Courts now following nonsensical 9th Circuit panel precedent on mining claims validity

April 15, 2023
Ben Marquis

In 2022, a three-judge panel of the 9th Circuit Court of Appeals upheld a district court's reinterpretation of a mining law that has been in place for 150 years that would serve to block approval for a proposed copper mine in Arizona, according to the Daily Caller.

Since then, two other district court judges have now cited that decision as precedent in two separate cases involving proposed mines, in one instance blocking the project completely while in the other simply kicking it back to the federal government for reconsideration while construction continues, the outlet reported.

Mineral rights and valid mining claims

In May 2022, in a 2-1 decision, the 9th Circuit panel affirmed a district court's ruling in favor of environmentalists to block the proposed Rosemont copper mine in Arizona over concerns about where the waste rock from the mining operation would be dumped.

At issue was the Mining Act of 1872, which allows for prospecting and claim staking and mining operations on federal land that contains "valuable mineral deposits," and also allowed for those mining operations to make incidental use of surrounding land without valuable mineral deposits for "mill sites" and waste deposits like "tailings ponds and leach pads" or "rock and soil dumps," depending upon the particular mineral mined.

Also at issue was the Surface Resources and Multiple Use Act of 1955, which limited activities on non-mineral land claimed by mine owners to only those purposes directly linked to the mining operation.

However, it was reasoned by the district judge, and affirmed by the circuit panel, that because the non-mineral land the Rosemont Copper Company planned to use to dump waste rock did not contain "valuable mineral deposits," the company, therefore, had no valid claim to that land and the U.S. Forest Service had acted unlawfully in granting its approval for such use.

Precedent set and acted upon

Now, the Associated Press reported that a district judge in Nevada has cited that Rosemont ruling by the 9th Circuit panel to justify vacating the approval granted by the Bureau of Land Management for a molybdenum mine in the state proposed by a company known as Eureka Moly LLC.

It was similarly reasoned in the 18-page ruling from Judge Larry Hicks that because the land where the proposed tailings ponds and waste rock dump would be located had no valuable mineral deposits, Eureka Moly lacked a valid claim to make use of it and the BLM had erred in granting its approval of the company's plans.

Hicks wrote that there was "no meaningful difference" between the arguments of the Forest Service that were rejected by the 9th Circuit "and BLM’s arguments here." As such, the judge ruled that "BLM cannot skirt the Mining Law requirement that valuable mineral deposits must be found in order to occupy the land."

Less than two months prior to that ruling, in a district court in Nevada, Judge Miranda Du had also cited the 9th Circuit's Rosemont ruling in a 49-page ruling on a challenge against the BLM's approval of a proposed lithium mine near Thacker Pass in the state by the Lithium Nevada Corporation.

However, instead of vacating the BLM approval, she allowed the already-started construction process to continue and remanded the issue back to the agency with instructions to more thoroughly determine if there were any valuable mineral deposits, and therefore a valid claim, in the land that would be used for the mining operation's waste disposal.

None of this makes any logical sense

These rulings, if ultimately allowed to stand as precedent, threaten to completely upend and render virtually impossible how mining operations are conducted in this country going forward.

Consider the contradictory nature of the reasoning: If an area of land has no valuable minerals, a mining company has no claim to use it for waste disposal; but if that land did contain valuable mineral deposits and a company's claim was valid, the company would actually mine it for those minerals and not cover it up with more waste rock.

The particularly ironic aspect of these rulings is that they completely pull the rug out from under President Joe Biden's climate agenda and desire for electric vehicles to replace normal gas-powered vehicles, given that copper and lithium and molybdenum are all vital minerals necessary for the construction of batteries and windmills and solar panels, among other things.

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