WASHINGTON (CN) — A D.C. Circuit panel ruled 2-1 Tuesday to uphold a 2003 rule that allows mining companies to claim an unlimited amount of land around a mining site for related activities like chemical processing and waste dumping.
The challenge, brought by a coalition of environmental organizations in 2009, centered on whether a section of the 1872 Mining Law — from which the 2003 rule derives — unambiguously limits mining companies to a single, 5-acre mill site.
Groups such as Earthworks, the Western Shoshone Defense Project, High Country Citizen’s Alliance, Great Basin Resource Watch and Save the Scenic Santa Ritas argued in January that Congress did not intend for mining companies to be able to claim thousands of acres surrounding a mine, in some cases “quadrupling the mine’s size.”
Senior U.S. Circuit Judge Douglas Ginsburg disagreed, writing in the majority opinion that the Bureau of Land Management correctly interpreted Section 42 of the Mining Law, which allows the owner of a mining claim to locate nearby “non-mineral-bearing” land for mining or milling.
The Ronald Reagan appointee found the section of that statue, while limiting such “mill sites” to five acres, does not contain an express limitation on the number of sites a claimant can hold.
“We have no difficulty concluding that the interpretation embodied in the mill-site regulation represents the better reading of the statute,” Ginsburg wrote. “The operative words of Section 42 plainly contain no limit on the number of mill sites a claim owner may locate.”
U.S. Circuit Judge Gregory Katsas, a Donald Trump appointee, joined Ginsburg in upholding the 2003 rule, while Judge Florence Pan, a Joe Biden appointee dissented. While upholding the rule, the panel also ruled that the environmental groups had standing to challenge the rule.
Ginsburg and Katsas, affirmed a decision by U.S. District Judge Rudolph Contreras to grant summary judgment in the case, in which he upheld the environmental groups’ standing. Contreras, a Barack Obama appointee, also found that Section 42 was “ambiguous” regarding the aggregate size of mill sites, but held that the Interior Department’s reading of the statue was reasonable.
In her dissent, Pan disagreed with the “unlimited mill sites” interpretation, noting that in her view the text, structure and historical context of the 1872 law clearly preclude that reading.
The Biden appointee highlighted the fact that Congress took “pains” to limit the size of public land grants to just 20 acres, and found that interpreting Section 42 as imposing a “5-acres-in-total” limit is clearly appropriate and in line with the overall spirit of the statute.
“By contrast, allowing miners to claim multiple five-acre mill sites means that the mill-site land — which is intended to support the associated mining claim — can instead dwarf the mining claim in size,” Pan wrote. “While a single mining claim can encompass only about 20 acres, the unlimited-mill-sites approach allows mining companies to claim hundreds or thousands of acres of related mill-site land. In short, permitting an unlimited number of mill sites is contrary to the structure of the statue and deprives the 5-acre constraint any real meaning.”
In 1954, the BLM issued guidance that allowed mining companies to claim more than one mill site per mining claim.
Former Interior Department Secretary Bruce Babbitt reversed that practice in 1997, issuing an opinion that expressly advised that each mining claim was limited to one mill site claim, and that companies could only acquire more land through other means like land exchanges or acts of Congress.
Babbitt’s opinion led to a 1999 proposed rule, which was reversed in 2003 under former President George W. Bush.
Flynn argued that, when the reversal came under 2003, there was no opportunity for public comment on an issue that would have significant ramifications for the country, particularly in the West.
Between 2010 and 2014, BLM and U.S. Forest Service approved 68 new mining plans on federal land across 12 Western states, including Alaska, totaling 35,945 acres, according to a 2017 Government Accountability Office report.
While newly approved mines in Arizona, New Mexico and Colorado appear to have use-limited acreage (four mines in Arizona occupied 52 total acres, two in New Mexico used 38 acres and three in Colorado used 32 acres) mines in Nevada and Wyoming went well beyond.
In Nevada, 11 approved mines occupied 16,600 total acres. In Wyoming, 21 projects were granted 17,920 acres. Utah, with the third-most projects, received 674 acres for eight projects.
Ginsburg highlighted Gayle Hartmann, a member of Save the Scenic Santa Ritas and resident of Pima County, Arizona, who said in a declaration that the BLM’s rule would allow a proposed open-pit copper mine in the region that will harm, if not preclude altogether, her ability to enjoy the natural scenery and wildlife.
According to the record established during the lower court proceedings, that copper mine had claimed approximately 3.500 acres of mill-site land in Pima County.
“In this case, we hold the allegations of harm set forth in the declaration of Ms. Hartmann suffice to give her — and the organization of which she is a member — standing to challenge the final rule,” Ginsburg wrote.
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