[House Report 118-416]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-416
======================================================================
MINING REGULATORY CLARITY ACT OF 2024
_______
March 7, 2024.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Westerman, from the Committee on Natural Resources, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2925]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 2925) to amend the Omnibus Budget Reconciliation
Act of 1993 to provide for security of tenure for use of mining
claims for ancillary activities, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mining Regulatory Clarity Act of
2024''.
SEC. 2. USE OF MINING CLAIMS FOR ANCILLARY ACTIVITIES.
Section 10101 of the Omnibus Budget Reconciliation Act of 1993 (30
U.S.C. 28f) is amended by adding at the end the following:
``(e) Security of Tenure.--
``(1) Claimant rights.--
``(A) Definition of operations.--In this paragraph,
the term `operations' means--
``(i) with respect to a locatable mineral,
any activity or work carried out in connection
with--
``(I) prospecting;
``(II) exploration;
``(III) discovery and assessment;
``(IV) development;
``(V) extraction; or
``(VI) processing;
``(ii) the reclamation of an area disturbed
by an activity described in clause (i); and
``(iii) any activity reasonably incident to
an activity described in clause (i) or (ii),
regardless of whether that incidental activity
is carried out on a mining claim, including the
construction and maintenance of any road,
transmission line, pipeline, or any other
necessary infrastructure or means of access on
public land for a support facility.
``(B) Rights to use, occupation, and operations.--A
claimant shall have the right to use and occupy to
conduct operations on public land, with or without the
discovery of a valuable mineral deposit, if--
``(i) the claimant makes a timely payment
of--
``(I) the location fee required by
section 10102; and
``(II) the claim maintenance fee
required by subsection (a); or
``(ii) in the case of a claimant who
qualifies for a waiver of the claim maintenance
fee under subsection (d)--
``(I) the claimant makes a timely
payment of the location fee required by
section 10102; and
``(II) the claimant complies with the
required assessment work under the
general mining laws.
``(2) Fulfillment of federal land policy and management act
of 1976.--A claimant that fulfills the requirements of this
section and section 10102 shall be deemed to satisfy any
requirements under the Federal Land Policy and Management Act
of 1976 (43 U.S.C. 1701 et seq.) for the payment of fair market
value to the United States for the use of public land and
resources pursuant to the general mining laws.
``(3) Savings clause.--Nothing in this subsection--
``(A) diminishes any right (including a right of
entry, use, or occupancy) of a claimant;
``(B) creates or increases any right (including a
right of exploration, entry, use, or occupancy) of a
claimant on lands that are not open to location under
the general mining laws;
``(C) modifies any provision of law or any prior
administrative action withdrawing lands from location
or entry;
``(D) limits the right of the Federal Government to
regulate mining and mining-related activities
(including requiring claim validity examinations to
establish the discovery of a valuable mineral deposit)
in areas withdrawn from mining (including under--
``(i) the general mining laws;
``(ii) the Federal Land Policy and Management
Act of 1976 (43 U.S.C. 1701 et seq.);
``(iii) the Wilderness Act (16 U.S.C. 1131 et
seq.);
``(iv) sections 100731 through 100737 of
title 54, United States Code (commonly referred
to as the `Mining in the Parks Act');
``(v) the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.); or
``(vi) division A of subtitle III of title
54, United States Code (commonly referred to as
the `National Historic Preservation Act')); or
``(E) restores any right (including a right of entry,
use, or occupancy, or right to conduct operations) of a
claimant that existed prior to the date that the lands
were closed to or withdrawn from location under the
general mining laws and that has been extinguished by
such closure or withdrawal.''.
Purpose of the Legislation
The purpose of H.R. 2925 is to amend the Omnibus Budget
Reconciliation Act of 1993 to provide for security of tenure
for use of mining claims for ancillary activities, and for
other purposes.
Background and Need for Legislation
H.R. 2925 would codify and clarify longstanding precedent
regarding mining permitting on federal lands in response to a
recent decision from the United States Court of Appeals for the
Ninth Circuit, often referred to as the ``Rosemont decision.''
In May of 2022, the United States Court of Appeals for the
Ninth Circuit affirmed a lower court decision revoking an
approved mine plan for the Rosemont Copper Mine Project,
located partially in the Coronado National Forest in Pima
County, Arizona.\1\ The Center for Biological Diversity and
other environmental groups' challenge to the Rosemont mine plan
specifically concerned whether the Forest Service could approve
disposal of overburden (waste rock) without first determining
the validity of the mining claim that would be used.
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\1\Center for Biological Diversity, 33 F.4th 1202 (9th Cir. 2022).
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The Ninth Circuit's decision in this case limits the
ability of the U.S. Forest Service to approve mining support
facilities necessary for mining operations. The Rosemont
decision requires that U.S. Forest Service approvals of
ancillary facilities on mining claims be contingent on such
claims being ``valid.''\2\ This new requirement ignores
longstanding precedent and specific U.S. Forest Service
regulations that allow approvals of operations ``on or off a
mining claim'' so long as these operations meet environmental
and regulatory standards.\3\ Essentially, this decision
requires discovery and determination of a valid mineral
deposit, meaning operators must prove the existence of a
commercially developable deposit on a claim before a plan of
operations that includes usage of the surface of that mining
claim (such as for waste rock placements, mills, offices,
roads, or transmission lines) can be approved.
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\2\Id.
\3\36 CFR Subpart A--Subpart A--Locatable Minerals. https://
www.law.cornell.edu/cfr/text/36/part-228/subpart-A.
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The Rosemont decision upended 40 years of mining regulatory
precedent and over a century of interpretation of the Mining
Law of 1872.\4\ If allowed to stand, the Rosemont decision
would impact hardrock mining projects across Western states.
The mineral-rich states of Alaska, Arizona, Nevada, Montana,
and Idaho are located within the jurisdiction of the Ninth
Circuit.\5\
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\4\Sess. 2, ch. 152, 17 Stat. 91-96.
\5\United States Courts for the Ninth Circuit. Circuit Map. https:/
/www.ca9.uscourts.gov/information/circuit-map/.
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The Department of the Interior (DOI) published a
Solicitor's opinion on the issue in May of 2023, which allows
some disposal of waste rock in certain circumstances, but the
enactment of H.R. 2925 is needed to remedy the uncertainty
created by the Rosemont decision for all mines on federal lands
going forward.\6\ H.R. 2925 would restore the longstanding
interpretation of the Mining Law of 1872 and regulatory
requirements for mining approvals on federal lands and provide
much-needed certainty in response to the Rosemont decision.
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\6\U.S. Department of the Interior. Office of the Solicitor. Use of
Mining Claims for Mining Waste Deposition, and Recission of M-37012 and
M-37057. https://www.doi.gov/sites/doi.gov/files/m-37077-use-of-mining-
claims-for-mine-waste-deposition-508.pdf.
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Committee Action
H.R. 2925 was introduced on April 27, 2023, by Rep. Mark
Amodei (R-NV). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Energy and Mineral Resources. On January 31, 2024, the
Subcommittee on Energy and Mineral Resources held a hearing on
the bill. On February 6, 2024, the Committee on Natural
Resources met to consider the bill. The Subcommittee on Energy
and Mineral Resources was discharged from further consideration
of H.R. 2925 by unanimous consent. Representative Pete Stauber
(R-MN) offered an Amendment in the Nature of a Substitute
designated Stauber_043. Ranking Member Raul Grijalva (D-AZ)
offered a substitute amendment to the Amendment in the Nature
of a Substitute, designated Grijalva #1. The amendment was not
agreed to by a roll call vote of 16 yeas to 22 nays, as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Jared Huffman (D-CA) offered an amendment to
the Amendment in the Nature of a Substitute designated Huffman
#1. The amendment was not agreed to by a roll call vote of 17
yeas to 21 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Teresa Leger Fernandez (D-NM) offered an
amendment to the Amendment in the Nature of a Substitute
designated Leger Fernandez #1. The amendment was not agreed to
by a roll call vote of 18 yeas to 21 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Melanie Stansbury (D-NM) offered an
amendment to the Amendment in the Nature of a Substitute
designated Stansbury #1. The amendment was not agreed to by a
roll call vote of 17 yeas to 22 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ranking Member Raul Grijalva (D-AZ) offered an amendment to
the Amendment in the Nature of a Substitute, designated
Grijalva #2. The amendment was not agreed to by a roll call
vote of 18 yeas to 21 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ranking Member Raul Grijalva (D-AZ) offered an amendment to
the Amendment in the Nature of a Substitute, designated
Grijalva #3. The amendment was not agreed to by a roll call
vote of 19 yeas to 20 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ranking Member Raul Grijalva (D-AZ) offered an amendment to
the Amendment in the Nature of a Substitute, designated
Grijalva #11. The amendment was not agreed to by a roll call
vote of 18 yeas to 21 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ranking Member Raul Grijalva (D-AZ) offered an amendment to
the Amendment in the Nature of a Substitute, designated
Grijalva #31. The amendment was not agreed to by a roll call
vote of 19 yeas to 21 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Jared Huffman (D-CA) offered an amendment to
the Amendment in the Nature of a Substitute designated Huffman
#2. The amendment was not agreed to by a roll call vote of 17
yeas to 23 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Melanie Stansbury (D-NM) offered an
amendment to the Amendment in the Nature of a Substitute
designated Stansbury #2. The amendment was not agreed to by a
roll call vote of 18 yeas to 23 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Representative Seth Magaziner (D-RI) offered an amendment
to the Amendment in the Nature of a Substitute designated
Magaziner #12. The amendment was not agreed to by a roll call
vote of 17 yeas to 24 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Amendment in the Nature of a Substitute designated
Stauber_043 was agreed to by voice vote. The bill, as amended,
was ordered favorably reported to the House of Representatives
by roll call vote of 24 yeas to 17 nays, as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Hearings
For the purposes of clause 3(c)(6) of House rule XIII, the
following hearing was used to develop or consider this measure:
hearing by the Subcommittee on Energy and Mineral Resources
held on January 31, 2024.
Section-by-Section Analysis
Section 1. Short title
Section 1 establishes the short title of the bill as the
``Mining Regulatory Clarity Act of 2024.''
Section 2. Use of Mine claims for ancillary activities
Section 2 amends Section 10101 of the Omnibus Budget
Reconciliation Act of 1993 to allow mine operations to use,
occupy, and conduct operations (including construction of roads
and other mining infrastructure activity) on public land
regardless of whether a mineral deposit has been discovered on
the land so long as the claimant makes timely payments of
required claims maintenance fees.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII and Congressional
Budget Act
1. Cost of Legislation and the Congressional Budget Act.
With respect to the requirements of clause 3(c)(2) and (3) of
rule XIII of the Rules of the House of Representatives and
sections 308(a) and 402 of the Congressional Budget Act of
1974, the Committee has received the following estimate for the
bill from the Director of the Congressional Budget Office:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 2925 would expand the rights of hardrock mining
claimants on federal land. Under the bill, claimants would have
the right to use and occupy public land without having first
discovered a valuable mineral deposit so long as they make
timely payments of the required fees to stake and maintain
their claim. Under current law, some claimants can have those
fees waived, but the bill would not limit claimants mining
rights if they received such a waiver. H.R. 2925 also would
allow claimants to complete activities on unclaimed public land
if the activity is associated with mining operations on claimed
land.
Background: The General Mining Act of 1872 allows
individuals and commercial entities to prospect for hardrock
(or nonfuel) minerals, such as gold, silver, and copper, on
land in the public domain (primarily, federal land in western
states). When miners make a discovery, they can locate, or
stake, a claim, which gives them the right to mine, extract,
and process those materials.
Under current law, those individuals and entities must pay
an annual maintenance fee of $165 per claim (which is adjusted
over time to account for inflation) to the Department of the
Interior (DOI), unless those fees are waived. However, the
claimant is required to discover a physical exposure of the
mineral deposits within the claim boundaries to have valid
rights on that mineral. Without a discovery that solidifies
those mining rights, the claimant loses the mining claim if the
federal land is withdrawn from mining activities.
Federal costs: By removing the requirement to have first
discovered minerals on the land to receive mining rights, H.R.
2925 would allow claimants who have not yet discovered minerals
on the land to preserve their right to explore, discover, and
develop minerals if the land where their mining claim is
located is later withdrawn from being eligible for mining.
CBO is aware of two current proposals to withdraw federal
land from mining that would affect unsolidified mining claims:
3,700 acres in the Hassayampa River corridor in Arizona, and
221,000 acres in the Thompson Divide in Colorado. According to
DOI, those two areas have a total of about 1,100 unsolidified
mining claims.
Under H.R. 2925, if those areas are withdrawn from mining,
those unsolidified claims would remain active, and CBO expects
they would continue to pay annual maintenance fees. Currently,
those fees total about $200,000 a year. The receipts from those
fees are classified in the budget as discretionary offsetting
collections; that is, as a reduction in discretionary spending.
Spending of those collections is subject to annual
appropriation. Assuming appropriation of those future
collections, CBO estimates that the additional amounts
collected under the bill would be spent soon thereafter so that
the net effect on discretionary spending would be negligible.
The CBO staff contact for this estimate is Lilia Ledezma.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
2. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Omnibus Budget
Reconciliation Act of 1993 to provide for security of tenure
for use of mining claims for ancillary activities, and for
other purposes.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clauses 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Unfunded Mandates Reform Act Statement
According to the Congressional Budget Office, H.R. 2925
contains no unfunded mandates as defined in the Unfunded
Mandates Reform Act.
Existing Programs
Directed Rule Making. This bill does not contain any
directed rule makings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Preemption of State, Local or Tribal Law
Any preemptive effect of this bill over state, local, or
tribal law is intended to be consistent with the bill's
purposes and text and the Supremacy Clause of Article VI of the
U.S. Constitution.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
OMNIBUS BUDGET RECONCILIATION ACT OF 1993
* * * * * * *
TITLE X--NATURAL RESOURCE PROVISIONS
* * * * * * *
Subtitle B--Hardrock Mining Claim Maintenance Fee
SEC. 10101. FEE.
(a) Claim Maintenance Fee.--
(1) Lode mining claims, mill sites, and tunnel
sites.--The holder of each unpatented lode mining
claim, mill site, or tunnel site, located pursuant to
the mining laws of the United States before, on, or
after August 10, 1993, shall pay to the Secretary of
the Interior, on or before September 1 of each year, to
the extent provided in advance in appropriations Acts,
a claim maintenance fee of $100 per claim or site,
respectively. Such claim maintenance fee shall be in
lieu of the assessment work requirement contained in
the Mining Law of 1872 (30 U.S.C. 28-28e) and the
related filing requirements contained in section 314
(a) and (c) of the Federal Land Policy and Management
Act of 1976 (43 U.S.C. 1744 (a) and (c)).
(2) Placer mining claims.--The holder of each
unpatented placer mining claim located pursuant to the
mining laws of the United States before, on, or after
August 10, 1993, shall pay to the Secretary of the
Interior, on or before September 1 of each year, the
claim maintenance fee described in subsection (a)(1),
for each 20 acres of the placer claim or portion
thereof. Such claim maintenance fee shall be in lieu of
the assessment work requirement contained in the Mining
Law of 1872 (30 U.S.C. 28 to 28e) and the related
filing requirements contained in section 314(a) and (c)
of the Federal Land Policy and Management Act of 1976
(43 U.S.C. 1744(a) and (c)).
(b) Time of Payment.--The claim main tenance fee under
subsection (a) shall be paid for the year in which the location
is made, at the time the location notice is recorded with the
Bureau of Land Management. The location fee imposed under
section 10102 shall be payable not later than 90 days after the
date of location.
(c) Oil Shale Claims Subject to Claim Maintenance Fees Under
Energy Policy Act of 1992.--This section shall not apply to any
oil shale claims for which a fee is required to be paid under
section 2511(e)(2) of the Energy Policy Act of 1992 (Public Law
102-486; 106 Stat. 3111; 30 U.S.C. 242).
(d) Waiver.--(1) The claim maintenance fee required under
this section may be waived for a claimant who certifies in
writing to the Secretary that on the date the payment was due,
the claimant and all related parties--
(A) held not more than 10 mining claims, mill sites,
or tunnel sites, or any combination thereof, on public
lands; and
(B) have performed assessment work required under the
Mining Law of 1872 (30 U.S.C. 28-28e) to maintain the
mining claims held by the claimant and such related
parties for the assessment year ending on noon of
September 1 of the calendar year in which payment of
the claim maintenance fee was due.
(2) For purposes of paragraph (1), with respect to any
claimant, the term ``related party'' means--
(A) the spouse and dependent children (as defined in
section 152 of the Internal Revenue Code of 1986), of
the claimant; and
(B) a person who controls, is controlled by, or is
under common control with the claimant.
For purposes of this section, the term control includes actual
control, legal control, and the power to exercise control,
through or by common directors, officers, stockholders, a
voting trust, or a holding company or investment company, or
any other means.
(3) If a small miner waiver application is determined
to be defective for any reason, the claimant shall have
a period of 60 days after receipt of written
notification of the defect or defects by the Bureau of
Land Management to: (A) cure such defect or defects, or
(B) pay the $100 claim maintenance fee due for such
period.
(e) Security of Tenure.--
(1) Claimant rights.--
(A) Definition of operations.--In this
paragraph, the term ``operations'' means--
(i) with respect to a locatable
mineral, any activity or work carried
out in connection with--
(I) prospecting;
(II) exploration;
(III) discovery and
assessment;
(IV) development;
(V) extraction; or
(VI) processing;
(ii) the reclamation of an area
disturbed by an activity described in
clause (i); and
(iii) any activity reasonably
incident to an activity described in
clause (i) or (ii), regardless of
whether that incidental activity is
carried out on a mining claim,
including the construction and
maintenance of any road, transmission
line, pipeline, or any other necessary
infrastructure or means of access on
public land for a support facility.
(B) Rights to use, occupation, and
operations.--A claimant shall have the right to
use and occupy to conduct operations on public
land, with or without the discovery of a
valuable mineral deposit, if--
(i) the claimant makes a timely
payment of--
(I) the location fee required
by section 10102; and
(II) the claim maintenance
fee required by subsection (a);
or
(ii) in the case of a claimant who
qualifies for a waiver of the claim
maintenance fee under subsection (d)--
(I) the claimant makes a
timely payment of the location
fee required by section 10102;
and
(II) the claimant complies
with the required assessment
work under the general mining
laws.
(2) Fulfillment of federal land policy and management
act of 1976.--A claimant that fulfills the requirements
of this section and section 10102 shall be deemed to
satisfy any requirements under the Federal Land Policy
and Management Act of 1976 (43 U.S.C. 1701 et seq.) for
the payment of fair market value to the United States
for the use of public land and resources pursuant to
the general mining laws.
(3) Savings clause.--Nothing in this subsection--
(A) diminishes any right (including a right
of entry, use, or occupancy) of a claimant;
(B) creates or increases any right (including
a right of exploration, entry, use, or
occupancy) of a claimant on lands that are not
open to location under the general mining laws;
(C) modifies any provision of law or any
prior administrative action withdrawing lands
from location or entry;
(D) limits the right of the Federal
Government to regulate mining and mining-
related activities (including requiring claim
validity examinations to establish the
discovery of a valuable mineral deposit) in
areas withdrawn from mining (including under--
(i) the general mining laws;
(ii) the Federal Land Policy and
Management Act of 1976 (43 U.S.C. 1701
et seq.);
(iii) the Wilderness Act (16 U.S.C.
1131 et seq.);
(iv) sections 100731 through 100737
of title 54, United States Code
(commonly referred to as the ``Mining
in the Parks Act'');
(v) the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.); or
(vi) division A of subtitle III of
title 54, United States Code (commonly
referred to as the ``National Historic
Preservation Act'')); or
(E) restores any right (including a right of
entry, use, or occupancy, or right to conduct
operations) of a claimant that existed prior to
the date that the lands were closed to or
withdrawn from location under the general
mining laws and that has been extinguished by
such closure or withdrawal.
* * * * * * *
DISSENTING VIEWS
This legislation would undermine the entirety of public
lands management, tipping the scale even further in the mining
industry's favor. H.R. 2925 would remove the requirement for a
``valuable mineral discovery'' before a mining claim can be
considered valid under the 1872 Mining Law.
The valuable mineral discovery requirement, otherwise known
as the validity test, requires a mining company to prove there
is a valuable mineral deposit underneath their claim before
obtaining exclusive rights to occupy and mine that land. This
validity test is the only limited guardrail the federal
government has on mining claims under the nation's antiquated
mining law. Without the validity test, any American citizen or
company--or American subsidiary of a foreign-owned company--
could permanently lock up almost any public land for negligible
fees and then conduct whatever ``mining-related activities''
they so choose, including burying the land in toxic mining
waste.
In addition, bad actors could easily exploit the broad
language of this bill to claim the rights to public lands with
no genuine intention to mine, and the federal government would
have virtually no ability to invalidate those nuisance claims.
There would be no recourse for other public land users,
including for conservation, recreation, renewable energy
development, and even actual mining.
Hardrock mining, or the extraction of minerals such as
gold, silver, copper, uranium, and lithium, is the U.S.'s
number one source of toxic pollution.\1\ Yet, the industry
operates under the long-outdated Mining Law of 1872, which
contains no environmental or community protections. The law is
a relic irrelevant to modern mining, but it remains almost
entirely unchanged since it was enacted more than 150 years
ago.
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\1\``EPA: Metal Mining Most Toxic Industry in America'' Earthworks
(2006) https://earthworks.org/releases/
epa_metal_mining_most_toxic_industry_in_america/.
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The General Mining Law of 1872 (Mining Law) codified state
and local mining customs, laws, and regulations that developed
during the California gold rush of 1848/1849.\2\ The Mining Law
granted generous rights to miners on public lands, including
giving mining priority over all other potential uses of public
lands, with mining as the ``highest and best use'' unless those
lands are expressly withdrawn from mining (e.g., national
parks, monuments, wilderness areas).
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\2\John D. Leshy. 1987. The Mining Law: A Study in Perpetual
Motion.
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The Mining Law allows miners to ``claim'' up to 20 acres of
federal land for mineral exploration and extraction. To stake a
mining claim, any American citizen or company can prospect and
locate claims on public lands that are not already withdrawn.
Claimants place four stakes in the ground on eligible land and
submit their claim and nominal fees to their local county and
Bureau of Land Management (BLM) office. The cost to register a
new claim is $225 per 20 acres ($11.25 per acre one-time fee)
and then $165 per 20 acres each year thereafter to maintain the
claim ($8.25 per acre annually). Mining claims are held in
perpetuity if the claimant pays its annual fee. Waivers for
maintenance fees are available for claimants with ten or fewer
mining claims.
A valid mining claim gives the claim holder broad rights to
occupy and conduct mining-related operations on a claim, which
takes priority over all other potential uses of that public
land.\3\
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\3\``The locators of all mining locations heretofore made [. . .]
shall have the exclusive right of possession and enjoyment of all
surface included within the lines of their locations, and of all veins,
lodes, and ledges throughout their entire depth. [. . .] Nothing in
this section shall authorize the locator or possessor of a vein or lode
[. . .] to enter upon the surface of a claim owned or possessed by
another.'' Mining Law of 1872, section 2322 (30 USC 24).
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However, a claim is valid only if it is shown to contain
valuable minerals. If the government challenges the validity of
the claim, the claimant must demonstrate proof of a valuable
mineral deposit; in practice, though, claims have been
considered valid unless proven otherwise. To formally
invalidate a claim, the agency must go through a long and
costly mineral examination to prove there are no minerals
present. In most circumstances, a claimant can simply re-claim
an area immediately after their original claim is invalidated.
Land management agencies have historically treated all claims
as valid--and granted the claimants all the rights to that
land--unless there was a pressing reason to check the claim's
validity.
When a mining company wants to begin operations, it submits
a mining plan of operation to the BLM or the Forest Service for
environmental review. Because mining operates outside of the
land-use planning process and because the Mining Law grants
miners ``the exclusive right of possession and enjoyment'' of
their claim and the minerals it contains,\4\ BLM and the Forest
Service cannot deny a mine's right to operate; they can only
require mitigation measures to prevent ``unnecessary or undue
degradation.''\5\
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\4\30 U.S.C. Sec. 26.
\5\43 U.S.C. Sec. 1732(b).
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There are no environmental provisions, tribal consultation,
community protection, or permitting requirements in the Mining
Law. Hardrock mining activities are covered in part by other
federal laws such as the Clean Water Act; the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA; also known as Superfund); the National Environmental
Policy Act (NEPA); and the Federal Land Policy and Management
Act (FLPMA). BLM and the Forest Service maintain regulations to
manage mining activities, but this patchwork of laws and
regulations leaves major gaps.6}7 BLM's current
mining regulations were written by the Bush Administration in
2001 (which overturned stronger Clinton-era regulations) and
are very similar to BLM's 1980 regulations. Forest Service
regulations have not been meaningfully updated since 1974. In
2018, the Trump administration began the process of updating
the Forest Service regulations but did not complete the work
before leaving office.\8\
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\6\43 C.F.R. Subpart 3809.
\7\36 C.F.R. Part 228 Subpart A.
\8\U.S. Forest Service, Advanced notice of proposed rulemaking;
request for comment, 83 FR 46451. September 13, 2018. https://
www.federalregister.gov/documents/2018/09/13/2018-19961/locatable-
minerals.
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Unlike coal, oil, and gas, mining companies pay no
royalties to the federal government for the publicly owned
minerals they extract. Multinational mining companies have
extracted more than $300 billion worth of precious metals from
public lands without paying a cent in royalties to the American
people.\9\
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\9\Project on Government Oversight, Congress Must Establish a
Hardrock Mining Royalty, 2021 https://www.pogo.org/fact-sheets/
congress-must-establish-a-hardrock-mining-royalty-2.
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In 2022, the U.S. Court of Appeals for the Ninth Circuit
upheld that the Rosemont copper mine in southeastern Arizona
could not dump its mining waste on an invalid mining claim in
the Coronado National Forest. Initially, the Forest Service
assumed that the Rosemont Copper Company had valid mining
claims where it planned to dump its waste. However, the court
upheld a lower court's finding of those waste dump claims as
invalid because they had not been shown to contain valuable
minerals. Furthermore, a company wouldn't use an area with a
valuable mineral deposit as a waste dump. The ruling, known as
the ``Rosemont decision,'' affirmed that claims without
valuable mineral deposits were not valid.
The mining industry argues they need H.R. 2925 as a ``fix''
because the Rosemont decision limited their ability to use
mining claims for important ``ancillary uses,'' like dumping
toxic waste on public lands. Without a valid mining claim, a
mining company doesn't have automatic priority use of public
lands, as they would otherwise. A company could still request
to use the public land as a waste dump, but it would have to
undergo the same multiple-use balancing determinations as other
uses of public lands and be less likely to be approved. There
are other methods for procuring land adjacent to a mine to use
as a mining waste storage area, such as land swaps or buying
private land, but the mining industry vastly prefers to use
mining claims due to their ease and affordability--they are
lucrative handouts.
In 2023, the DOI Solicitor issued an opinion referencing
the many other options for procuring land for mining waste
under current law. However, the mining industry remains
persistent in pushing for a ``legislative fix.'' The mining
industry argues that this legislation would provide
``certainty'' for mining and mineral exploration, but all but
one potential Rosemont-related legal challenge to mines being
permitted were resolved within days to months. Indeed, within
days of the Rosemont decision, the Rosemont mine purchased
adjacent private land to use for its mining waste.
Under current law, the valuable mineral requirement is the
only guardrail limiting where individuals or companies can hold
valid claims on our open public lands. Former DOI Solicitor
John Leshy wrote in a letter to the Committee that the plain
text of this bill gives anyone who stakes a mining claim the
``right to use and occupy public land'' for the low price of
about $10 an acre a year.
This bill also creates loopholes for non-mining bad actors.
Specifically, ``mining-related operations'' is defined so
broadly that bad actors could easily build all kinds of
industrial facilities across public lands--power plants,
processing facilities, or even gemstone shops--and call them
``mining-related.''
Without the requirement of a valuable mineral discovery,
all of our public lands that are not already withdrawn from
mining (National Parks, wilderness areas, etc.) would be open
to harmful mining and ill-defined ``mining-related
activities.''
Due to the ease of staking a claim and the difficulty of
invalidating one, there is a long history of ``nuisance''
claims on public lands. Individuals or companies will file
nuisance claims to block anticipated land uses--like
withdrawals, other mines, or renewable energy development.
These claims can impede these other uses and cost the federal
government and private entities substantial sums to buy them
out.\10\
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\10\U.S. Government Accountability Office, 1990, Unauthorized
Activities Occurring on Hardrock Mining Claims RCED-90-111 Federal Land
Management: Unauthorized Activities Occurring on Hardrock Mining Claims
(gao.gov).
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Congress should reject this misguided proposal.
Raul M. Grijalva,
Ranking Member.
[all]