The Crown Jewel decision: Recognizing the Mining Law's inherent limits

Ecology Law Quarterly

Volumn 27, Issue 3, 2000, Pages 819-839

  Rinke, Nicole ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0040792615     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (190)

1. Both departments shared discretion over the proposed mineral project because It was located on both Bureau of Land Management and United States Forest Service Land. See Letter from the Office of the Solicitor General of the DOI, signed by John D. Leshy, Solicitor, Department of the Interior; James R. Lyons, Undersecretary for Natural Resources and Environment, Department of Agriculture; Charles R. Rawls, General Counsel, Department of Agriculture; and Sylvia Baca, Acting Assistant Secretary for Lands and Minerals Management, DOI, to Greg Etter, Vice President and General Counsel, Battle Mountain Gold Company (Mar. 25, 1999) (on file with author) [hereinafter Crown Jewel].
2. 30 U.S.C. §§ 22-24, 26-28, 29, 30, 33-35, 37, 39-42, 47 (2000).
3. Id. The law governs the mining of locatable hardrock minerals on federal land including but not limited to, gold, silver, copper, platinum, and uranium. The 1920 Mineral Leasing Act removed coal, oil, gas, sodium, and phosphate from the law's jurisdiction. Id. §§ 201-210. In 1947, common varieties of stone, sand, gravel, cinder, and pumice were removed via the passage of the Surface Resources Act. Id. §§ 615 (1947). For a detailed discussion of the Mining Law, see JOHN D. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION (1987).
4. Id. The law governs the mining of locatable hardrock minerals on federal land including but not limited to, gold, silver, copper, platinum, and uranium. The 1920 Mineral Leasing Act removed coal, oil, gas, sodium, and phosphate from the law's jurisdiction. Id. §§ 201-210. In 1947, common varieties of stone, sand, gravel, cinder, and pumice were removed via the passage of the Surface Resources Act. Id. §§ 615 (1947). For a detailed discussion of the Mining Law, see JOHN D. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION (1987).
5. Id. The law governs the mining of locatable hardrock minerals on federal land including but not limited to, gold, silver, copper, platinum, and uranium. The 1920 Mineral Leasing Act removed coal, oil, gas, sodium, and phosphate from the law's jurisdiction. Id. §§ 201-210. In 1947, common varieties of stone, sand, gravel, cinder, and pumice were removed via the passage of the Surface Resources Act. Id. §§ 615 (1947). For a detailed discussion of the Mining Law, see JOHN D. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION (1987).
6. The Mining Law Is actually titled an act "To Promote the Development of the Mining Resources of the United States." For information regarding Manifest Destiny and the gold rush, see WILLIAM S. GREEVER, BONANZA WEST: THE STORY OF THE WESTERN MINING RUSHES, 1848-1900 (1963). For more text discussing Manifest Destiny, see generally, GEORGE BROWN TINDALL & DAVID E. SHI, AMERICA: A NARRATIVE HISTORY, VOL. 2 750-72 (3rd ed. 1992).
7. The Mining Law Is actually titled an act "To Promote the Development of the Mining Resources of the United States." For information regarding Manifest Destiny and the gold rush, see WILLIAM S. GREEVER, BONANZA WEST: THE STORY OF THE WESTERN MINING RUSHES, 1848-1900 (1963). For more text discussing Manifest Destiny, see generally, GEORGE BROWN TINDALL & DAVID E. SHI, AMERICA: A NARRATIVE HISTORY, VOL. 2 750-72 (3rd ed. 1992).
8. 30 U.S.C. § 22 (2000).
9. Id. §§ 26, 29.
10. See 30 U.S.C. §§ 22-24, 26-28, 29, 30, 33-35, 37, 39-42, 47 (containing no time limit as to unpatented claims).
11. 30 U.S.C. § 29.
12. See id.
13. See infra p. 823 (discussing the difference between lode and placer claims).
14. See 30 U.S.C. §§ 29, 37 (2000). Since 1994, there has been a moratorium on processing new patent applications. See Department of the Interior and Related Agencies Appropriation Act of Sept. 30, 1994, Pub. L. No. 103-332, 108 Stat. 2499, 2519.
15. See 30 U.S.C. §§ 29, 37 (2000). Since 1994, there has been a moratorium on processing new patent applications. See Department of the Interior and Related Agencies Appropriation Act of Sept. 30, 1994, Pub. L. No. 103-332, 108 Stat. 2499, 2519.
16. See ROCKY MOUNTAIN MINERAL LAW FOUNDATION, AMERICAN LAW OF MINING § 51.02(2nd ed. 1999).
17. Until the 1960s, the primary focus of federal land management policy was resource development and disposal. However, since the 1960s, Jn response to a growing nationwide environmental sentiment, Congress has been redefining the role of federal lands. In 1916, it created the National Park System, officially recognizing for the first time the importance of preservation and recreation on federal lands. See 16 U.S.C. §1. In 1964, it passed the Wilderness Act whereby vast amounts of land have been set aside from development. 16 U.S.C. §§ 1131-1136. Perhaps most notably, in 1976, Congress passed the Federal Land Management Policy Act, whereby federal land managers were instructed to prohibit unnecessary and undue degradation on all federal lands. 43 U.S.C. § 1701, et seq. For a more in-depth discussion regarding the evolution of federal land management policies, see generally Scott W. Hardt, Federal Land Management in the Twenty-first Century: From Wise Use to Wise Stewardship, 18 HARV. ENVTL. L. REV. 345 (1994).
18. Until the 1960s, the primary focus of federal land management policy was resource development and disposal. However, since the 1960s, Jn response to a growing nationwide environmental sentiment, Congress has been redefining the role of federal lands. In 1916, it created the National Park System, officially recognizing for the first time the importance of preservation and recreation on federal lands. See 16 U.S.C. §1. In 1964, it passed the Wilderness Act whereby vast amounts of land have been set aside from development. 16 U.S.C. §§ 1131-1136. Perhaps most notably, in 1976, Congress passed the Federal Land Management Policy Act, whereby federal land managers were instructed to prohibit unnecessary and undue degradation on all federal lands. 43 U.S.C. § 1701, et seq. For a more in-depth discussion regarding the evolution of federal land management policies, see generally Scott W. Hardt, Federal Land Management in the Twenty-first Century: From Wise Use to Wise Stewardship, 18 HARV. ENVTL. L. REV. 345 (1994).
19. Until the 1960s, the primary focus of federal land management policy was resource development and disposal. However, since the 1960s, Jn response to a growing nationwide environmental sentiment, Congress has been redefining the role of federal lands. In 1916, it created the National Park System, officially recognizing for the first time the importance of preservation and recreation on federal lands. See 16 U.S.C. §1. In 1964, it passed the Wilderness Act whereby vast amounts of land have been set aside from development. 16 U.S.C. §§ 1131-1136. Perhaps most notably, in 1976, Congress passed the Federal Land Management Policy Act, whereby federal land managers were instructed to prohibit unnecessary and undue degradation on all federal lands. 43 U.S.C. § 1701, et seq. For a more in-depth discussion regarding the evolution of federal land management policies, see generally Scott W. Hardt, Federal Land Management in the Twenty-first Century: From Wise Use to Wise Stewardship, 18 HARV. ENVTL. L. REV. 345 (1994).
20. Until the 1960s, the primary focus of federal land management policy was resource development and disposal. However, since the 1960s, Jn response to a growing nationwide environmental sentiment, Congress has been redefining the role of federal lands. In 1916, it created the National Park System, officially recognizing for the first time the importance of preservation and recreation on federal lands. See 16 U.S.C. §1. In 1964, it passed the Wilderness Act whereby vast amounts of land have been set aside from development. 16 U.S.C. §§ 1131-1136. Perhaps most notably, in 1976, Congress passed the Federal Land Management Policy Act, whereby federal land managers were instructed to prohibit unnecessary and undue degradation on all federal lands. 43 U.S.C. § 1701, et seq. For a more in-depth discussion regarding the evolution of federal land management policies, see generally Scott W. Hardt, Federal Land Management in the Twenty-first Century: From Wise Use to Wise Stewardship, 18 HARV. ENVTL. L. REV. 345 (1994).
21. For a discussion regarding the evolution of mining, see infra Part II.
22. The term "location" refers to the act of appropriating a mining claim according to law or to certain established rules. See St. Louis Smelting & Ref. Co. v. Kemp, 104 U.S. 636 (1882); ROCKY MOUNTAIN MINERAL LAW FOUNDATION, supra note 12, § 51.07[8].
23. The term "location" refers to the act of appropriating a mining claim according to law or to certain established rules. See St. Louis Smelting & Ref. Co. v. Kemp, 104 U.S. 636 (1882); ROCKY MOUNTAIN MINERAL LAW FOUNDATION, supra note 12, § 51.07[8].
24. Lara v. Secretary of the Interior, 820 F.2d 1535, 1537 (9th Cir. 1987).
25. See Ranchers Exploration & Dev. Co. v. Anaconda Co., 248 F. Supp. 708, 714 (D. Utah 1965).
26. 252 U.S. 286 (1920).
27. Id. at 296.
28. United States v. Coleman, 390 U.S. 599, 600 (1968). This decision raised the "valuable discovery" threshold from the prudent man test previously espoused in Castle v. Womble, 19 Public Lands Dec. 45E> (1894), defining a mineral deposit as valuable when "a person of ordinary prudence would be Justified in the further expenditure of his labor and means, with a reasonable prospect of success . . . ." Id. In Coleman, the Supreme Court held that the marketability test was merely a complement to this earlier test rather than a repudiation. However, critics have suggested that the two tests are inherently contradictory, that is, present marketability at a profit does not necessarily equal a reasonable prospect of success. See George E. Reeves, The Law of Discovery Since Coleman, 21 ROCKY MT. MIN. LAW INST., 415, 418-19 (1975).
29. United States v. Coleman, 390 U.S. 599, 600 (1968). This decision raised the "valuable discovery" threshold from the prudent man test previously espoused in Castle v. Womble, 19 Public Lands Dec. 45E> (1894), defining a mineral deposit as valuable when "a person of ordinary prudence would be Justified in the further expenditure of his labor and means, with a reasonable prospect of success . . . ." Id. In Coleman, the Supreme Court held that the marketability test was merely a complement to this earlier test rather than a repudiation. However, critics have suggested that the two tests are inherently contradictory, that is, present marketability at a profit does not necessarily equal a reasonable prospect of success. See George E. Reeves, The Law of Discovery Since Coleman, 21 ROCKY MT. MIN. LAW INST., 415, 418-19 (1975).
30. United States v. Coleman, 390 U.S. 599, 600 (1968). This decision raised the "valuable discovery" threshold from the prudent man test previously espoused in Castle v. Womble, 19 Public Lands Dec. 45E> (1894), defining a mineral deposit as valuable when "a person of ordinary prudence would be Justified in the further expenditure of his labor and means, with a reasonable prospect of success . . . ." Id. In Coleman, the Supreme Court held that the marketability test was merely a complement to this earlier test rather than a repudiation. However, critics have suggested that the two tests are inherently contradictory, that is, present marketability at a profit does not necessarily equal a reasonable prospect of success. See George E. Reeves, The Law of Discovery Since Coleman, 21 ROCKY MT. MIN. LAW INST., 415, 418-19 (1975).
31. See Dennis J. Kitts, 84 I.B.L.A. 338, 343 (1985).
32. As explained by the Supreme Court in Best v. Humboldt, 371 U.S. 334, 336 (1963), whether there has been a valid discovery is a question of fact peculiarly within the expertise of the department.
33. 30 U.S.C. § 26 (2000).
34. Id.
35. See id. § 23.
36. See id. §35; see also, Hall v. McKinnon, 193 F. 572, 574 (9th Cir. 1911). 27. See Decision of Acting Commissioner, June 17, 1873, reprinted in HENRY N. COPP, U.S. MINING DECISIONS 207 (1874); see also Roger Flynn, The 1872 Mining Law as an Impediment to Mineral Development on the Public Lands: A 19th Century Law Meets the Realities of Modern Mining, 34 LAMD &WATER L. REV. 301, 310 (1999). Based on a review of legislative history, Flyn:i suggests that when Congress passed the Mining Law it intended to regulate the size of claims and assumed that miners would patent at 20 acres. Prior to the law's passage, miners would locate claims of irregular size. See id. In considering the Mining Law, Congressman Sargent stated that the Mining Law should establish a size for claims that should be conformed to. See id.
37. See id. §35; see also, Hall v. McKinnon, 193 F. 572, 574 (9th Cir. 1911). 27. See Decision of Acting Commissioner, June 17, 1873, reprinted in HENRY N. COPP, U.S. MINING DECISIONS 207 (1874); see also Roger Flynn, The 1872 Mining Law as an Impediment to Mineral Development on the Public Lands: A 19th Century Law Meets the Realities of Modern Mining, 34 LAMD &WATER L. REV. 301, 310 (1999). Based on a review of legislative history, Flyn:i suggests that when Congress passed the Mining Law it intended to regulate the size of claims and assumed that miners would patent at 20 acres. Prior to the law's passage, miners would locate claims of irregular size. See id. In considering the Mining Law, Congressman Sargent stated that the Mining Law should establish a size for claims that should be conformed to. See id.
38. See id. §35; see also, Hall v. McKinnon, 193 F. 572, 574 (9th Cir. 1911). 27. See Decision of Acting Commissioner, June 17, 1873, reprinted in HENRY N. COPP, U.S. MINING DECISIONS 207 (1874); see also Roger Flynn, The 1872 Mining Law as an Impediment to Mineral Development on the Public Lands: A 19th Century Law Meets the Realities of Modern Mining, 34 LAMD &WATER L. REV. 301, 310 (1999). Based on a review of legislative history, Flyn:i suggests that when Congress passed the Mining Law it intended to regulate the size of claims and assumed that miners would patent at 20 acres. Prior to the law's passage, miners would locate claims of irregular size. See id. In considering the Mining Law, Congressman Sargent stated that the Mining Law should establish a size for claims that should be conformed to. See id.
39. See id. §35; see also, Hall v. McKinnon, 193 F. 572, 574 (9th Cir. 1911). 27. See Decision of Acting Commissioner, June 17, 1873, reprinted in HENRY N. COPP, U.S. MINING DECISIONS 207 (1874); see also Roger Flynn, The 1872 Mining Law as an Impediment to Mineral Development on the Public Lands: A 19th Century Law Meets the Realities of Modern Mining, 34 LAMD &WATER L. REV. 301, 310 (1999). Based on a review of legislative history, Flyn:i suggests that when Congress passed the Mining Law it intended to regulate the size of claims and assumed that miners would patent at 20 acres. Prior to the law's passage, miners would locate claims of irregular size. See id. In considering the Mining Law, Congressman Sargent stated that the Mining Law should establish a size for claims that should be conformed to. See id.
40. See id. §35; see also, Hall v. McKinnon, 193 F. 572, 574 (9th Cir. 1911). 27. See Decision of Acting Commissioner, June 17, 1873, reprinted in HENRY N. COPP, U.S. MINING DECISIONS 207 (1874); see also Roger Flynn, The 1872 Mining Law as an Impediment to Mineral Development on the Public Lands: A 19th Century Law Meets the Realities of Modern Mining, 34 LAMD &WATER L. REV. 301, 310 (1999). Based on a review of legislative history, Flyn:i suggests that when Congress passed the Mining Law it intended to regulate the size of claims and assumed that miners would patent at 20 acres. Prior to the law's passage, miners would locate claims of irregular size. See id. In considering the Mining Law, Congressman Sargent stated that the Mining Law should establish a size for claims that should be conformed to. See id.
41. See id. §35; see also, Hall v. McKinnon, 193 F. 572, 574 (9th Cir. 1911). 27. See Decision of Acting Commissioner, June 17, 1873, reprinted in HENRY N. COPP, U.S. MINING DECISIONS 207 (1874); see also Roger Flynn, The 1872 Mining Law as an Impediment to Mineral Development on the Public Lands: A 19th Century Law Meets the Realities of Modern Mining, 34 LAMD &WATER L. REV. 301, 310 (1999). Based on a review of legislative history, Flyn:i suggests that when Congress passed the Mining Law it intended to regulate the size of claims and assumed that miners would patent at 20 acres. Prior to the law's passage, miners would locate claims of irregular size. See id. In considering the Mining Law, Congressman Sargent stated that the Mining Law should establish a size for claims that should be conformed to. See id.
42. 30 U.S.C. § 42(a) (2000).
43. See id.
44. See J.B. Hoggin, 2 I.D. 755 (1884).
45. Office of Technology Assessment, Management of Fuel and Nonfuel Mineral in Federal Land, CIS-NO 79-J952-9, 127 (1979). For an in-depth discussion of the millsite provision, see Flynn, supra note 27.
46. Office of Technology Assessment, Management of Fuel and Nonfuel Mineral in Federal Land, CIS-NO 79-J952-9, 127 (1979). For an in-depth discussion of the millsite provision, see Flynn, supra note 27.
47. Alaska Copper Co., 32 Pub. Lands Dec. 128, 131 (1903), overruled on other grounds by Yankee Mill Site, 37 Pub. Lands Dec. 674 (1909).
48. Alaska Copper Co., 32 Pub. Lands Dec. 128, 131 (1903), overruled on other grounds by Yankee Mill Site, 37 Pub. Lands Dec. 674 (1909).
49. See Teller v. United States, 113 F. 273, 280 (8th Cir. 1901) (emphasis added); United States v. Rizzinelli, 182 F. 675, 684 (D. Idaho 1910), aff'd. by Bruce W. Crawford, 86 I.B.L.A. 350, 359-62 (1986).
50. See Teller v. United States, 113 F. 273, 280 (8th Cir. 1901) (emphasis added); United States v. Rizzinelli, 182 F. 675, 684 (D. Idaho 1910), aff'd. by Bruce W. Crawford, 86 I.B.L.A. 350, 359-62 (1986).
51. See Teller v. United States, 113 F. 273, 280 (8th Cir. 1901) (emphasis added); United States v. Rizzinelli, 182 F. 675, 684 (D. Idaho 1910), aff'd. by Bruce W. Crawford, 86 I.B.L.A. 350, 359-62 (1986).
52. Teller, 113 F. at 282.
53. See Flynn, supra note 27, at 305.
54. See John E. Young, Mining the Earth, in WORLDWATCH PAPER 109, 116 (Jul. 1992). In Just ten years, the typical truck used In hardrock mining In the Unites States more than doubled in size, from 20-40 tons in 1960, to 80-200 tons in 1970. During this same period, the size of shovels used also increased, from 2 to 18 cubic meters. See id.
55. See id; see also, Crown Jewel, supra note 1, at 169-81.
56. The average gold mine today has a grade-metal to ore content of .00033%. See Young, supra note 36, at 22.
57. For a visual reference, see Lighthawk, The Legacy of Hardrock Mining: An Aerial Perspective (available from 'Lighthawk," Rocky Mountain Field Office, P.O. Box 3736, Aspen, Colorado 81612, 303-925-6987). See generally T. H. Watkins, Hard Rock Legacy, NAT'L GEOGRAPHIC, Mar. 2000, at 76.
58. For a visual reference, see Lighthawk, The Legacy of Hardrock Mining: An Aerial Perspective (available from 'Lighthawk," Rocky Mountain Field Office, P.O. Box 3736, Aspen, Colorado 81612, 303-925-6987). See generally T. H. Watkins, Hard Rock Legacy, NAT'L GEOGRAPHIC, Mar. 2000, at 76.
59. Twitty, Sievwright & Mills, LEGAL STUDY OF NONFUEL MINERAL RESOURCES 1047-48 (1970) (prepared under contract with the Public Lands Review Commission). For a discussion of three modern examples, all of which propose to use far more land as millsites than allowed by law, see also, Flynn, supra note 27, at 360 n.58. For example, the Yarnell Project proposes to use 173 acres for waste management and processing and only 38 for actual mining. See id. Likewise, the Imperial Project proposes to use 961 acres for waste management while using only 341 for mining. See id.
60. Twitty, Sievwright & Mills, LEGAL STUDY OF NONFUEL MINERAL RESOURCES 1047-48 (1970) (prepared under contract with the Public Lands Review Commission). For a discussion of three modern examples, all of which propose to use far more land as millsites than allowed by law, see also, Flynn, supra note 27, at 360 n.58. For example, the Yarnell Project proposes to use 173 acres for waste management and processing and only 38 for actual mining. See id. Likewise, the Imperial Project proposes to use 961 acres for waste management while using only 341 for mining. See id.
61. See Environmental Protection Agency, TRI On-site and Off-site Releases by Industry, 1998, at 1, available at .
62. See Memorandum from the DOI Office of the Solicitor to the BLM, Limitations on Patenting Millsites under the Mining Law of 1872 1-2 (Nov. 1997) (on file with author).
63. See id.
64. BMG is a Houston-based company engaged in gold, silver, and copper mining in Australia, Bolivia, Canada, and the United States. Noranda, a Canadian natural resources firm, owns a 28% interest in BMG. BMG got its start in 1985 as a spin-off company from Penzoil Corp. As of 1998, BMG was $250 million in the red, due in part to low gold prices. See Hoover's Company Profile Database, American Public Companies (visited Jul. 15, 2000) . BMG has agreed to be purchased by Newmont Mining for more than $500 million in the year 2000. Newmont Mining, based in Denver, Colorado, is the second largest gold producer in the world. See Christopher Bowe & Scott Morrison, Newmont to Acquire Battle Mountain, FINANCIAL TIMES, June 26, 2000, at 36.
65. Today, heap leaching is the most commonly employed method for the extraction of gold. Once removed from the ground, the ore is stacked atop pads in large piles rising up to 300 feet high and stretching over hundreds of acres. The piles are soaked with a cyanide solution that percolates through the ore body, bonding with gold particles, thereby enabling the gold 10 be removed from the undesired ore. The remaining cyanide solution is usually stored in large outdoor ponds for reuse in subsequent leaching cycles. Sodium cyanide is lethal to humans and wildlife. Cyanide spills and leaks are fairly common at cyanide retention ponds as are massive bird kills. See MINERAL POLICY CENTER, THE TRUE PRICE OF GOLD (1997). The Crown Jewel project expects to use over 13,000 tons of sodium cyanide. See Flynn, supra note 27, at 326.
66. Today, heap leaching is the most commonly employed method for the extraction of gold. Once removed from the ground, the ore is stacked atop pads in large piles rising up to 300 feet high and stretching over hundreds of acres. The piles are soaked with a cyanide solution that percolates through the ore body, bonding with gold particles, thereby enabling the gold 10 be removed from the undesired ore. The remaining cyanide solution is usually stored in large outdoor ponds for reuse in subsequent leaching cycles. Sodium cyanide is lethal to humans and wildlife. Cyanide spills and leaks are fairly common at cyanide retention ponds as are massive bird kills. See MINERAL POLICY CENTER, THE TRUE PRICE OF GOLD (1997). The Crown Jewel project expects to use over 13,000 tons of sodium cyanide. See Flynn, supra note 27, at 326.
67. See Flynn, supra note 27, at 326.
68. See Becky Kramer, Gold Fuss: Battle Mountain Gold Inc. Finds Itself in a Battle with Environmentalists over a Proposed Large Scale, Open-Pit Mine on Buckhom Mountain, SPOKESMAN REVIEW, Oct. 24, 1999, at C2.
69. See Flynn, supra note 27, n. 124.
70. See Editorial, Mine Licensing Process too Lax, SEATTLE POST INTELLIGENCER, Oct. 10, 1999, at C2.
71. See Flynn, supra note 27, at 31.
72. See Kramer, supra note 47, at D1.
73. See Flynn, supra note 27, at 326.
74. See id.
75. See id.
76. See id. If each millsite were 5 acres a piece, the total number of millsite acreage would be 585 acres, 20 more than the decision says BMG proposed.
77. See Crown Jewel, supra note 1, at 1-2.
78. See id. In so doing, the departments rejected BMG's argument that the Mining Law should not be enforced against projects for which a Record of Decision had already been signed by the BLM and the United States Forest Service. See id. at 4. Agencies are required to ensure that operation plans are in accordance with the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (NEPA). See 40 C.F.R. § 1505.2 (2000). To do so, agencies must prepare a public record of decision that includes a description of the alternatives considered. The DOI and USDA explained that the ROD vested no rights with BMG and, therefore, the Mining Law should apply. Citing the Record of Decision, DOI stated that, "Approval of the Selected Alternative will not now, nor in the future, serve as a determination of ownership or validity of any mining claim to which it may relate, and this Record of Decision does not give the claim owner or operator any rights they are not otherwise entitled to by law." Crown Jewel, supra note 1, at 3-4.
79. See id. In so doing, the departments rejected BMG's argument that the Mining Law should not be enforced against projects for which a Record of Decision had already been signed by the BLM and the United States Forest Service. See id. at 4. Agencies are required to ensure that operation plans are in accordance with the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (NEPA). See 40 C.F.R. § 1505.2 (2000). To do so, agencies must prepare a public record of decision that includes a description of the alternatives considered. The DOI and USDA explained that the ROD vested no rights with BMG and, therefore, the Mining Law should apply. Citing the Record of Decision, DOI stated that, "Approval of the Selected Alternative will not now, nor in the future, serve as a determination of ownership or validity of any mining claim to which it may relate, and this Record of Decision does not give the claim owner or operator any rights they are not otherwise entitled to by law." Crown Jewel, supra note 1, at 3-4.
80. See id. In so doing, the departments rejected BMG's argument that the Mining Law should not be enforced against projects for which a Record of Decision had already been signed by the BLM and the United States Forest Service. See id. at 4. Agencies are required to ensure that operation plans are in accordance with the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (NEPA). See 40 C.F.R. § 1505.2 (2000). To do so, agencies must prepare a public record of decision that includes a description of the alternatives considered. The DOI and USDA explained that the ROD vested no rights with BMG and, therefore, the Mining Law should apply. Citing the Record of Decision, DOI stated that, "Approval of the Selected Alternative will not now, nor in the future, serve as a determination of ownership or validity of any mining claim to which it may relate, and this Record of Decision does not give the claim owner or operator any rights they are not otherwise entitled to by law." Crown Jewel, supra note 1, at 3-4.
81. See id. at 5.
82. See id. at 2.
83. See id.
84. See id.
85. See id.
86. See id. at 1-2.
87. See id. at 2.
88. Id. at 2 (quoting Teller, 113 F. at 273).
89. See id. at 3.
90. See id. at 3, n.7.
91. Id.
92. Id. at 5.
93. See id.
94. See id. at 5-6.
95. See Flynn, supra note 27, at 312. What Congress did do was extend the right to patent millsite acres to holders of placer claims. Prior to 1960, that right only existed in association with lode claims.
96. See Crown Jewel, supra note 2, at 2-3.
97. 113 F. 273 (8th Cir. 1901); see also supra text accompanying note 33.
98. 113 F. 273 (8th Cir. 1901); see also supra text accompanying note 33.
99. The use limitations imposed on mining claims has, since the Crown Jewel decision, been enforced by at least one division of the USFS. The Southwestern Region 3 Office has recently denied a Plan of Operations for the U.S. Hill Mine that proposed to develop approximately 200 acres of federal mining claims solely as waste management facilities for an ore body located on private land. Because the Mining Law does not allow the development of lode claims solely for purposes ancillary to a separate ore body, the District Ranger denied the plan. See Letter from the District Ranger, Southwestern Region 3, Carson National Forest to Governor Red Eagle Rael of the Picuris Pueblo (May 26, 2000) (on file with author); Memo from Roger Flynn of Western Mining Action Project to Governor Red Eagle Rael of the Picuris Pueblo (Feb. 17, 2000) (on file with author).
100. Coleman, 390 U.S. at 600.
101. ROCKY MOUNTAIN MINERAL LAW FOUNDATION, supra note 12, § 10.02[c].
102. Id.
103. H.R. 1141, 106th Cong. (1999).
104. S. 544, 106th Cong. (1999).
105. The Emergency Spending Appropriations Bill was passed by both houses of Congress and signed Into law by President Clinton on May 21, 1999, Pub. L. No. 106-31, 113 Stat. 57, 90 (1999).
106. See Flynn, supra note 27, at nn.351, 377.
107. The appeal on constitutional grounds was first brought unsuccessfully before the Interior Board of Land Appeals. See Okanagon Highlands Alliance, IBLA 99-345, 99-349 (Sept. 3, 1999). The same challenge has now been filed by the appellants in the federal district court of Oregon but has yet to be decided. See Okanagon Highlands Alliance v. Department of Interior, Case No. 990-1598-JE (filed Nov. 12, 1999).
108. The appeal on constitutional grounds was first brought unsuccessfully before the Interior Board of Land Appeals. See Okanagon Highlands Alliance, IBLA 99-345, 99-349 (Sept. 3, 1999). The same challenge has now been filed by the appellants in the federal district court of Oregon but has yet to be decided. See Okanagon Highlands Alliance v. Department of Interior, Case No. 990-1598-JE (filed Nov. 12, 1999).
109. See Bowsher v. Synar, 478 U.S. 714, 726 (1986); Springer v. Philippine Islands, 277 U.S. 189, 202 (1928).
110. See Bowsher v. Synar, 478 U.S. 714, 726 (1986); Springer v. Philippine Islands, 277 U.S. 189, 202 (1928).
111. See generally Appellant's Brief (on file with author).
112. See U.S. CONST, art. II, § 1, art. I, § 1.
113. H.R. 2466, 106th Cong. (1999).
114. See Anti-Environmental Mining Riders and the 2nd Session of the 106th Congress, MINEWIRE (Mineral Policy Center, Wash., D.C.), Mar. 3, 2000, at 2 [hereinafter Mineral Policy Center].
115. H.R. 2466, § 337(a), 106th Cong. (1999).
116. It Is not clear how expansions of existing mines will be classified under the new rule. How they are ultimately classified is significant because many new mines are merely expansions of existing projects. If expansions proposed after November 7, 1997 are not classified as new mines, they will be exempt from the millsite provision. See Mineral Policy Center, supra note 88, at 2.
117. The millsite provision will not apply to proposals made before November 7, 1997, even if they have not yet been approved. See id. Originally, the exemption would apply only to projects proposed after May 1999. Moving the exemption date back to November 1997 subjects at least 40 mines to the millsite provision that would otherwise have been exempt. See id. Numbers from the DOI indicate that there are currently 338 proposed mines awaiting approval; of these at least 40 have been proposed since November 1997. See id. 92. Under Section 401 of the Clean Water Act (CWA), the state is required to certify that all activities that may result in discharge into navigable waters are in compliance with applicable water quality laws set forth in the CWA. 33 U.S.C. §1341 (2000).
118. See Okanogan Highlands Alliance v. Department of Ecology & Battle Mountain Gold, 97-146, No. PCHB 97-146 (Wash. Pol. Control Bd.).
119. See id.
120. See id.
121. BMG is currently challenging that decision in state court.
122. See generally Lighthawk, supra note 39; Editorial, supra note 49.
123. 43 U.S.C. § 1716 (2000).
124. 43 U.S.C. § 1732 (2000).
125. Crown Jewel, supra note 1, at 3.
126. Id. at 2n.4.
127. 30 U.S.C. § 23 (2000)("A mining-claim . . . may equal, but shall not exceed . . . .").
128. See infra Part I.B.
129. See Crown Jewel, supra note 1, at 2 n.4. For a lengthier discussion of this proposal see Flynn, supra note 27, at 333-36.
130. See Crown Jewel, supra note 1, at 2 n.4. For a lengthier discussion of this proposal see Flynn, supra note 27, at 333-36.
131. See Flynn, supra note 27, at 334.
132. Once land is withdrawn from mineral entry, new claims cannot be made. However, existing claims, so long as they were in compliance with the law prior to withdrawal, are still valid. See Flynn, supra note 27, at n.157 (citing United States v. W.E. Polk, A-30859, at 4, SO-1968-24, Mining (Apr. 17, 1968)).
133. Once land is withdrawn from mineral entry, new claims cannot be made. However, existing claims, so long as they were in compliance with the law prior to withdrawal, are still valid. See Flynn, supra note 27, at n.157 (citing United States v. W.E. Polk, A-30859, at 4, SO-1968-24, Mining (Apr. 17, 1968)).
134. Originally, denying a patent application did not void a claim; rather, an owner could retain ownership of the claim while continuing to develop the requisite proof. In 1960, the Supreme Court's holding in United States v. Carlisle, 67 I.D. 417 (1960) changed that rule. Now, once a patent application is denied, the claimant's status is relegated to that of an explorer.
135. See Flynn, supra note 27, at 334.
136. See id.
137. See Crown Jewel, supra note 1, at 2. The BLM has issued a proposed rule that would essentially codify the Crown Jewel decision and prevent claimants from circumventing the Mining Law's limitation on the number of millsite acres a claimant may locate. See 64 Fed. Reg. 47,023, part 3832 (proposed Aug. 27, 1999).
138. See Crown Jewel, supra note 1, at 2. The BLM has issued a proposed rule that would essentially codify the Crown Jewel decision and prevent claimants from circumventing the Mining Law's limitation on the number of millsite acres a claimant may locate. See 64 Fed. Reg. 47,023, part 3832 (proposed Aug. 27, 1999).
139. Crown Jewel, supra note 1, at 2 n.4.
140. 942 F.2d 1427 (9th Cir. 1991).
141. Boise Cascade Corp., 942 F.2d at 1432; see also J.G. SUTHERLAND, STATUTORY CONSTRUCTION § 46.06 (5th ed. 1992)
142. Boise Cascade Corp., 942 F.2d at 1432; see also J.G. SUTHERLAND, STATUTORY CONSTRUCTION § 46.06 (5th ed. 1992)
143. 92 U.S. 733 (1876).
144. Id. at 740.
145. See United States v. City & County of San Francisco, 310 U.S. 16, 28 (1940); see also Crown Jewel, supra note 1, at 2 n.4.
146. See United States v. City & County of San Francisco, 310 U.S. 16, 28 (1940); see also Crown Jewel, supra note 1, at 2 n.4.
147. See LESHY, supra note 3, at 62; see also Crown Jewel, supra note 1, at 62.
148. See LESHY, supra note 3, at 62; see also Crown Jewel, supra note 1, at 62.
149. See United States v. Charlestone Stone Prods. Co., 426 U.S. 604, 611 (1978).
150. See United States v. Noguelra, 403 F.2d 816, 823 (9th Cir. 1968).
151. See LESHY, supra note 3, at 62-63.
152. See Flynn, supra note 27, at 334.
153. See infra Part I.A.
154. See Flynn, supra note 27, at 348.
155. See id. at 347 n.216.
156. See id.
157. 43 U.S.C. §§ 1701-1785 (2000); see also Crown Jewel, supra note 1, at 3.
158. 43 U.S.C. §§ 1701-1785 (2000); see also Crown Jewel, supra note 1, at 3.
159. 43 U.S.C. §§ 1701-1785.
160. Id. § 1732(a).
161. Id. § 1702(c).
162. Id.
163. Id.
164. Mining projects approved under the Mining Law are removed from FLPMA's requirements. 43 U.S.C. § 1732(a) (2000). FLPMA provides that where a tract of land has been dedicated to specific uses according to any other provision of law, it shall be managed in accordance with such law. See id.
165. 43 U.S.C. §§ 1716(a), 1732(b).
166. Id. § 1716(a). Regulations for land exchanges involving USFS land are codified at 36 C.F.R. § 254 (2000), whereas regulations regarding the exchange of BLM lands, are codified at 43 C.F.R. § 2200 (2000).
167. 43 U.S.C. § 1701(a)(1) (2000).
168. Id. § 1732(b).
169. See 43 C.F.R. § 2920.1-1 (2000) (stating that, "any use not specifically authorized under other laws and regulations and not specifically forbidden by law may be authorized under this part."). Note, however, that proposals for special use in the national forests must be approved by the USFS. USFS approval of special-use permits Is governed by 36 C.F.R. § 251.52 (2000).
170. 43 C.F.R. § 2920.1-1(a) (2000).
171. See id. Preamble-§ 2920.
172. See id. § 2920.7(b)(2).
173. Mineral projects proposed on USFS land are unlikely unless the applicant and the agency arrange a land exchange. The USFS is allowed to grant special-use permits in national forests in accordance with the Organic Act, 16 U.S.C. §§ 473-481 (partially repealed 1976), and 36 C.F.R. § 251.52 (2000). However, no special-use permits are to be issued for permanent and exclusive uses, 36 C.F.R. § 251.54(e)(1)(iv), nor for the disposal of solid waste, 36 C.F.R. § 251.54(e)(1)(ix).
174. Mineral projects proposed on USFS land are unlikely unless the applicant and the agency arrange a land exchange. The USFS is allowed to grant special-use permits in national forests in accordance with the Organic Act, 16 U.S.C. §§ 473-481 (partially repealed 1976), and 36 C.F.R. § 251.52 (2000). However, no special-use permits are to be issued for permanent and exclusive uses, 36 C.F.R. § 251.54(e)(1)(iv), nor for the disposal of solid waste, 36 C.F.R. § 251.54(e)(1)(ix).
175. Mineral projects proposed on USFS land are unlikely unless the applicant and the agency arrange a land exchange. The USFS is allowed to grant special-use permits in national forests in accordance with the Organic Act, 16 U.S.C. §§ 473-481 (partially repealed 1976), and 36 C.F.R. § 251.52 (2000). However, no special-use permits are to be issued for permanent and exclusive uses, 36 C.F.R. § 251.54(e)(1)(iv), nor for the disposal of solid waste, 36 C.F.R. § 251.54(e)(1)(ix).
176. FLPMA declares that it is the policy of the United States that "public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmospheric, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition; that will provide food and habitat for fish and wildlife and domestic animal; and that will provide for outdoor recreation and human occupancy and use." 43 U.S.C. § 1701(a)(8) (2000). For an in-depth discussion of modern federal land law, see Maria Mansfield, A Primer of Public Land Law, 68 WASH L. REV. 801 (1993).
177. See 43 U.S.C. §§ 1732(a), 1702(c) (2000) (mandating and defining multiple use); see also 43 U.S.C. § 1716(1) (2000) (requiring that the public interest be considered in exchanging public lands).
178. See id. § 1701(a)(9).
179. 30 U.S.C. §§ 29, 37 (2000). In addition to receiving cheap land, miners under the Mining Law of 1872 also receive free minerals. The Mining Law does not require royalty payments for minerals removed from federal lands. This is entirely unique to the mining industry; all others users of federal lands are required to pay for the land they use and for the resources they extract. For example, ranchers are required to pay monthly grazing fees, logging companies bid on timber sales, coal producers pay an 8% royalty and are required to pay for land restoration, and the offshore oil and gas industry is required to pay a 12.5% royalty for the minerals it extracts. See Michael Satchell, The New Gold Rush, U.S. NEWS AND WORLD REPORT, Oct. 28, 1991, at 46.
180. See 43 U.S.C. § 1701(a)(1) (2000).
181. See MINERAL POLICY CENTER, THE LAST AMERICAN DINOSAUR: THE 1872 MINING LAW 3, available at .
182. In 1998, Congress had to allocate $65 million to prevent the New World Mine from being developed directly adjacent to Yellowstone National Park. See id.
183. See id. at 1.
184. See 43 U.S.C. § 1701 (2000).
185. See MINERAL POLICY CENTER, supra note 147, at 4. See generally CARLOS D. DAROSA & JAMES S. LYON, GOLDEN DREAMS. POISONED STREAMS ch. 3 (1997); Lighthawk, supra note 39; Young, supra note 36.
186. See MINERAL POLICY CENTER, supra note 147, at 4. See generally CARLOS D. DAROSA & JAMES S. LYON, GOLDEN DREAMS. POISONED STREAMS ch. 3 (1997); Lighthawk, supra note 39; Young, supra note 36.
187. See MINERAL POLICY CENTER, supra note 147, at 4. See generally CARLOS D. DAROSA & JAMES S. LYON, GOLDEN DREAMS. POISONED STREAMS ch. 3 (1997); Lighthawk, supra note 39; Young, supra note 36.
188. See MINERAL POLICY CENTER, WHO OWNS THE GOLD MINES? (1997).
189. Charles Pope, Political Ground May Be Shifting Under Mine Operators, CQ WEEKLY, Sept. 11, 1999, at 2114.
190. The shift in the administration's posture is already being felt. With regards to the Imperial Project, described supra at page 834, the Secretary of the Interior just recently sent a memo to the BLM explaining that the Mining Law does not convey a statutory right to mine. See Memorandum from the DOI Office of the Solicitor to the BLM, Regulation of Hardrock Mining 1 (Jan. 3, 2000) (on file with author).