Switchbacks for roads cut through three ridges in the area being worked for Hudbay Minerals Inc. in the Santa Rita Mountains south of Tucson, Ariz. in 2021. Kelly Presnell/Arizona Daily Star via AP, File
RENO, Nev. — A Nevada Democratic U.S. senator is looking to Congress to ensure mining companies can use established mineral claims to dump waste on neighboring federal lands as they always had before a federal appeals court adopted a stricter interpretation of a 150-year-old law.
Environmentalists widely praised the 9th U.S. Circuit Court of Appeals’ more restrictive ruling, which blocked the Rosemont copper mine in southern Arizona last year because the company hadn’t proven it had mineral rights on the adjacent land where the waste rock was to be buried.
The ramifications of the ruling are worrisome, however, for President Biden’s clean energy agenda and for key projects to mine lithium, cobalt and other materials needed to manufacture batteries for electric vehicles.
In response, Nevada U.S. Sen. Catherine Cortez Masto drafted a bill she intends to introduce Tuesday with Republican Sen. James Risch of Idaho, her office told The Associated Press on Monday. The bill would amend a 1993 budget reconciliation act but primarily clarifies definitions of activities and rights central to the 1872 Mining Law.
The language is intended to insulate mines from the more onerous and likely most expensive standards imposed on the industry by the 9th Circuit ruling, which was a significant departure from long-established mining practices that environmentalists have fought for decades.
Two U.S. judges in Nevada have since enforced it – one in a complicated way that nevertheless allowed construction to begin at what would be the largest lithium mine in the nation near the Oregon line.
Without congressional action, Cortez and other senators say critical mineral projects across the West are threatened, including those needed to expedite the transition from fossil fuels to renewable energy and to bolster national defense.
“This misguided decision would force all mining activities, even the storage of waste, to happen on mineral-rich land, which could impede critical mineral production all across the country,” Cortez Masto said in a statement emailed to AP.
Nevada is the biggest gold-producing state and home to some of the nation’s largest lithium deposits.
Republican Sen. Mike Crapo of Idaho and Sen. Kyrsten Sinema of Arizona, an independent, have signed on to the bill as co-sponsors.
The measure is sure to meet staunch opposition from conservationists who consider the Rosemont ruling and its ripple effects one of their biggest victories in years.
While they generally embrace Biden’s efforts to speed the transition to renewables, they continue to challenge even so-called green energy projects with lawsuits accusing the government of violating laws protecting endangered species, water resources and cultural and historical sites.
The Rosemont ruling upended the government’s long-held position that the 1872 Mining Law – the nation’s premier regulation of mining since the Civil War – conveys the same rights established through a valid mining claim to adjacent land for the disposal of tailings and other waste.
The 9th Circuit held that instead, the company must establish – and the government must validate – that valuable minerals are present under such lands for a claim to exist.
Based largely on that ruling, U.S. District Judge Miranda Du in Reno ruled in February that the Bureau of Land Management had violated the law when it approved Lithium Americas’ plans for the Thacker Pass mine near the Nevada-Oregon line. But she allowed construction to begin last month while the bureau works to bring the project into compliance with federal law.
The 9th Circuit has scheduled oral arguments June 26 on environmentalists’ appeal of Du’s refusal to halt the mine even though she found it was approved illegally.
Last month, U.S. Judge Larry Hicks in Reno also adopted the Rosemont standard in his ruling that nullified Bureau of Land Management approval of a Nevada molybdenum mine and prohibited any construction.
“BLM cannot skirt the Mining Law requirement that valuable mineral deposits must be found in order to occupy the land,” he wrote March 31.
Industry leaders said Cortez Masto’s legislation is necessary to restore a regulatory landscape in place for more than a century and expedite mining of materials critical to expanding sources of renewable energy.
“Regulatory certainty, or the lack thereof, will either underpin or undermine efforts to meet the extraordinary mineral demand now at our doorstep,” said Rich Nolan, president and CEO of the National Mining Association.
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