Judge affirms stricter interpretation of federal mining law

Apr 12, 2023, 1:28 PM | Updated: 1:56 pm

RENO, Nev. (AP) — Another judge has adopted a U.S. appellate court’s stricter interpretation of a century-and-a-half-old mining law in a new ruling that blocks a metals mine in Nevada. The ruling could have ramifications for a huge lithium mine near the Nevada-Oregon line and other future mines on public lands across the West.

U.S. District Judge Larry Hicks in Reno vacated the U.S. Bureau of Land Management’s approval of Eureka Moly’s planned molybdenum mine about 250 miles (402 kilometers) east of Reno in a case that dates to 2013 and made two trips to the 9th U.S. Circuit Court of Appeals.

Hicks cited the 9th Circuit’s unprecedented ruling in an Arizona case last year that upended the government’s long-held position that the 1872 Mining Law conveys the same rights established through a valid mining claim to adjacent land for the disposal of tailings and other waste.

That ruling blocked construction of a copper mine based on the conclusion those rights don’t automatically apply to the neighboring national forest lands where the company planned to dump the waste rock.

Rather, the company must establish — and the government validate — that valuable minerals are present in such lands for such a claim to exist.

In the case of the molybdenum, which is most often used to strengthen steel, Hicks found “no meaningful difference” between the Forest Service arguments in the 9th Circuit decision on the Arizona mine “and BLM’s arguments here.”

“BLM cannot skirt the Mining Law requirement that valuable mineral deposits must be found in order to occupy the land,” he wrote March 31.

U.S. Judge Miranda Du in Reno cited the 9th Circuit ruling in concluding last month that BLM acted illegally when it approved Lithium Americas’ Thacker Pass mine near the Nevada-Oregon line.

But unlike Hicks or the appellate court, Du stopped short of vacating BLM’s approval of the project.

Instead, she moved the project back to the agency to determine whether there is sufficient evidence of valuable minerals to establish valid claims. Meanwhile, construction efforts are underway.

Environmentalists have appealed Du’s ruling on the lithium mine to the San Francisco-based court, which is expected to hear oral arguments in June.

Lithium is used in the manufacture of batteries for electric vehicles — a key part of President Joe Biden’s “clean energy” agenda intended to speed a transition from fossil fuels to renewables.

Like other mines have done for decades, Eureka Moly LLC (EML) argued it didn’t intend to permanently occupy the adjacent lands because the mining at Mt. Hope would end in 40 years.

But Hicks said the 9th Circuit also shot down that argument.

“Although EML’s authorization to use the land will expire when the project is complete, the waste rock will remain. Thus, EML’s occupation … will be permanent,” Hicks said. The “Rosemont (decision) requires that to permanently occupy the land as EML proposes, valuable deposits of minerals must exist.”

The record contains no evidence of molybdenite on surrounding lands, he said, and “BLM admits that it made no attempt to determine whether EML’s mining claims are valid.”

Environmentalists say Hicks’ ruling bodes well for their Thacker Pass appeal.

“It’s very significant,” said Roger Flynn, a longtime attorney for the Colorado-based Western Action Mining Project representing the Great Basin Resource Watch and others in lawsuits challenging both the molybdenum and lithium mines.

“All three rulings now say you can’t bury waste there unless you find valuable minerals,” he said. “The Rosemont issue would apply to basically every big mine in the West.”

Flynn anticipates the next related court case could involve a mine planned in Idaho, the Stibnite Gold Project, which is undergoing Forest Service review and isn’t yet ripe for a legal challenge.

Lithium Americas and other industry leaders insist conservationists are exaggerating the potential reach of the 9th Circuit ruling.

“The Mt. Hope case did not impact Thacker Pass,” Lithium Americas spokesman Tim Crowley said.

“The Thacker Pass and Mt. Hope cases addressed different facts, different legal arguments and had different outcomes,” he wrote in an email Tuesday to The Associated Press. “The judge in our case thoroughly considered the specific Thacker Pass details in rendering her decision, and the project is now in construction and moving forward. ”

Mark Compton, executive director of the American Exploration & Mining Association, agreed.

“I don’t believe a straight line comparison can be made between the court decisions on Mt. Hope, Thacker Pass, and Rosemont,” Compton said in an email. “The facts are unique to each case.”

But John Hadder, executive director of the Reno-based Great Basin Resource Watch, said Hicks’ ruling on the heels of Du’s sets the stage for appeal arguments in June.

“Both judges are saying there’s illegal actions here,” Hadder said. He questions why Du allowed construction to begin if Lithium Americas’ plan isn’t legal.

“It violates the law, but there’s no repercussion. They can still go forward with the illegal action. It doesn’t make sense,” Hadder said. “We’re hoping the 9th Circuit will not only validate the ruling but also vacate the permit.”

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Judge affirms stricter interpretation of federal mining law