April 2022

On March 31, 2022, the U.S. Department of the Interior (“DOI”) published a Request for Information (“ROI”) to Inform the Interagency Working Group on Mining Regulations, Laws, and Permitting (“Working Group”). The ROI follows the establishment of the Working Group by DOI in February, based upon Presidential Executive Order (“E.O.”) 14017 “Executive Order on America’s Supply Chains,” and recommendations to form the Working Group, contained within the 100-Day Reports required under E.O. 14017. The goal of these efforts is to reform hardrock mining laws, regulations, and permitting policies which were born in the earliest days of the California Gold Rush and codified within the Mining Law of 1872. To this day, hardrock mining on federal public lands is governed by said Mining Law.

The Working Group—which is chaired by DOI—includes representatives from the Department of Agriculture, through the U.S. Forest Service; the Environmental Protection Agency; the Army Corps of Engineers; the Departments of Commerce, Energy, and State; the Council on Environmental Quality; and the National Economic Council.

According to the ROI, published within the Federal Register, “The [Working Group] intends to convene agency experts and receive input from the public in order to assess the adequacy of existing laws, regulations, and permitting processes, determine whether changes to those are necessary to meet the goals laid out in the recommendation from the E.O. 14017 100-Day reviews, and if it concludes that changes are necessary, make recommendations to the appropriate Federal agencies or Congress on how to implement those changes.” (87 FR 18811). The Working Group will consider a broad range of mining-related issues, which include, but are not limited to, the following:

  • Would alternatives to the existing claim system, such as leasing, or adjustments to the current system, such as incorporating mining into comprehensive federal lands use assessments and planning, lead to better outcomes for communities, the environment, and a secure domestic supply of minerals? If so, how should such an alternative or adjusted system be structured?
  • Are there international mining best practices or standards that the United States should consider adopting, or encouraging the U.S. mining industry to adopt? If so, which practices or standards and what improvements or benefits would they provide?
  • If the U.S. were to place royalties on hardrock minerals produced from public domain lands, what factors should be considered and what structures would best protect the interests of the taxpayer while responsibly incentivizing production? In addition, if royalties were collected, how should those revenues be allocated?
  • What changes to financial assurance requirements for mining should be considered?
  • How might the U.S. best support reclamation of existing Abandoned Mine Lands (“AML”) sites including the development of meaningful good Samaritan proposals as well as remining and reprocessing of mine tailings and waste, where feasible?
  • What would a successful mine reclamation program include? Are there existing programs that the U.S. should adopt?
  • How can Tribes and local communities be effectively engaged early in the process to ensure that they have meaningful input into the development of mine proposals?
  • How could updates to the Mining Law of 1872, or other relevant statutes, help provide more certainty and timeliness in the permitting process?
  • What improvements can be made to the mine permitting process without reducing opportunities for public input or limiting the comprehensiveness of environmental reviews?
  • What types of incentives would be appropriate to encourage the development of critical minerals, and what is the proper definition of a “critical mineral mine”?
  • Are there areas that should be off-limits from mining, and if so, how should those be identified?
  • What science and data should be included in any decisions to permit and develop mines?

In an effort to fully inform its deliberations, the Working Group plans to hold a number of roundtable discussions, both virtually and in-person, with various stakeholders, including the following: Native American Tribes; State and local governments; Environmental Justice groups; Labor organizations; Various non-governmental organizations representing environmental, conservation, and recreation interests; Scientists; Mining Law regulatory and permitting experts; and Representatives of the hardrock mining industry. Any interested member of the public, including representatives from the groups discussed herein, may submit comments through 11:59 p.m. on July 31, 2022.

We represent energy and natural resource clients and can advise companies during all stages of permitting, entitlement, litigation, and compliance. Should you require assistance with crafting and submitting public comments related to the Mining Law reform efforts discussed herein, please contact us at [email protected] to discuss how we can help.

For more information on the DOI Request for Information, click Here.

For more information on Presidential Executive Order 14017, click Here.

For more information on DOI’s announcement of the Working Group launch, click Here.

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