Important news for mining companies with existing or future projects in the California desert

BLM releases maps showing 1.3 million acres of proposed mining withdrawal

On January 13, 2017, the U.S. Bureau of Land Management (“BLM”) released maps showing the areas that BLM, on December 28, 2016, proposed to withdraw from mining. The withdrawal is designed to “protect nationally significant landscapes with outstanding cultural, biological, and scientific values” and is part of the Desert Renewable Energy Conservation Plan (“DRECP”).

What does the proposed withdrawal do?
At this time the withdrawal is only a proposal, not a final action. It initiates a two-year environmental review period (“study period”), during which BLM will prepare an Environmental Impact Statement and issue a final decision.

If BLM decides to proceed with the withdrawal after the study period, that decision will withdraw up to 1,337,904 acres of public lands from any location and entry under the United States mining laws for 20 years. The final decision could withdraw fewer (but not more) than the 1,337,904 acres identified in the proposal.

During the study period, which can last up to two years, the notice has the effect of “segregating” the lands from mineral entry. That is, even though the notice is just a proposal, it automatically withdraws the 1,337,904 acres described in the notice from mineral entry and location for the duration of the study period, not to exceed two years.

If BLM decides not to proceed with the withdrawal, the acres temporarily segregated during the study period will once again become available for mineral location and entry.

What lands are affected?
The proposed withdrawal and the temporary segregation apply to 1,337,904 acres of public lands. BLM has released maps showing the withdrawal areas, and the formal withdrawal notice contains legal descriptions (township/range/section information). You may also want to read BLM’s press release about the withdrawal.

What types of mining operations are affected?
The proposed withdrawal would, if finalized, prohibit location and entry under the United States mining laws and regulations, including the General Mining Law of 1872, the Surface Resources Act of 1955, the Federal Land Policy and Management Act of 1976, and BLM’s mining regulations (43 CFR Part 3800). The temporary segregation of up to two years also affects location and entry under these laws and regulations.

Neither the proposed withdrawal nor the temporary segregation affects leasing under the mineral and geothermal leasing laws or disposal under the mineral material sales laws (e.g., sand and gravel).

Are only new mining operations affected, or also existing ones?
The proposed withdrawal and temporary segregation are subject to “valid existing rights,” meaning that they apply only to new operations. However, existing operations may require a validity determination to be considered exempt.

Operators should pay close attention to whether the proposed withdrawal areas affect lands that are used (or might be used) for site access, water development or conveyance, power lines, expansion areas, or other uses. These uses may also be affected by the withdrawal.

How long would the withdrawal last if it is finalized?
20 years.

What options does the new administration and Congress have?
At the end of the study period, the new presidential administration could decide to go forward with the withdrawal or abandon it. Congress could step in and pass a law that prohibits or restricts the withdrawal, even before the two-year study period is up.

What can you do?
The withdrawal notice starts a two-year study period, during which BLM will prepare an Environmental Impact Statement (“EIS”) under the National Environmental Policy Act (“NEPA”). BLM has provided a 90-day initial (“Scoping”) comment period on the issues to be considered in the EIS. Scoping comments must be submitted to BLM on or before March 28, 2017.

You may also contact your congressional representatives.

Where should you turn for more information or help?
If you have questions about how the proposed withdrawal affects you or what you can do about it, we encourage you to contact us. We are public land lawyers who know how to assess and address the impacts of BLM policies and decisions on mining operations. We are intimately familiar with the BLM, mining laws, DRECP, and withdrawal process.

 


Kerry Shapiro
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, construction and building materials industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry Shapiro at kshapiro@jmbm.com.

Matthew J. Sanders
Matthew Sanders is Of Counsel at Jeffer Mangels Butler & Mitchell LLP and a leading environmental and natural resources attorney. He represents the surface mining industry in a wide variety of permitting, counseling, and litigation matters. Contact Matthew Sanders at msanders@jmbm.com.

JMBM’s Natural Resources & Mining Practice Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.