New bill would challenge decision that blocked Rosemont copper mine

April 25, 2023

U.S. Sen. Catherine Cortez Masto (D. NV) drafted a bill that would help ensure mining companies can use established mineral claims to create tailings deposits on neighboring federal lands. The bill is in response to a decision from the 9th Circuit Court of Appeals that blocked the Rosemont copper mine in Arizona on the grounds that Rosemont failed to prove it had mineral rights on the lands where waste rock was to be buried.

The ruling from the 9th Circuit could have wide ranging impacts on the mining industry as opponents of the project could use the ruling to stop future projects.

The Associated Press reported that Masto’s bill would amend a 1993 budget reconciliation act but primarily clarifies definitions of activities and rights central to the 1872 Mining Law.

Masto introduced the bill with Republican Sen. James Risch of Idaho, her office told The Associated Press. 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.

The 9th Circuit’s ruling has been enforced twice in Nevada including at Lithium America’s Thacker Pass Mine. In that case, 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 in March while the bureau works to bring the project into compliance with federal law.

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 to The Associated Press.

Republican Sen. Mike Crapo of Idaho and Sen. Kyrsten Sinema of Arizona, an independent, have signed on to the bill as co-sponsors.

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.

In March, 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.

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.

Photo: Thacker Pass Mine


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