how to better onshore critical supply
chains and pier shore, near shore, all of those things that we
talk about.
Given the urgency of these challenges, which is absolutely
urgent, and developing domestic capacity for processing, not
just processing things that we mine, but also processing the
recycling, to the gentleman's point, what kind of things could
the Federal Government, Federal policy do to help overcome
these challenges?
And I am going to telepath to you permitting reform. Ms.
Lombard, could you answer that question for me?
Ms. Lombard. Thank you, Congresswoman, and for your
leadership on minerals and also on permitting. Thank you for
that question.
NEPA and its process is extremely important. And in terms
of permitting, it is slightly misunderstood. For minerals, it
is an important process. It just takes a very, very long time.
And I think what we need to have is certainty. We have had a
bunch of uncertainty, whether it is from administration to
administration changing rules, and I think, with recent Supreme
Court actions, it is time for Congress to really speak on that.
And I think, leading with the critical minerals and the
importance of onshoring, bringing back minerals, but we are
already onshoring many manufacturing on top of the different
energy supplies that we need to do. So, we need to look at ways
to improve our processes and still respect the environment in
terms of doing that. And we can do that.
And I believe, going back to whether it is your
legislation, but as well as the bill I am here to testify on,
it is important for us on the task force to look at these. We
want to protect the environment. We want to also speed up how
we can get certain projects through. Those that have already
gone through environmental review, those that are on disturbed
land, we have to have a way that we can streamline how we do
permitting and get projects that we need to be done faster.
Ms. Houlahan. I would concur, and I think that there is a
possibility and an appetite in the lame duck where we are
sitting right now for there to be actual movement, bipartisan
and bicameral movement, on permitting form and transmission
reform as well. Manchin and Barrasso have one, I think, really
good set of ideas on that and specific to this conversation on
critical minerals. What kind of specific permitting or
regulatory reform would affect this particular part of our
issue with trying to be more independent and also safer for our
planet?
Ms. Lombard. Thank you for that question. Just to clarify,
are you talking specifically about the minerals?
Ms. Houlahan. Yes.
Ms. Lombard. OK. In terms of the Manchin-Barrasso, the EPRA
bill, it is doing a few things.
It is, first, as you mentioned, on transmission, it is
clearing the way for potentially ways to have transmission
built faster. Now, minerals are very important to transmission,
so we have that.
And then we also have, in terms of judicial review, it is
putting certain timelines in there so we can speed the process
along.
I would say parallel to that, here on the House side, we
have had the Fix Our Forests bill, which is now moving, and
moving over to the Senate. It has some interesting components
in it, as well, in terms of judicial reform.
So, I think the blueprints are there. But specifically for
critical minerals, I think the judicial review side is what is
most important that is currently in the bill.
Ms. Houlahan. With what remains of my time, I kind of want
to foot-stomp on the importance of trying to take advantage of
this lame duck to try to move forward on some things that I
think we can all agree on. And the importance of this
particular opportunity is, I think, a real thing to make sure
that we are talking about, and talking about as loudly as we
can. If people are hearing me over on the Senate side, and I am
hoping that people are hearing me on the House side, I think we
have an opportunity here.
But importantly for my side of the aisle, as well, I want
to make sure that we talk as well about IRA and IIJA, because
it is important that there be infrastructure, as well, for any
sort of mining that we do, any sort of opportunity for
transmission or permitting reform. It doesn't help if you don't
have the roadways, bridges, tunnels, broadband, all of those
kinds of things. Can you comment with what remains of my time
on that, as well as what is helpful in this particular
conversation?
Ms. Lombard. Thank you, Congresswoman. In my comments, I
talked about the energy demands and, not only onshoring, but
our advanced manufacturing, large scale manufacturing, and
mining. All of this requires quite a bit of electricity. And in
terms of meeting our current needs and our future needs, we
need to address all of those.
Ms. Houlahan. Thank you. I have run out of time.
I appreciate the time and chance to waive on. Thank you, I
yield back.
Dr. Wittman. I thank the gentlewoman from Pennsylvania. We
will now go to the gentlewoman from Wyoming, Ms. Hageman.
Ms. Hageman. Thank you.
Mr. Travis, listening to you talk about the IBLA, and the
information that I have practicing in that area reminds me of
the book by Franz Kafka, The Trial. You just never know when
you are going to be able to make it through the leviathan of
that process that is there.
Mr. White Clay, I am looking forward to the excitement of
the development that you are looking at. Coal is the energy of
the future, and I think that this is a fabulous opportunity for
your tribe. I want to thank Mr. Zinke for the work that he has
done on that important bill for your tribe and your tribal
members.
Mr. Travis, thank you so much for being here and for being
so supportive of this important legislation. I know that you
have had to work with a lot of people whose cases have been
stuck in front of the IBLA at their expense, and I appreciate
the good work you have been doing on this, and we are grateful
to have you here today.
Have your clients had to pay significant legal fees while
they wait for their cases to be taken up?
And what have you observed regarding the personal and
financial cost of the IBLA's broken process?
Mr. Travis. Yes. Thank you, Congresswoman. Legal fees are
expensive, especially when you are talking about a minimum of 3
years that you are before the IBLA, before can you get out to
district court. So, yes, the legal fees are hundreds of
thousands, if not millions, of dollars. And folks are just
stuck in that process.
Ms. Hageman. There is no consequence, no accountability
from the agency itself for forcing people into that kind of a
never-ending doom loop, is there?
Mr. Travis. No, and we have actually gotten documentation
from the agency that that is one of their strategies. The
agency will say, let's just get this, let's make a decision
because we know when they get to IBLA it will be stuck there
for 3 years and they won't get a decision. So, agencies use
that.
Ms. Hageman. Wow, what a broken process. What an absolute
broken process, and so contrary to our form of government.
The IBLA claims to resolve a significant number of cases
each year, about 270, which would be about 22 cases per month.
But is the IBLA misleading people regarding these claims? And
if so, how are they doing that?
Mr. Travis. Yes, I think there is a distinction to be made
there between resolving claims and deciding claims on the
merits. As I mentioned, IBLA has over 600 cases before it. They
decided just 36 on merits. So, if they were to decide all the
cases on the merits, we are looking at about 20 years to get
out of that process.
The cases that you mentioned that they decide, that 200
number, are on technicalities, on things like not filing in
time, not paying a fee in time, things like that, not on the
actual merits of a case.
Ms. Hageman. So, it sounds like we have a lot of problems
with the IBLA, and my bill is to address some of them
specifically related to the time constraint. Are there other
ways in which we need to try to fix the IBLA if it is actually
going to be a functioning adjudicatory body?
Mr. Travis. Yes, I think any time you have a body that is
statutorily constructed instead of through the normal legal
process, you are going to have problems. Essentially you are
hoping that an agency created by the government is going to
rule fairly between the government and another party. So, I do
think broad reform is needed there across the board.
Ms. Hageman. My experience has been with ALJs, as well. And
the SEC and FTC are two agencies that are very abusive in terms
of using ALJs. I think that they have a 95 percent-plus success
rate in front of their independent ALJs, while maybe a 60 to 65
percent success rate in front of an Article III court.
And I think you really just hit the nail on the head.
Sometimes we look at reform and we think that we can fix this,
but the reality is that these supposedly intentionally
independent agencies or appellate adjudicatory bodies are
actually extremely biased towards the agency that they
allegedly oversee. Isn't that true?
Mr. Travis. Yes, I think so, and I think we see that not
just in Federal Government, but in state government as well. I
mean, I can tell you my experience in practicing in other
states is between, before an ALJ you are likely to lose 90-plus
percent of the time.
Ms. Hageman. That is right.
Mr. Travis. When you actually get to court, if you get a
fair shake, a de novo review, your odds are 50/50.
Ms. Hageman. So, just going back to the brass tacks of what
that means is that the IBLA and these ALJs really are a
violation of the fundamental constitutional right to due
process because you are not getting due process. You are having
to take your appeal to the very agency that made the decision
in the first place.
And I think that this speaks to a broader issue in terms of
regulatory reform across the board, which is getting quite a
bit of airplay since the election. But the reality is that we
have stacked the deck against the citizens and businesses of
this country, and we have stacked it in favor of a Federal
Government that is too powerful, too big, too expensive, too
much willing to go into debt, and too ready to do the kind of
deficit spending that we have seen over the last 20 years
especially.
So, I think this is an important discussion. This bill is
an important first start. Thank you for being here to testify
on it.
With that, I yield back.
Dr. Wittman. I thank the gentlewoman from Wyoming. We will
now go to the gentleman from Rhode Island, Mr. Magaziner.
Mr. Magaziner. Thank you, Chairman.
Critical minerals are essential for our economy and are
increasingly found in everything from mobile phones to medical
equipment. And thanks to the Chips and Science Act and the
Inflation Reduction Act passed by Congressional Democrats, we
are manufacturing more in America again, which means that our
need for access to critical minerals is only increasing.
New factory construction is growing at a faster rate than
probably at any time in my lifetime in the United States. We
are bringing back semiconductor manufacturing. We are building
windmills. We are doing all sorts of things that require access
to critical minerals. And as this country continues to expand
jobs and advance technologies and manufacturing, we need access
to a reliable and sustainable supply of these minerals. But at
the same time, where they come from and how they are produced
does matter. And without proper planning and monitoring and
oversight, production of critical minerals can become dominated
by foreign nations who are adversarial to the United States, or
by companies operating in the United States that do not have
adequate concern for environmental impact, labor standards, and
the like.
So, we have to figure out a better way to work together to
improve our critical mineral supply chain and increase
production, but do it in a way that is sustainable and fair and
minimizes negative impacts.
Dr. Williams, I will ask you first. Recently, a number of
voluntary mining standards have been adopted by mining
associations in countries like Canada, Australia, Argentina,
and a number of the international associations, as well. These
standards set goals regarding water use, greenhouse gas
emissions, community development, health and safety on the
workplace. And they allow customers and end users to know that
their minerals in their products were mined sustainably.
There has been talk about a single International
Consolidated Mining Standard initiative. Can you just talk,
from your point of view, your agency's point of view, the
usefulness of some sort of an international standard to track,
monitor, and set targets around sustainability in mining?
Dr. Williams. Thank you for the question.
Within the minerals commodity world, we work a lot with
international standards or relatively compatible national
standards that come to address questions about mineral
resources and reserves, the reporting that is required about
what material you have in a mine and how much material there
is. And those are professional statements that are reported for
publicly-traded companies, for example, so that the people who
are working on whether it is USGS understanding the global
resource picture or individual investors in the marketplace
know there is a certain reliability on that information.
And from that perspective, as these other aspects become
more important in the broader community, whether it is
environmental aspects, community engagement, protections for
workers and worker safety, if there are consistent reporting
procedures and compliance procedures across countries, however
that is implemented, we don't have a perspective on the actual
details, but I think it would assist the market as a whole and
the community as a whole.
Mr. Magaziner. Yes, I think it is very important that there
be reputable third-party actors, whether they are associations
or government organizations that are actually doing the
monitoring and overseeing the reporting of data because if
everyone is kind of reporting their own data however they want,
it is very hard to get accurate apples-to-apples comparisons.
And I would love for us to do more to make the data available
to end users, as well, so that I know, when I go to buy my next
phone, what is in it and where it comes from.
Ms. Lombard, I am curious for your perspective on the same
thing, as well. How do we strengthen and sort of tighten up
reporting requirements and standards across the mining
industry?
Ms. Lombard. Thank you, Congressman, for that question. I
recently moved, well, a year ago, from Arizona, where I work
very closely, I am bringing TSMC to Arizona. So, I know as a
state we are very excited about the reshoring of chip
manufacturing in the United States and that partnership.
Specific to your question, that is why I am excited to be
here in support of the Intergovernmental Critical Minerals Task
Force. It goes to some of your question about how the Committee
itself or the task force can, and I will quote from it, ``make
recommendations to secure United States and global supply
chains for critical minerals.''
And going to your question about global supply chains, we
can make those recommendations, or the Committee can make those
recommendations so that we can identify where these minerals
are coming from and so forth. And also potentially looking at
those environmental standards.
Mr. Magaziner. Thank you. I am out of time, so I will yield
back.
Dr. Wittman. I thank the gentleman from Rhode Island. I now
recognize the gentleman from Montana, Mr. Zinke.
Mr. Zinke. Thank you, Mr. Chairman. I guess the first
question goes to Mr. Johnson.
Mr. Johnson, I am just reading your bio. Your bio states
you are a policy advocate, attorney, lobbyist, and works to
address the climate crisis by holding the fossil fuel industry
accountable and to transition the energy system to cleaner
sources. Is that correct?
Mr. Johnson. Representative, it should be. Yes, absolutely.
Mr. Zinke. OK. And also, you hold a certificate from the
Natural Resources Conflict Resolution from the Center of
Natural Resources and Environmental Policy. You hold a
certificate?
Mr. Johnson. Yes.
Mr. Zinke. Do you hold a degree in any science, any field
of science?
Mr. Johnson. Representative I work with a lot----
Mr. Zinke. Yes or no, do you hold a degree in any field in
science?
Mr. Johnson. No.
Mr. Zinke. OK. Thank you very much. Have you done any work
in treaties, particularly Indian treaties? Because you are an
attorney, you are a member of the bar in good standing. Have
you done any work in treaties?
Mr. Johnson. I have done some work with treaties, and I am
a little bit familiar with them. But I wouldn't consider myself
an expert.
Mr. Zinke. Are you familiar with Crow treaties?
Mr. Johnson. No, I am not.
Mr. Zinke. Well, actually there are two, Mr. Chairman, I
would like to bring to the attention of the Committee. There
are 1851 and 1868, and the preamble is to provide for the Crow
people sufficient lands to continue their way of life. The
document is signed by the U.S. Government and the Indian
Nation. And there is a question of sovereignty.
So, I am amazed during the hearing here that the efficacy,
the integrity of Signal Peak somehow is relevant to this
discussion. I contend it is not. They are a sovereign nation.
If they wanted to make a deal with Disneyland, they have that
right as a sovereign nation.
Mr. Chairman, I would ask you, do you also hold the same
opinion?
Mr. White Clay. Yes, I do. Thank you.
Mr. Zinke. Mr. Johnson, have you ever taken a tour of Bull
Mountain?
Mr. Johnson. Representative, I have never been invited.
Mr. Zinke. Because in your testimony, you said the elk were
sensitive to Bull Mountain. I know you don't have a degree in
science, but how would that be, since Bull Mountain is an
underground mine about 800 feet below the surface?
Mr. Johnson. Representative, I would encourage you to just
take a look at my testimony. It wasn't that the elk are
sensitive to the underground mine; it was that people enjoy
hunting elk in Montana, in particular on our public lands, and
this particular legislation would take public lands, close to
1,000 acres that people do hunt elk on, I know people that go
up there and do it, and privatize them. And that is the major
concern associated with this legislation is the privatization
of the public lands and the Bull Mountains.
In terms of the Crow sovereignty----
Mr. Zinke. Let me ask you this. The privatization, they are
mostly from mineral rights, right? Subsurface mineral rights.
Is that true, Mr. Chairman? Can I ask you that?
Mr. White Clay. Yes.
Mr. Zinke. So, subsurface mineral rights at 800 feet, how
does that affect surface hunting and fishing? Just out of
curiosity.
Mr. Chairman, I would like you to answer that. Does it
affect surface hunting, fishing, and on the reservation, sir?
Mr. White Clay. No, it does not.
Mr. Zinke. Mr. Chairman, I yield back.
Dr. Wittman. I thank the gentleman from Montana. We will
now go to the gentlewoman from California, Ms. Kamlager-Dove.
Ms. Kamlager-Dove. Thank you, Mr. Chair. And thank you to
all of the witnesses for being here today.
I fully respect the Crow Tribe's need for new sources of
revenue, and firmly believe we can and should do more to help
communities across the country, especially tribal communities
that are losing revenue from the decline of certain resources
like coal. However, I am concerned that this bill, as written,
does not deliver on its sponsor's promises.
We have heard that the Crow Tribe will share in revenue
from the Bull Mountain tracts, that is, from Signal Peak's
mine, once the land swap goes through. However, as written, the
bill instead calls for the Hope family, the private landowners
who would relinquish their mineral rights to the tribe, to
share in revenues from any future development of the tribally-
owned coal.
We have heard that a technical fix is a comin', so the Crow
Tribe will indeed share in revenues from the Bull Mountain Mine
when the technical fix comes. Even if that happens, I actually
remain skeptical that this bill will generate revenue for the
tribe.
And while I respect Chairman White Clay's negotiations for
the tribe, we are talking about trading public lands and
revenues, and I would be more comfortable with legislative
guarantees.
So, Mr. Johnson, does this bill, as written, guarantee
revenue sharing? And if so, how?
Mr. Johnson. Representative, it does not. And I want to be
clear here. The land exchange that is currently occurring on
the Crow Tribe is a wonderful thing, and they should take
possession of those lands. The problem is the public lands that
will be given away in the Bull Mountains, close to 1,000 acres,
both mineral and surface, about 4,000 mineral acres and 1,000
surface acres of lands in the Bull Mountains.
Now, the way that the revenue sharing agreement is
currently written, it states that the Crow Tribe would share in
revenue from the Hope family tracks. Those are the coal
resources that are located on the Crow Reservation. How it
should probably read is that they would share in the Signal
Peak tracts, the revenue sharing agreement, and that would
allow for potentially some revenue to go to the tribe. However,
as we have already sort of heard today----
Ms. Kamlager-Dove. But you said potentially, so that is not
guaranteed.
Mr. Johnson. That is correct, Representative. And that is
because, as written, the revenue sharing agreement is not a
condition of the lands transfer. There is no requirement that
the negotiations occur in good faith. There is no requirement
that revenue actually be part of this legislation. And that is
one of our major concerns here, is we don't actually know
whether this is going to occur. There is no agreement that has
been made public that the American public can see to determine
whether or not this is actually a good deal.
And the impacts are really enormous in terms of this mine:
water quality impacts, transfer of public lands. So, in the sum
of all those things, and without that revenue sharing agreement
information, we are opposed to this legislation.
Ms. Kamlager-Dove. Mr. Johnson, what I heard you say, and
please correct me if I have misheard, there is no requirement
of revenue sharing, there is no guarantee of revenue sharing,
and there is also no transparency that revenue sharing would
happen and how it would happen. No transparency for either the
Crow Tribe or for the public. Is that correct?
Mr. Johnson. Representative, that is correct. The
legislation will pass, and if at some point in time in the
future a revenue sharing agreement is entered into, the only
requirement in this bill is that it be sent to the Secretary to
basically be filed away. That is not confirmation that this is
actually a revenue sharing agreement. That is not transparency
for the American public.
We are talking about giving away public mineral resources
and public lands. What is the deal, and is it worth it? That is
the answer that needs to be opened up so that the public can
see.
Ms. Kamlager-Dove. Yes. So, you said, ``Is it worth it?''
Can you expand on some of the local impacts of the mine to the
environment so we have a better sense of if it is worth it?
Mr. Johnson. Representative, in Montana, cattle ranching is
a big deal. And in order to do that, you need access to water.
Water is incredibly critical. And this mine, through its
processes, has devastated the water supply in the Bull
Mountains. Because of the undermining that occurs, it basically
fractures and subsides the lands and de-waters the springs and
the wells that ranchers have depended upon for generations to
run their operations.
And if this mine proceeds with this agreement, that is what
we are going to have more of. It is going to be exacerbated, in
addition to the climate issues, in addition to the public land
transfer issues. This legislation is just a step too far.
Ms. Kamlager-Dove. Thank you for that.
Mr. Chair, I yield back.
Dr. Wittman. I thank the gentlewoman from California. We
will now go to the gentleman from Louisiana, Mr. Graves.
Mr. Graves of Louisiana. Thank you, Mr. Chairman. I
appreciate all of you being here today for the hearing.
I am sure many of you have seen the stores have jumped
straight from Thanksgiving into Christmas. So, apparently, we
are already in Christmas season here, and it reminds me that
here we are at Christmas season, and this is the first year or
the only year, hey, Santa Claus is real, I just want to be
clear, the only year that we have not had a lease sale for
offshore energy, OK? This is the only year since offshore
energy lease sales have taken place we have not had one. So,
what it does is it creates uncertainty in the energy sector for
what the future of energy production is going to be. It creates
uncertainty. You have issues where, when you create
uncertainty, it creates lack of investment.
But global demand for energy doesn't decrease just because
supply is decreasing. What happens is it gets filled by
different places. For example, there were studies that were
done that found that Russia this year alone is projected to
profit an additional $112 billion. Let me say that number
again: Russia will profit an additional $112 billion by filling
the global void with their energy. It is predicted or projected
that Iran last year alone profited an additional $53 billion,
that Venezuela last month increased their exports of energy by
65 percent.
Mr. Johnson, I know that in your testimony you cite ESG,
and you cite how European countries are using environmental and
social governance criteria to look at how they are getting
their energy sources, and I think sort of suggesting the United
States needs to put more scrutiny. But where I struggle is that
right now the European Union is importing somewhere, if I
recall, between 15 and 20 percent of their gas from Russia.
According to the National Energy Technology Labs, the United
States natural gas, LNG, exported to Europe has a 42 percent
lower emissions profile over its life.
So, I guess I am struggling when you are telling us to act
like Europe whenever Europe is acting like idiots. And let me
just put a face on it. If we had taken 1 year, 1 year of
Russian oil, excuse me, gas supplies to the European Union, 1
year, the year the Ukrainian war started, we would have reduced
global emissions, ready for the number, 218 million tons. So,
help me understand how that makes sense.
Mr. Johnson. Representative, I think that the main thing
that we need to be thinking about here is the opportunity that
we have with ESG, and in making sure that our supply chains are
actually something that can work for the American people and
for American manufacturing.
Mr. Graves of Louisiana. Fantastic. Let me go ahead and
stop you right there. Thank you, because you are making my next
point.
We are talking about supply chains. Great, great. Look at
that. I just found this poster sitting right here. Look at
that.
Mr. Johnson, this shows the critical minerals and where we
are bringing them in from. We have an administration that's
energy strategy, and I have said this over and over again,
their energy strategy is incompatible with the regulatory
agenda, it is incompatible with their critical minerals
strategy.
Mr. Chairman, I would like to include in the record,
because Mr. Johnson is citing the importance of making sure
that we have a supply chain that makes sense, and I would like
to think that U.S. objectives, in terms of making sense when
you think about ESG, if that is where we need to be going, this
is a 2024 report by the United States Department of Labor that
was prepared, obviously under the Biden administration, that
cites the list of goods produced by child and forced labor
around the globe. Pretty extensive.
And what this does is it goes through and it shows that
what we are doing is we are trading energy that could be
produced domestically, creating jobs, higher environmental
standards, appropriate labor standards and, I don't know,
economic activity in the United States, and we are trading it
for labor that is forced in child labor in other countries that
has lower environmental standards.
Do we care about global environmental standards, or are we
just going to sit here and put a blind eye and just bring in
energy from other countries when they go and trash the
environment? It doesn't make any sense from a global
perspective.
And I remind you, this year highest emissions ever. And
much of that is a result of the incredibly reckless,
irresponsible, and inexperienced energy strategy out of this
Administration. Out of this Administration. It really is
embarrassing to see folks sit here and come and advocate for
things that result in more economic activity in other
countries, a greater trade deficit, worse environmental
outcomes, and increasing energy unaffordability in the United
States.
I yield back.
Dr. Wittman. I thank the gentleman from Louisiana.
I would like to ask Dr. Williams, Ms. Lombard, and Mr.
Travis three questions. I would like for you to go in sequence
and just give me your perspective on this.
First, I recognize myself for 5 minutes.
[Laughter.]
Dr. Wittman. Do I recognize myself? Yes, I recognize you.
OK.
I would like to ask your perspective on this. I am going to
ask you a comparison question. I am going to ask you which
country does a better job in adhering to the rule of law, China
or the United States?
Dr. Williams?
Dr. Williams. Well, I am not a legal expert, but I think we
do a pretty good job here in the United States.
Dr. Wittman. Ms. Lombard?
Ms. Lombard. Thank you for the question. The United States.
Dr. Wittman. Mr. Travis?
Mr. Travis. The United States, as well.
Dr. Wittman. Next question: Which country does a better job
in protecting human rights, China or the United States?
Dr. Williams?
Dr. Williams. Well, again, I am a geoscientist, but I think
our common belief is that it is the United States.
Dr. Wittman. Ms. Lombard?
Ms. Lombard. The United States.
Dr. Wittman. Mr. Travis?
Mr. Travis. The United States.
Dr. Wittman. Very good. I would say that is a pretty even
comparison there, looking at what they do as far as the use of
child labor and forced labor.
Last question: Which country does a better job in
protecting the environment?
Dr. Williams, the United States or China?
Dr. Williams. I think it is clear the United States.
Dr. Wittman. Ms. Lombard?
Ms. Lombard. The United States.
Dr. Wittman. Mr. Travis?
Mr. Travis. The United States of America.
Dr. Wittman. Do you think today, as we speak, when we look
at the overall extraction and refinement of critical minerals
and rare earth elements, where we see around the world that
China has 70 percent of the extraction capability worldwide and
90 percent of the refining capability, and the United States is
overly reliant on China to not only purchase minerals but, by
the way, as we heard from Mr. Collins and now what we hear also
in recycling those materials, where we create a substance
called black mass, where we take out the other components
except the metals, and we say we are going to recycle that, and
where do we send the black mass? We send it to China so China
can refine it and do what? Sell it back to us.
Would you say, with the comparisons that we have just made,
with adherence to the rule of law, with the protection of human
rights, with the protection of the environment, that the United
States, if it continues to buy and rely on China for critical
minerals and rare earth elements, seems like to me that we are
supporting a country that doesn't adhere to the rule of law, we
are supporting a country that doesn't abide by human rights, we
are supporting the destruction of the environment?
Would I be correct in reaching that assumption with your
affirmative answers to those series of questions, Dr. Williams?
Dr. Williams. Certainly, those are all factors we have to
take into account when we look at our trade in mineral
commodities.
Dr. Wittman. Very good.
Ms. Lombard?
Ms. Lombard. I would agree with your statement. It is not
how the supply chain should work.
Dr. Wittman. Very good.
Mr. Travis?
Mr. Travis. I couldn't agree more, Mr. Chairman.
Dr. Wittman. Thank you. I will go too to Mr. Johnson and to
Chairman White Clay if you would like to reflect on the series
of questions there and your perspective on that.
Mr. Johnson. Thank you for the question, Representative.
I think it is important, and I do agree that we probably do
have some better environmental practices here in the United
States. But in my experience on the ground in Montana, we have
a long ways to go still. And I don't think that we should
necessarily excuse some of the issues that we see across the
world to do an OK job here.
I can point to places in Montana, just out my backyard,
where there are mines that are $20 million under bonded, so the
Montana taxpayers are going to have to pick the bill up, and
where a critical trout stream is about ready to turn into a
waterfall right into that particular mine. These are on-the-
ground impacts that shouldn't be happening, that we can fix,
and we can do it in a way that causes for leadership in the
United States to demonstrate that not only can we do it right,
but we can do it in a way that is competitive across the world.
Dr. Wittman. Yes, and the wherewithal is we have the will
and the ability to do it, versus China, which has no interest
in doing it. So, I would agree with your observation there.
Chairman White Clay?
Mr. White Clay. Yes, I agree with you, Chairman, that the
United States is a better choice for our critical minerals.
But as a casualty of the war on coal, I am a former coal
miner, and I have brothers and sisters in a union that mined
palladium in Montana that close to 300-plus jobs are right now
in jeopardy and another 400 jobs were lost this past year in
the palladium mine there. So, as a miner, we see the effects on
heavy regulations. And my whole tribe is a casualty of the war
on coal also.
Dr. Wittman. Yes.
Mr. White Clay. So, yes, I am for better standards, but
also at what cost?
Dr. Wittman. Very good.
I would like to thank our witnesses. Thank you so much for
spending your time with us today, for answering our questions,
giving us your perspective on things. Very, very helpful, as
this Committee considers the bills on the docket today. We
thank you.
And this Subcommittee allows the members of the
Subcommittee to have additional questions for the witnesses.
And if they do, we ask that you respond in writing to these
questions that may not have been submitted to you today orally.
Under Committee Rule 3, members of the Committee must submit
questions to the Committee Clerk by 5 p.m. on Friday, November
22. 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 4:05 p.m., the Subcommittee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Statement for the Record
U.S. Department of the Interior
H.R. 8952, Crow Revenue Act
Thank you for the opportunity to provide this Statement for the
Record on H.R. 8952, the Crow Revenue Act. H.R. 8952 involves the
conveyance of surface and H.R. 8952, Crow Revenue Actmineral estate in
Montana involving the Bureau of Land Management (BLM), the Crow Tribe
of Montana, and a private party. The bill requires, within 60 days of
enactment, the relinquishment of the Federal coal lease associated with
Signal Peak Energy's Bull Mountains Mine near Roundup, Montana; the
conveyance by the Joe and Barbara Hope Mineral Trust (Hope Family
Trust) of approximately 4,660 acres of private mineral estate located
within the boundaries of the Crow Indian Reservation in Bighorn County,
Montana, to the Crow Tribe of Montana; and the conveyance of
approximately 4,530 acres of mineral estate and approximately 940 acres
of surface estate managed by the BLM in Musselshell County, Montana
(the Bull Mountains Tracts), to the Hope Family Trust.
In addition, the bill states that the mineral estate conveyed by
the Hope Family Trust to the Crow Tribe shall not be subject to state
or local taxation and shall be held in trust by the United States for
the benefit of the Tribe, upon the Tribe's request. Finally, H.R. 8952
requires that the Crow Tribe notify the Secretary of the Interior when
the Tribe and the Hope Family Trust have agreed on a formula for
revenue sharing from development of the minerals conveyed to the Tribe,
should they be developed at a later date.
Analysis
Under President Biden's and Secretary Haaland's leadership, the
Department is committed to strengthening the government-to-government
relationship with Tribal Nations. We believe that Tribal sovereignty
and self-governance, as well as honoring the Federal trust and treaty
responsibility to Tribal Nations, must be the cornerstones of Federal
Indian policy. In addition, the Department is committed to managing
public lands and minerals to protect the treaty, trust, religious,
subsistence, and cultural interests of Federally recognized Tribes,
consistent with our mission and applicable Federal law. By placing
lands into trust status through the Department, Tribes are able to
reacquire lands within or near their reservations, establish a land
base, and clarify jurisdiction over their territories and lands
including mineral estates.
The Department supports the bill's goals of addressing inholdings
within the boundaries of the Crow Indian Reservation and providing an
additional source of revenue for the Crow Tribe. We would like to work
with the Sponsor on several modifications to improve the bill. First,
we recommend that the conveyances be subject to valid existing rights,
as is standard, to ensure that they do not inadvertently result in
Federal takings issues under the Fifth Amendment. In addition, we
suggest that language be added to the bill that expressly states that
the parcels to be conveyed are withdrawn from location, entry, and
patent under the U.S. mining laws as of the date of enactment.
Including a withdrawal provision for parcels will ensure that no new
mining claims are located between enactment and finalization of the
conveyances.
The Department also notes that it is unclear whether the Sponsor
intends for the required Federal coal lease relinquishment to be
consistent with the BLM's coal leasing regulations. For example, under
the lease provision referenced in section 3(a)(1) of the bill, the
lease relinquishment would be required to follow all applicable
regulations. This means that, if enacted, a lease relinquishment cannot
occur until the lessee has met all financial obligations associated
with the lease, all profitable portions of the leased coal deposit have
been mined, and all required reclamation has been completed
successfully, as determined by the BLM and the Montana Department of
Environmental Quality. As currently drafted, the BLM would be unable to
relinquish the lease as directed within the timeframe provided by the
bill.
We would like to work with the Sponsor to ensure that the parcels
to be conveyed under the bill are of equal value; to provide sufficient
time to comply with any applicable laws; and to ensure that public
access to nearby BLM-managed public lands is maintained after the
conveyance. The Department would also like to work with the Sponsor to
clarify the provision regarding revenue sharing between the Tribe and
the Hope Family Trust. As currently drafted, the bill does not appear
to specifically require that a revenue sharing agreement be developed.
In addition, as currently written, the revenue sharing agreement would
also cover the mineral estate conveyed to the Crow Tribe, not the
mineral estate conveyed to the Hope Family Trust. Our understanding is
that this is a drafting error and that the Sponsor intends for the
revenue sharing agreement to cover the mineral estate conveyed to the
Hope Family Trust. The Department recommends that the Sponsor amend the
bill to address these issues to provide certainty to the Crow Tribe.
We also recommend technical amendments to clarify various terms and
exempt the United States from any responsibility for future reclamation
efforts associated with the Bull Mountain Tracts, as they would be
conveyed into private ownership. The Department looks forward to
working with the Sponsor on such modifications as the bill moves
forward through Congress.
Conclusion
Thank you again for the opportunity to provide this Statement for
the Record.
______
Statement for the Record
U.S. Department of the Interior
H.R. 10005, the Expedited Appeals Review Act
Thank you for the opportunity to provide this Statement for the
Record on H.R. 10005, the Expedited Appeals Review Act.
Background
The Office of Hearings and Appeals (OHA) exercises the delegated
authority of the Secretary of the Interior to conduct hearings and
decide appeals of decisions of the bureaus and offices within the
Department of the Interior. The Interior Board of Land Appeals (the
Board) is an appellate review body within OHA, which operates
separately and independently from the bureaus and offices whose
decisions it reviews.
The Board provides an impartial forum for the resolution of
disputes involving public lands and natural resources under the
Department of the Interior's jurisdiction. This includes the use and
disposition of public lands and resources, the use and disposition of
resources of the Outer Continental Shelf, the authorization of
activities on the Outer Continental Shelf, the collection of energy and
mineral revenue from the Outer Continental Shelf and onshore federal
and Indian lands, and the conduct of surface coal mining under the
Surface Mining Control and Reclamation Act. Parties with appeals before
the Board, and Federal courts reviewing the Board's decisions, benefit
from the subject matter expertise the Board provides on those issues.
Appeals before the Board vary greatly by subject matter and in
complexity. The unique circumstances of each appeal determine when an
appeal is ready for review and final resolution. For example, the Board
may conclude an appeal quickly if it determines that it does not have
jurisdiction to decide the appeal. Other appeals may require months to
become ready for review as the parties file motions and briefs, seek
extensions, or engage in settlement negotiations. Some appeals remain
pending for a long time because they are suspended at the parties'
request.
Once an appeal becomes ready for review, it is assigned to a panel
of two administrative judges for adjudication. The panel, assisted by
the Board's limited staff, reviews the briefs and the administrative
record, conducts legal research, and prepares an order or decision
resolving the appeal. After all the administrative judges have an
opportunity to review the draft, the two-judge panel issues a final
order or decision resolving the appeal.
Other factors may also affect how long some appeals remain pending.
These factors include the large number of stay petitions filed before
the Board. Many appeals filed with the Board are accompanied by stay
petitions requesting that the Board stay the effect of a decision while
an appeal is pending. By regulation, the Board must rule on stay
petitions within 45 days, which requires the Board to devote
substantial time and resources to the resolution of those petitions. To
resolve these and other expedited matters quickly, the Board must
sometimes prioritize more recent appeals at the expense of those that
have been pending longer.
Decisions issued by the Board are final for the Department and may
be reviewed by the United States district courts.
H.R. 10005--the Expedited Appeals Review Act
H.R. 10005 would allow an appellant to file a notice of expedited
review of an appeal and then require the Board to issue a final
decision within 6 months of the notice or 18 months after the date of
the appeal, whichever is later. If the Board does not issue a final
decision by the deadline, the decision on appeal would be ``deemed to
be a final agency action for purposes of [the Administrative Procedure
Act (APA), 5 U.S.C. Sec. 704].'' The bill further directs that judicial
review of such decision will be de novo. H.R. 10005 specifies that the
bill would apply to all appeals, including those pending before the
Board as of the date of enactment.
The Department believes the bill is not necessary. The vast
majority of appellants before the Board already have the option to go
to Federal court after 45 days. If the Board stays the bureau or office
decision being challenged, the appellant must wait for a final Board
decision before going to Federal court (but gets relief from the bureau
or office decision in the meantime). If the Board does not grant a stay
within 45 days, the appellant may immediately seek relief in Federal
court from the decision. Ninety-three percent of decisions on appeal to
the Board are not stayed. Like other adjudicators, the Board considers
and grants motions to expedite individual appeals if there is good
cause to do so.
The Department notes that appellants who file a notice to expedite,
as provided under H.R. 10005, may unknowingly cut off their most cost-
effective opportunity for review, as proceedings before the Board
generally cost less than litigation in Federal court and are easier for
unrepresented litigants to navigate. Approximately twenty-three percent
of appellants before the Board do not have legal counsel and may be
impacted by this potentially unintended consequence. The Department
also notes that appellants who file notices to expedite may move their
appeals ahead of the oldest pending appeals, lengthening the time for
other appellants awaiting decisions. In cases for appeals where an
expedited resolution is requested, the Board would continue to decide
appeals as expeditiously as possible using current resources, but may
be unable to meet the deadlines.
In addition, H.R. 10005 conflicts with other statutes. H.R. 10005
provides for the Federal courts to review Departmental decisions de
novo. In contrast, the Administrative Procedure Act, 5 U.S.C.
Sec. Sec. 704 and 706(2)(A), provides for judicial review to ensure
that agency action is not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
Finally, H.R. 10005 also conflicts with 30 U.S.C. Sec. 1724(h)(2),
which provides 33 months for the Department to issue a final decision
in a royalty appeal, as well as 30 U.S.C. Sec. 1275(b), which provides
30 days for the Department to issue a decision on an order for
cessation of surface coal mining and reclamation operations.
Conclusion
The Board is committed to addressing its appeal backlog as
expeditiously as possible. OHA and the Board have worked diligently to
strengthen the hearing and appeal processes and will continue to
modernize and make improvements.
Thank you again for the opportunity to provide this statement for
the record on H.R. 10005.
______
Submissions for the Record by Rep. Graves
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https://docs.house.gov/meetings/II/II06/20241119/117714/HHRG-
118-II06-20241119-SD005.pdf
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