Biden administration calls for mining law reform

Antiquated public land mining rules need to be brought into 21st century

⛏️Mining Monitor ⛏️

The Biden Administration released it’s long-awaited recommendations on overhauling federal mining laws as efforts ramp up to extract so called “green metals” used in clean energy infrastructure and electric vehicles. If implemented, the recommendations would be the most meaningful reforms to the 1872 General Mining Law since President Ulysses S. Grant signed it into law 151 years ago.

Gold King Mine, 1906.

The interagency working group had a difficult task: To develop reforms that would “secure supply chains,” i.e. mine more metals, while also better protecting people and the environment from the new mining boom. 

The report leans strongly enough in the environmental protection direction that it has received limited praise from some conservation groups and strong pushback from mining-state politicians. Sen. John Barrasso, the Wyoming Republican, called it “reckless,” and Nevada Democratic Sens. Catherine Cortez Masto and Jacky Rosen said the recommendations would hurt the mining industry. 

The senators doth protest too much, methinks. First off, these are merely recommendations, which won’t mean anything unless and until they are implemented via executive or administrative order or congressional legislation. Secondly, they are common-sense reforms aimed at bringing the antiquated, obsolete, and nonsensical set of laws that govern mining on public lands into the 21st century. Nothing here is radical, by any means, nor is it going to shut down the mining industry. If anything it will bring hardrock mining rules onto a par with those for oil and gas drilling and coal mining. And believe me, those rules aren’t strict enough.

It’s a big report, clocking in at 169 pages. I’ll delve into some of the provisions more in future dispatches, but for now I’ll just give a summary of some of the biggest points (and it’s still super long!).

 

The main, overarching recommendations are:

• Permanently end patenting of federal land mining claims. The 1872 Mining Law allows claimants to patent — or assume title to — their mining claims, which is why historical mining areas are covered with strangely shaped parcels of private land. In 1994, Congress put a moratorium on patents, but they must renew it yearly. 

• Develop a hardrock mining leasing system analogous to the General Mineral Leasing law that applies to oil and gas and coal development on public lands. Transitioning to a leasing system, the report says, would “enhance comprehensive resource management and allow American taxpayers to capture a share of the revenue generated by the production of publicly owned resources.” Makes sense!

• Prepare a programmatic environmental impact statement that incorporates mining into land use planning processes. By doing this, the agencies could — for the first time — identify areas where hardrock mining is appropriate and inappropriate, rather than the free-for-all we have today, and drive mineral development to high-value, low-impact areas. 

• Authorize federal land agencies to blackball an operator based on past poor performance. Kind of a no-brainer, yeah? 

• Create a process allowing federal land agencies to withdraw areas from mining but that allows conditional development. Whereas a national monument designation, for example, bans all new mining, this category would allow mining if the operator commits to “heightened environmental and cultural protection standards.” 

• Place a royalty on minerals produced from federal lands. No s%^t, Sherlock! They are the public’s minerals, therefore the public should get a cut of the take, just as is the case with oil and gas and coal extracted from public lands. Their recommended range of 4% to 8% seems a bit low, but it’s better than nothing, which is what mining corporations pay now. 

• Increase claim maintenance fees. In order to keep a mining claim active, claimants must pay an annual fee of $165 (that can be waived altogether for “small miners”). That’s all! It’s not nothing, but it’s low enough that speculators and so forth can just hang on to their little 10- or 20-acre piece of public land to maybe pawn off on some corporation when uranium or lithium prices hit the roof. Crank up these fee amounts, get rid of the small miner waiver, and you could reduce this sort of speculation while also raising more money for abandoned mine reclamation. 

• Create a reclamation fee based on the amount of ore mined to help pay for abandoned mine reclamation. The Obama administration proposed a 7-cents/ton fee, which would have raised about $200 million per year.

• Improve the permitting process. The report gets more detailed about how to improve it, mainly by working on transparency, consistency, interagency coordination, and engagement with affected communities. This is one I’ll dive into in a later dispatch.

• Promote a circular economy. Up your recycling game, folks, so you don’t have to do as much mining in the first place!

• Enact legislation requiring “meaningful, robust, and early consultation between the federal and tribal governments.” And provide additional protections for tribal cultural sites, sacred sites, and resources. Obviously! 

• Incorporate Indigenous Knowledge during the environmental and permitting review, whether it’s for exploration or operations. 

• Require adherence to global tailings management standards. Mill tailings, mining waste rock, and smelter slag together make up a massive, often toxic waste stream. In some cases these waste piles have greater impacts than the hole in the ground, and breached tailings dams have been responsible for some of the most catastrophic mining disasters. So, yeah, you might want to get a tighter handle on how they’re managed. 

• Enact Good Samaritan protections. Nonprofits and other non-mining entities are often reticent to do any remediation work on mine sites, especially those draining highly contaminated water, because they may incur liability for the site under federal clean water laws. For years folks have urged Congress to pass legislation allowing good samaritans to conduct cleanups without fear of having to pay for something like the Gold King Mine spill years down the road. The working group is now joining the call to limit liability, with conditions, and just a couple days ago a group of bipartisan lawmakers introduced Good Samaritan legislation in the Senate. 

• Encourage mining and reprocessing at previously disturbed sites. This can be helpful under certain circumstances, since it amounts to a mining company with resources “adopting” orphaned/abandoned mines and becoming responsible not only for new messes they make, but also the existing mess others left behind. And bringing new milling technology to extract valuable — and often harmful — metals from old waste dumps and tailings piles makes sense, so long as it doesn’t create a new mess. 

• Prohibit mine operations that would result in the need for perpetual water treatment. This is another no-brainer. It also may be tough to get through. After all, there are hundreds of draining mines across the West that require perpetual water treatment — at least until some other, novel solution is found. 

• Strengthen financial assurance requirements. Ya gotta make sure these corporations have the cash to clean up their mess — even if they go belly up. 

• Up staffing and funding for federal land and regulatory agencies. 

For more on the technical aspects of acid mine drainage, start here:

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🏠 Real Estate Room 🤑 

One of the funny, and perhaps tragic, things about the housing crisis is that it tends to warp one’s sense of reality. I’ve long scanned Zillow and other real estate sites, looking for that hidden bastion of housing “affordability.” It wasn’t so long ago that my idea of affordable was $150,000 or less. Then it jumped up a notch into the mid-$200,000s. (Oh, and by the way, this has less to do with my financial means and what I can or cannot afford than it does with a general sense of what seems reasonable at a given time.) Now, I get excited when I see a 200-square-foot home with acreage, asking price $375,000.

 I mean, it’s a super-cool looking place and the location’s wonderful and I’d rather live there than in a $375,000 place in the suburbs. Nor do I fault the seller for asking that much: You absolutely should get whatever the market can bear. But it seems wacky that the market can bear this sort of thing: According to Zillow’s affordability calculator, someone would have to make $110,000 per year with a $20,000 down payment for this to be “affordable.”

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🚴🏼 And now for something completely different … 🚴🏼

Sepp Kuss, aka the Durango Kid, referring to his hometown, is currently leading the Vuelta de España, one of three of professional cycling’s grand tours. He is likely to take overall victory — assuming his teammates don’t sabotage him. A lot of you may be thinking: Vuelta what? But I assure you, this is a big deal, especially for Kuss, who typically plays a supporting role — or ultra-domestique — for his team leaders. And it’s been a blast to watch a fellow southwest Coloradan, and a really good guy, besides, leading the world’s best cyclists up the grueling climbs of Spain.

Sepp’s parents, Sabine and Dolph, are longtime Durango folks and paragons of the outdoor athletic community there. Dolph was an Olympian in nordic skiing and later coached the national team; Sabine works and skis at the Durango Nordic Center. And this is a photo of Dolph skiing. That’s not snow under his boards, however, nor is it sand. It’s a giant pile of uranium mill tailings that once sat on the south edge of Durango. Make of it what you will.