Recommendations to Improve Mining on Public Lands

Developed by the Biden-Harris Administration’s

Interagency Working Group on Mining Laws,

Regulations, and Permitting

Recommendations

to Improve Mining

on Public Lands

FINAL REPORT SEPTEMBER 2023

Table of Contents

I. Executive Summary .......................................................................................................................................................................... 2

II. Purpose of the Mineral IWG and Report ...................................................................................................................... 12

III. Setting the Context of Mining in the U.S. ....................................................................................................................... 18

A. Background of The Mining Law ....................................................................................................................................................................... 18

B. Impacts on Tribes from Historical Mining Operations ..................................................................................................................... 21

IV. Mining Operations and Management ................................................................................................................................ 23

A. Modern Mining Operations ................................................................................................................................................................................ 25

B. Mining Waste Management Standards ........................................................................................................................................................ 28

C. Inspection and Enforcement Authorities ................................................................................................................................................... 30

D. Reclamation of Mined Lands .............................................................................................................................................................................. 33

V. Mining Law and System Today .............................................................................................................................................. 35

A. Mining Law. .................................................................................................................................................................................................................... 36

B. Mining Regulations .................................................................................................................................................................................................... 43

C. Methods for removing land from operation of the mining law ................................................................................................. 46

VI. Mine Permitting ............................................................................................................................................................................... 47

A. Environmental Review and Permitting Process ..................................................................................................................................... 48

B. Application of BLM’s and USFS’s different standards ........................................................................................................................ 51

C. Data on Environmental Review and Permitting Timeframes ....................................................................................................... 52

D. Best Practices ............................................................................................................................................................................................................... 57

VII. Public Engagement ......................................................................................................................................................................... 61

A. Current Process ......................................................................................................................................................................................................... 61

B. Best Practices ............................................................................................................................................................................................................... 63

VIII. Tribal Consultation and Engagement ................................................................................................................................. 67

A. Treaty Rights ................................................................................................................................................................................................................ 68

B. Government-to-Government Consultation ............................................................................................................................................ 70

C. Challenges ...................................................................................................................................................................................................................... 73

IX. Royalties & Revenues ................................................................................................................................................................... 81

A. Background .................................................................................................................................................................................................................... 81

B. Royalty Analysis ....................................................................................................................................................................................................... 81

C. Claim Maintenance Fee Analysis ...................................................................................................................................................................... 84

D. Small Miner Waiver ................................................................................................................................................................................................. 85

X. Financial Assurances and Bonds ............................................................................................................................................ 86

A. BLM Financial Assurance Requirements ..................................................................................................................................................... 86

B. USFS Financial Assurance Requirements ............................................................................................................................................ 88

C. EPA CERCLA Section 108(b) hardrock mining review ................................................................................................................... 89

XI. Additional Issues and Needs Raised to Revitalize Domestic Mining .............................................................. 90

A. U.S. Bureau of Mines ............................................................................................................................................................................................... 90

B. Access to Data ............................................................................................................................................................................................................ 91

C. Research, Science & Technology ..................................................................................................................................................................... 93

D. Training and Education .......................................................................................................................................................................................... 95

XII. RECOMMENDATIONS ............................................................................................................................................................ 96

A. Access to and Use of Federal Lands ............................................................................................................................................................ 99

B. Fair Return and Diligent Development .................................................................................................................................................... 103

C. Permitting Process Recommendations .................................................................................................................................................... 107

D. Increasing Transparency ..................................................................................................................................................................................... 115

E. Tribal Recommendations .................................................................................................................................................................................. 119

F. Operational Standards ........................................................................................................................................................................................ 125

G. Mine Closure & Closed Mines ....................................................................................................................................................................... 128

H. Government and Private Sector Capacity ............................................................................................................................................. 135

Appendix I: List of Acronyms ......................................................................................................................................................... 141

Appendix II: Summary of Public Comments Received from March 31, 2022, Federal Register

Request for Information .................................................................................................................................................................... 144

I. Executive Summary

The Charge

The global economy is undergoing a rapid transition to carbon pollution-free electricity development.

This transition is fueling a rapid increase in demand for responsibly sourced minerals, and the United

States must address mineral supply chain issues if we are to meet our national climate, infrastructure,

and global competitiveness goals. Critical minerals are an important subset of non-fuel minerals that

are used to manufacture electric vehicle batteries, semiconductors, solar panels, defense products,

healthcare equipment, and a host of other essential applications. They are essential to the economic

and national security of the United States, and are particularly vulnerable to supply chain disruptions.

The American public must have confidence that the minerals and materials used in our electric vehicle

batteries, smartphones, solar panels, and other technology are sourced under responsible social,

environmental, and labor standards—and that the Federal government wisely stewards our shared

natural resources for both Americans today and future generations. To meet rapidly increasing

demand for minerals, the United States, in coordination with our global partners, must rapidly and

dramatically increase responsible mineral production. We must also learn from the lessons of the past

and ensure that our actions do not come at the expense of human health or workplace safety; Tribal

consultation or community engagement; or the air, water, and other crucial resources upon which

we all depend.

On February 24, 2021, President Biden Issued Executive Order 14017 – Securing America's Supply

Chains, instructing Federal Departments and Agencies to conduct a supply chain review and report

back, within 100 days, on the steps needed to strengthen and secure our supply chains. Consistent

with the recommendation of the 100-day review, on February 22, 2022, the Department of the

Interior announced the launch of an Interagency Working Group (IWG) comprised of experts in

mine permitting and environmental law from across the Federal government. This IWG was charged

with reviewing laws, regulations, policies, and permitting processes pertaining to hardrock mineral

development.

The IWG’s efforts also address the Bipartisan Infrastructure Law (Public Law 117-58), which requires

the Department of the Interior and the U.S. Department of Agriculture to submit a report to

Congress identifying legislative and regulatory recommendations to increase the timeliness of

permitting activities for exploration and development of domestic critical minerals.

This report is the direct result of both the presidential and congressional direction to address how

the United States can more swiftly and responsibly produce the minerals needed to meet this global

transition—and to do so without compromising our fundamental principles of incorporating

community input and supporting a living wage—or compromising the quality of the air we breathe,

water we drink, or landscapes and wildlife we cherish.

Hard Truths

This report addresses four hard truths implicated by this charge: First, demand for hardrock minerals,

and critical minerals in particular, is growing at an exponential rate. According to the International

Energy Agency, already announced clean energy policies will cause total mineral demand to double by

2040, and in order to meet climate goals by 2040 that demand would double again.

Certain minerals

would be in even higher demand: meeting climate goals could require 19 times more nickel, 21 times

more cobalt, 25 times more graphite, and 42 times more lithium than produced today.

Hardrock

minerals like copper and gold, which are not classified as “critical” by the U.S. Geological Survey, are

also in high demand and subject to intense development pressure.

International Energy Agency, “The Role of Critical Minerals in Clean Energy Transitions,” May 2021.

https://www.iea.org/reports/the-role-of-critical-minerals-in-clean-energy-transitions.

Id.

Second, the United States depends heavily on foreign nations—in some cases non-allied nations—to

produce and refine many of the minerals that are in high demand and critical to our economic and

national security. That dependence will likely increase in the absence of Federal leadership. Mineral

supply chains, moreover, are vulnerable to disruption. While the United States works closely with

strategic allies who have robust mining industries, like Canada and Australia, the U.S. is heavily reliant

on Chinese imports for many of these minerals in processed form. As stated in the Biden-Harris

Administration Fundamental Principles for Domestic Mining Reform, “to meet current and future

demand, and to break our reliance on single sources while creating good jobs for American workers,

mining reform should assure that a reliable and sustainable supply of critical minerals can be provided

both through environmentally and socially responsible mining and processing projects and other

sustainable sources.”

Third, efforts to address mineral supply chain challenges are complicated by the General Mining Law

of 1872, a Reconstruction Era law promoting free access to minerals that are found on Federal land.

The General Mining Law, signed into law by President Ulysses S. Grant, has largely gone unchanged

despite 151 years of profound social and scientific change. The Law fails to direct mineral exploration

and development towards areas that are appropriate for development and away from sensitive

resources. It fails to promote timely development of mineral claims. It fails to promote early and

meaningful engagement between mining interests, government agencies, and potentially impacted

communities. And it fails to provide the American taxpayer with any direct financial compensation for

the value of hardrock minerals extracted from most publicly owned lands. Overlaying the General

Mining Law’s promise of free and unfettered access to minerals on Federal land is a complex web of

more recent laws enacted to protect air, water, wildlife, communities, and public health. These laws

were enacted to provide balance, promote thoughtful and informed decisions, protect Americans,

and build confidence that development is conducted with proper safety standards and oversight.

Better integration, and reconciliation of competing objectives, is critical to strengthening America’s

mineral supply chain.

Fourth, these laws are not self-executing. Sustained underinvestment in the technical resources and

skilled agency staff needed to address a rapid increase in mineral development proposals leads to

under-engagement between agency staff and prospective miners. Under-engagement leads to

incomplete or inadequate permit applications, the requests for supplemental information they

engender, and the delays that result. Staffing shortages undermine efforts to coordinate across

agencies, inviting inconsistency, redundancy, inefficiency, and delay. And of course, inadequately staffed

Biden-Harris Administration Fundamental Principles for Domestic Mining Reform, Feb, 22, 2022.

https://www.doi.gov/sites/doi.gov/files/biden-harris-administration-fundamental-principles-for-domestic-mining-reform.pdf

and under-resourced agencies are ill-equipped to swiftly process permit applications and associated

environmental reviews.

The charge to the Interagency Working Group that prepared this report is therefore both

correspondingly simple and staggeringly complex: expand domestic mineral production in a timely

manner to ensure that “our actions are conducted with strong environmental, sustainability, safety,

Tribal consultation and community engagement standards so that the American public has confidence

that the minerals and materials used in our electric vehicles, smartphones, solar panels and other

technology are sourced under responsible social, environmental and labor standards and that the

Administration wisely stewards our shared natural resources for Americans today and future

generations.”

The Interagency Working Group’s Response

In response to this challenge, the IWG, which included representatives from numerous Federal

departments, agencies, and offices, met with the mining industry, electrical vehicle and battery

manufacturers, labor leaders, subject matter and scientific experts both within and outside of

government, and non-governmental organizations. The Department of the Interior, on behalf of the

IWG, issued a Request for Information, collecting and reviewing over 26,000 comments. The IWG

also held dozens of public listening sessions, Tribal listening sessions, and formal consultations with

Tribal government officials. The IWG then formed six sub-working groups to study major challenges

and opportunities in more depth. After much work and careful consideration of diverse expert and

stakeholder comments, the IWG formulated a suite of sixty-five recommendations addressing six

broad issue categories: (1) improving mineral exploration and development planning and permitting;

(2) increasing engagement with stakeholders and potentially affected communities; (3) expanding

consultation and engagement with Tribes; (4) obtaining fair compensation for taxpayers for minerals

extracted from Federal lands; (5) protecting taxpayers from the cost of abandoned mine reclamation;

and (6) revitalizing domestic mining and other issues.

The IWG report provides a comprehensive review of our nation’s rapidly evolving need for minerals,

the statutes and regulations governing access to minerals and mineral development, the challenges

that must be overcome, and a suite of recommendations for advancing these goals. Based on this

review, the IWG concluded that the post-Civil War mining law, overlaying environmental regulations,

and under-resourced Federal agencies charged with harmonizing and integrating these laws all require

updating if the United States is to swiftly, efficiently, sustainably, and ethically address the pressing

mineral supply chain challenges of today.

Id.

Summary of Recommendations

The IWG’s recommendations respond to the six broad categories of issues listed above and call for

action at three distinct but overlapping levels of government: congressional action to amend existing

laws and increase Federal agency capacity to better reflect the imperatives of today; regulatory action

by Federal agencies to coordinate and streamline mineral exploration and development in accordance

with social and environmental imperatives; and policy actions that can be taken by Federal agencies to

promote swift, sustainable, responsible, and efficacious mineral supply chains.

1. Improving Mineral Exploration and Development Planning and Permitting

The IWG encourages efforts to improve mineral exploration and development plan submission quality

by providing clearer direction and facilitating earlier agency engagement. The most common cause of

mine permitting delays involves “mine plans of operation [that] were incomplete or vague, which

required a request for additional information before the review process could continue.”

The IWG

believes that Federal agencies can best promote complete and high-quality applications by providing

earlier and better direction to prospective mineral developers. The IWG therefore encourages the

Bureau of Land Management (BLM) and U.S. Forest Service (USFS) to update and align their

regulations and guidance to provide clear direction to applicants and promote consistency across

related permitting submissions and information requests. The IWG also encourages agencies to

require pre-application meetings between applicants and agencies, to provide consistent guidance to

applicants, and to include all agencies that may be involved in mineral exploration or production

permitting at the earliest possible point. The IWG believes better direction and coordinated

requirements would help applicants anticipate and meet agency informational needs, reduce

unnecessary inconsistencies across and within agencies, improve submission quality, and lessen the

need for supplemental information requests.

The IWG recommends strengthening Federal agency capacity to process permit applications and

environmental reviews.

The second most common source of mine permitting delays involves “limited

resources allocated to the field office, such as number of staff, staff expertise, funding, infrastructure,

training, and/or computer technology.”

These challenges will compound as the demand for critical

minerals spurs additional mineral exploration and development proposals. Stated simply, even the best

U.S. Gov’t Accountability Off., GAO-16-165, Hardrock Mining: BLM and Forest Service Have Taken Some Actions to

Expedite the Mine Plan Review Process but Could Do More, 2016, p.22. https://www.gao.gov/products/gao-16-165

This report is not a budget document and does not imply support or approval of any specific action or investment. All

activities and recommendations included in the report are subject to the Administration's annual budget formulation

process, including resource constraint and policy priority considerations, as well as the availability of appropriations

provided by Congress.

Supra., note 5.

applications and required analyses will languish if Federal agencies lack the resources to meet their

statutory obligations. The IWG encourages Congress to provide Federal agencies involved in mineral

development permitting with sufficient resources to hire, train, and retain the expert staff needed to

expediently complete environmental analyses and review permit applications. Increasing agency

resources will also enable improved interagency coordination, allow for earlier and more productive

engagement between applicants and agencies, and lead to better application submissions and more

efficient decision-making.

The IWG encourages Federal land managers to identify priority mineral development and avoidance areas

and encourage mineral developers to proactively consider competing resource values. The IWG recognizes

that mining can occur only where minerals are located and that most valuable minerals are found in

localized areas. Conflicts over mining and ancillary uses are more likely to arise when mineral-rich

areas also contain other highly valuable resources. The IWG believes that much more can be done to

identify, avoid, minimize, and mitigate environmental impacts and development conflicts by better

integrating land management planning and mineral exploration and development efforts. The IWG

encourages the BLM and USFS to identify areas possessing high critical mineral resource development

potential and where mineral development is less likely to result in unacceptable impacts to known

competing resources. This effort can be modeled after programmatic planning efforts identifying

priority areas for wind and solar development, provided additional data is collected in the location of

potential mineral resources. The IWG also encourages the BLM and USFS to identify areas where

resource conflicts (e.g., the presence of threatened and endangered species habitat, drinking water

resources, and culturally sensitive areas) are likely to complicate mine development and permitting,

alerting mining interests to the likely higher expense and potential for delay associated with proposing

development in these areas. This recommendation operates in tandem with the recommendation for

Congress to develop a new leasing system for hardrock minerals on Federal lands. The IWG believes

that programmatic planning would provide greater benefits if accompanied by a transition to a leasing

system.

The IWG encourages Congress to authorize Federal land managers to withdraw sensitive lands from

availability for mineral development unless a mineral claimant agrees to adopt specified measures to avoid,

minimize, and mitigate adverse impacts. The IWG believes that proactive conflict identification alone

may be insufficient to avoid or adequately minimize impacts. Recognizing that a complete mineral

withdrawal may not be necessary or appropriate in many sensitive areas, the IWG encourages

Congress to authorize administrative withdrawals of sensitive lands from availability for future mining

claims unless the claimant first agrees to abide by development stipulations that are sufficient to

adequately protect competing resources.

2. Increasing Engagement with Stakeholders and Potentially Affected Communities

The IWG encourages Federal agencies to create mineral development analysis and permitting teams. The

IWG recognizes that many Field Offices lack experienced staff with expertise on complex mining

related issues. The IWG also recognizes that a lack of early engagement with and coordination among

agencies and stakeholders can complicate environmental analyses and the permit application review

process. The IWG encourages the Department of the Interior and the Department of Agriculture to

foster early engagement and information sharing, meaningful community and stakeholder engagement,

issue identification, and collaboration across Federal, Tribal, State, and local governments. It also

encourages the Department of the Interior (including the BLM and the U.S. Fish and Wildlife Service),

USFS, Environmental Protection Agency, and the U.S. Army Corps of Engineers to coordinate impact

analysis and permitting and look for opportunities to take full advantage of individual agency and field

office expertise to assist in coordinating and tiering their analyses.

3. Expanding Consultation and Engagement with Tribes.

The IWG strongly supports establishing stronger requirements for Tribal consultation on mineral

exploration and development proposals. These proposals often involve lands that have unique value

to Native Americans. Indeed, almost all of our Nation’s nickel, 89 percent of our copper, 79 percent

of our lithium, and 68 percent of our cobalt are located within 35 miles of Tribal reservations.

The

IWG recognizes the importance of early and meaningful Tribal engagement and encourages Congress

to direct the BLM and USFS to require agency staff to conduct meaningful, robust, and early

consultation with Tribes that may have an interest in mineral exploration or development proposals,

including where the proposed action is within a Tribe’s ancestral homeland even if it is not proximate

to the Tribe’s current reservation. The IWG also encourages the BLM and USFS to meet with

representatives from potentially affected Tribes and share information about proposed exploration

and production activities at the earliest time possible; to develop procedures and infrastructure to

guide the sharing and protection of potentially sensitive information, as appropriate under applicable

law; to encourage direct and meaningful engagement and information sharing between agencies,

Tribes, and proponents; to promote proactive efforts to avoid, minimize, and mitigate impacts to

cultural resources; and to include consideration of Indigenous Knowledge in reviews of projects. The

Federal Communication Commission maintains a system for confidentially managing sensitive site

information and for considering that information in facility siting proposals; this system may provide a

valuable model.

S. Block, “Mining Energy-Transition Metals: National Aims, Local Conflicts,” MSCI, June 3, 2021.

https://www.msci.com/www/blog-posts/mining-energy-transition-metals/02531033947.

4. Obtaining Fair Compensation for Taxpayers for Minerals Extracted from Federal Lands

The IWG encourages Congress to work with the IWG, industry, and other stakeholders to develop legislative

options to transition from the claim system to a hardrock mineral leasing system and to impose a royalty on

hardrock mineral production. The IWG recommends that Congress work with the mining industry,

Tribes, mining communities, environmental NGOs, labor, and the Administration to craft a system

that improves certainty and stability for industry, strengthens domestic mineral supply chains, advances

environmental sustainability, and fosters early and meaningful community engagement. Although

thoughtful concerns were raised by the mining industry regarding the existing hardrock leasing system

that is used on certain Federal lands, the IWG notes that hardrock leasing is the predominant method

of mineral access used by other major mining nations,

and the IWG did not receive any arguments

as to why a properly designed leasing system could not be equally successful in the United States. It

is critical that any transition from the existing system protect existing exploration and development,

while minimizing disruption. The IWG recognizes that any transition would have to be thoughtfully

managed. Careful consideration should be given to allowing prospectors to continue to stake mineral

claims during this transition to a leasing system, and a fair process should be established for the

conversion of claims to leases or other legal instruments established by Congress. Once a leasing

system is in place, mineral claimants should be required to convert claims to leases as a condition of

mine plan approval. This approach would continue to give mining interests broad latitude to investigate

potentially valuable mineral deposits while providing Federal agencies with additional tools to tailor

operational requirements to individual circumstances.

The IWG also notes that no U.S. state or major mineral producing nation grants free access to

minerals located on public land. We therefore recommend that Congress impose a variable 4- to 8-

percent net royalty on hardrock minerals produced on Federal lands. Royalties should be specific to

particular commodities (and possibly the ore grade). A royalty would ensure that American taxpayers

receive fair compensation for minerals extracted from Federal lands. A royalty could also fund mineral

development permitting programs, abandoned mine land remediation efforts, and provide resources

to State and Tribal governments that provide infrastructure and services to mining dependent

communities.

The IWG also believes that diligent development is an important part of securing fair compensation.

Accordingly, the IWG encourages Congress to amend claim maintenance fee requirements to encourage

timely mineral development. The IWG supports a more robust maintenance fees program for

undeveloped mineral claims on Federal lands. Claim maintenance fees should escalate over time and

be more frequently indexed to inflation, incentivizing timely development of valuable minerals while

U.S. Gov’t Accountability Off., GAO-21-298, Hardrock Mining Management: Selected Countries, U.S. States, and Tribes

Have Different Governance Structures but Primarily Use Leasing, 2021. https://www.gao.gov/products/gao-21-298

disincentivizing speculative claim holding. The IWG encourages Congress to direct that fee revenue

be used to fund Federal mineral development permitting and environmental review programs and

that remaining revenue be used for the Abandoned Hardrock Mine Reclamation Program established

under the Bipartisan Infrastructure Law. A more robust claim maintenance fee program would

encourage mineral development, support agency efforts to process development applications, and

discourage speculative holding of mineral claims that may complicate other land management

priorities.

The IWG also strongly supports creating a community impact fund supported by revenue derived from

mineral development. The IWG believes that a share of the proceeds from any royalty or lease revenue

generated by hardrock mineral development on Federal lands should be shared with the communities

most heavily impacted by that development. The IWG encourages Congress to enact a revenue

sharing program similar to that used for oil and gas leasing that directs a share of hardrock mineral

development revenue to the communities, including Tribal communities, most heavily impacted by

development. Funds should be available exclusively for community impact mitigation.

The IWG recognizes the urgent need for additional resource support to address abandoned hardrock

mine land sites, particularly those that impact Tribes and environmental justice communities. Unlike

coal, where companies pay up to 22.4 cents per ton of coal mined to fund unreclaimed legacy coal

mine sites, there is no similar system for hardrock mining. The IWG encourages Congress to strongly

consider adopting a 7-cent per ton fee on material displaced by hardrock mining. This fee could be

applied in conjunction with other means of funding AML reclamation.

5. Protect Taxpa yers from the Cost of

Abandoned Mine Reclamation

The IWG identified multiple opportunities to protect American taxpayers from the cost of abandoned

mine reclamation, beginning with debarring repeat bad actors. The IWG encourages Congress to follow

the example set by several Western States and authorize the BLM and USFS to prohibit approval of

any plan for mineral exploration or production where the applicant is in substantial non-compliance

with the terms of another mining-related plan or permit or in substantial non-compliance with any

health, safety, or environmental law or regulation at a domestic mining operation. This requirement

would prevent mining operators that are significantly out of compliance with mining or environmental

laws or regulations from reorganizing and obtaining additional approvals to operate without first

resolving ongoing actions. This requirement would also incentivize prompt action to address

noncompliance issues and limit government liabilities from bad actors using subsidiary corporations to

avoid closure and remediation requirements.

The IWG concluded that reforming the application of bankruptcy laws as applied to mining operations is

also an important tool for reducing taxpayer risk. The IWG encourages Congress to clarify that mine

reclamation financial assurances are not available to creditors during bankruptcy proceedings,

minimizing the risk that reclamation obligations will be borne by American taxpayer. The IWG further

recommends that, in cases where the government has completed abandoned mine land reclamation

on behalf of a bankrupt operator and there are remaining financial assurance funds, Congress direct

that unspent funds, if and when they exist, are transferred to the Abandoned Hardrock Mine Program

and used to support abandoned mine cleanup elsewhere on the public lands.

The IWG recognizes the tremendous cost involved in remediating abandoned mine lands and

encourages creative solutions to increase partnerships and leverage financial resources. Accordingly,

the IWG believes that Congress should enact Good Samaritan legislation to facilitate abandoned mine land

remediation. Legislation should limit liability for any organization seeking to undertake the voluntary

cleanup and closure of abandoned mine sites. Liability-limiting legislation should not be available to any

entity that was previously involved in operations at the contaminated site, and liability waivers should

not extend to operations that are not directly related to addressing the legacy site.

6. Revitalizing Domestic Mining and Other Issues

The IWG strongly encourages efforts to incentivize re-mining and re-development of brownfield sites and

sites adversely impacted by prior mining activity. The Government Accountability Office reports that

there are at least 532,652 abandoned hardrock mine features on lands under Forest Service, BLM,

Park Service, or EPA jurisdiction.

Thousands of these sites continue to discharge toxic chemicals into

nearby waters or into the air. We further recognize that modern mining operations involve pollution

prevention and treatment plans that were unheard of 100 or even 50 years ago. Additionally, we

understand and appreciate that abandoned mine reclamation programs are grossly underfunded and

that creative financing is needed if we are to meaningfully address abandoned mine lands. The IWG

believes that increased partnerships between mining companies and Federal agencies can incentivize

re-mining and re-processing of contaminated mine lands. If done with appropriate safeguards, re-

mining and re-processing may represent an opportunity to strengthen the domestic mineral supply

chain while also accelerating remediation of contaminated lands. The IWG encourages Congress to

work with Federal land management and environmental agencies to develop programs that incentivize

mining in previously impacted areas and that will reduce legacy discharges. In addition, Congress should

consider legislation to address potential barriers for organizations seeking to re-mine or re-process

mine or mill tailings or other mineral development waste products, and for organizations seeking to

re-mine contaminated mine lands and remediate existing or ongoing contamination.

U.S. Gov’t Accountability Off., GAO-20-238, Abandoned Hardrock Mines, Information on Number of Mines,

Expenditures, and Factors That Limit Efforts to Address Hazards, 2020, p. 18. https://www.gao.gov/assets/gao-20-

238.pdf.

The IWG also recommends that the Federal government take steps to rebuild the infrastructure

necessary for a healthy domestic mining industry, such as by authorizing grants to mining schools to

train personnel in modern, efficient, and effective mining and environmental management practices

and in mining-relevant geoscience and engineering fields that have diminished over recent decades;

reestablishing long-dormant lines of Federal mining research; and developing a centralized repository

of the Federal government's currently fragmented inventory of mining, geologic, and geophysical data.

II. Purpose of the Mineral IWG and Report

On February 24, 2021, President Biden signed Executive Order (E.O.) 14017, ‘‘America’s Supply

Chains.” The E.O. establishes the Administration’s policy to strengthen the resilience of America’s

supply chains, directing Federal agencies to complete a series of reviews within 100 days to identify

supply chain vulnerabilities, and to make policy recommendations to strengthen supply chains for

different industrial sectors. On June 8, 2021, the White House released the 100-Day reviews directed

by E.O. 14017, which included a recommendation for the Federal government to form an interagency

working group with:

expertise in mine permitting and environmental law to identify gaps in statutes and regulations

that may need to be updated to ensure new production meets strong environmental

standards throughout the lifecycle of the project; ensure meaningful community consultation

and consultation with tribal nations, respecting the government-to-government relationship,

at all stages of the mining process; and examine opportunities to reduce time, cost, and risk

of permitting without compromising these strong environmental and consultation

benchmarks.

In addition, the Bipartisan Infrastructure Law (BIL), signed by President Biden on November 15, 2021,

directed the Department of the Interior (DOI) and the U.S. Department of Agriculture (USDA) to

submit a report to Congress that identifies legislative and regulatory recommendations to increase

the timeliness of permitting activities for the exploration and development of domestic critical

minerals.

Shortly before the BIL was signed, BLM received a Notice of Petition and Petition for

Rulemaking (Rulemaking Petition) from 40 Federally recognized Tribes,

Indigenous organizations, and

“Building Resilient Supply Chains, Revitalizing American Manufacturing, and Fostering Broad-Based Growth.” The

White House, June 2021, p. 14. https://www.whitehouse.gov/wp-content/uploads/2021/06/100-day- supply-chain-

review-report.pdf .

Pub. L. No. 117-58, § 40206, 135 Stat. 429, 961-63 (2021).

“Federally Recognized Tribe” means any Indian tribe listed under § 102 of the Federally Recognized Indian Tribe List

Act of 1994 (25 U.S.C. § 5130), see 2023 list of Indian Entities Recognized by and Eligible To Receive Services From the

United States Bureau of Indian Affairs, 88 Fed. Reg. 4636, (Jan. 12, 2023).

non-governmental organizations (NGOs),

requesting that DOI update its surface management

regulations to protect Indigenous and Federal land resources in the West. The Rulemaking Petition

stated, “BLM’s existing hardrock mining rules perpetuate inequities while failing to adequately protect

Tribal resources and other natural resources. Modernizing BLM’s hardrock mining rules would help

correct these unacceptable risks and burdens that the current rules all too often permit.”

As the Administration pursues its strategy to secure a reliable supply of critical minerals and companies

respond to increasing demand for minerals needed for renewable energy and other advanced

technologies, DOI launched the Interagency Working Group on Mining Regulations, Laws, and

Permitting (IWG) to respond to the aforementioned directives and develop recommendations for

legislative, regulatory, and policy reform, and held stakeholder engagement and listening sessions

throughout the spring and summer to inform its recommendations. At the same time that the IWG

was announced, on February 22, 2022, the Administration released a document entitled, “Biden-Harris

Administration Fundamental Principles for Domestic Mining Reform,” which laid out the key themes

and policy direction that would guide the work of the IWG.

The document states:

There is a growing need for responsibly sourced critical minerals to meet our climate,

infrastructure, and global competitiveness goals…. As the Biden-Harris Administration

advances its critical minerals strategy, including expanding domestic production in a

timely manner, we must ensure that our actions are conducted with strong

environmental, sustainability, safety, Tribal consultation and community engagement

standards so that the American public has confidence that the minerals and materials

used in our electric vehicles, smartphones, solar panels and other technology are

sourced under responsible social, environmental and labor standards and that the

Administration wisely stewards our shared natural resources for Americans today and

future generations.

The IWG recognizes that mining is important to meeting the nation’s clean energy and national

security goals, that mining is also an important economic driver for creating good-paying union jobs,

Chilkat Indian Village et al., “Notice of Petition and Petition for Rulemaking: Bringing Hardrock Mining Regulations and

Policy into the 21

Century to Protect Indigenous and Public Lands Resources in the West.” Sept. 16, 2021, p. 6.

https://earthworks.org/assets/uploads/2021/09/APA-DOI-Hardrock-Mining-Rules-Petition-Combined-1.pdf.

Id. BLM also received a petition on June 18, 2019, representing 11 mining groups requesting new rulemaking to

resolve an issue surrounding the application of state environmental laws on Federal lands. See generally James L. Buchal,

“Petition for Rulemaking to Stop State-Law-Based Prohibitions of Mining on Federal Lands.” June 18, 2019.

https://goldgold.com/wp-content/uploads/2019/06/Miners-Petition-6-18-19.pdf. The IWG did not attempt to discuss or

address the issues raised in that petition.

Supra., note 3.

Id.

and that mining can be a catalyst for economic revitalization. There is a shared desire to improve: (1)

the speed and effectiveness of permitting; (2) the confidence that Tribes, States, local communities,

conservationists, preservationists, and other interested parties have that mining and reclamation will

be done properly; and (3) the legal system governing mining to modernize the process and use current

and future technology to meet our shared environmental, Tribal consultation, community

engagement, and labor standards. We also appreciate that these development needs are part of a

greater process to develop a circular economy that can drive our economy into the future. We

cannot rely only on new mines to meet our critical minerals needs in the near-term and future, but

must prioritize reuse, recycling, reprocessing, and developing new technology to reduce the amount

and kind of materials needed to secure our clean energy independence.

Today, America’s Federal hardrock mining system provides a minimum level of transparency, no

requirement to work with or assist communities impacted by mineral development, and no

requirement to develop our nation’s resources in an equitable or sustainable manner. Many companies

follow voluntary standards that may exceed U.S. statutory and regulatory requirements. These

standards are often developed or adopted by international bodies, including industry organizations,

governmental organizations, or NGOs—such as the International Council for Mining and Metals

(ICMM), the Organisation for Economic Co-operation and Development (OECD), and the Initiative

for Responsible Mining Assurance (IRMA), respectively. Not all companies choose to follow these

standards. For those that do, effective conformity assessment (such as auditing, verification,

certification, etc.) can help investors and downstream consumers verify that companies are following

voluntary standards. Unfortunately, conformity assessment is not a universal feature of voluntary

standards in the mining industry.

The U.S. has set a high standard for environmental regulations that apply to today’s mining operations.

However, there are still many abandoned mining facilities that predate today’s environmental

requirements. Historical injustices described in more detail below, legacy mining pollution, and a lack

of transparency when engaging with and educating the public on mining activity or the importance of

mining for achieving America’s clean energy future have all impacted the practice, image of, and trust

in domestic mining. Federal agencies and the Administration can take steps to improve permitting,

environmental stewardship, as well as Tribal consultations and public notifications, but these efforts

will fall short of meeting national needs absent congressional enactment of significant reforms to the

Mining Law of 1872.

The official definition for conformity assessment, as well as additional details on the federal government’s use of

conformity assessments, can be found at 15 C.F.R. Part 287.

We must also recognize and reconcile multiple valid yet competing missions. We must accelerate

domestic production and secondary recovery of the critical minerals needed to support the transition

to a clean energy economy, and we must do so while ensuring that miners prevent or mitigate harmful

effects on the air, water, land, cultural resources and practices, Tribal resources, Tribal Treaty Rights,

and lives that we seek to also protect from the most devastating impacts of climate change. And we

must do so while fostering open, effective, and meaningful coordination with Tribal, state, and local

governments and giving greater voice to traditionally underrepresented communities. Finally, we must

bring hardrock mining on par with coal, oil and gas, and other extractive processes and establish a fair

return for taxpayers through meaningful royalties and reclamation fees.

The IWG is chaired by the Deputy Secretary of DOI and consists of representatives from across the

government, including the DOI, USDA, Department of Energy (DOE), Environmental Protection

Agency (EPA), Department of State, Council on Environmental Quality (CEQ), the Advisory Council

on Historic Preservation (ACHP), and National Economic Council, among others. To develop its

recommendations, the IWG published a request for information

(RFI) on March 31, 2022, with a

comment period that ran through August 30

, receiving over 26,000 responses, including over 300

unique comment letters. The IWG also met with State and local governments, Congressional staff,

the mining industry, electrical vehicle and battery manufacturers, labor leaders, subject matter and

scientific experts, and NGOs. The IWG held public listening sessions, Tribal listening sessions, and four

government-to-government consultations with Tribal government officials in the course of its work.

The IWG formed six subgroups to address major challenges and opportunities: mining operations,

access to mineral resources, fiscal issues, Tribal and public engagement, permitting improvement, and

international best practices and standards. The subgroups consisted of subject matter experts that

discussed each of these subjects in greater depth, reviewed the comments received, and in some cases

obtained additional information from outside experts.

The focus of the IWG’s work is on minerals subject to the 1872 Mining Law, generally referred to as

“locatable minerals” and often colloquially referred to as “hardrock” minerals, although such minerals

are not necessarily found in rocks that are “hard,” or even in the form of rocks at all.

Congress has

Request For Information to Inform Interagency Working Group on Mining Regulations, Laws, and Permitting, 87 Fed.

Reg. 18811, 18811-12 (Mar. 31, 2022).

For example, lithium dissolved in subsurface brine on Federal lands open to the Mining Law is a mineral deposit

subject to disposal under the Mining Law.

removed a number of minerals

and certain Federal lands

22,23

from operation of the Mining Law, but

access to most hardrock minerals on Federal lands in the American West—including gold, copper,

uranium, nickel, and nearly every entry on the most recent U.S. Geological Survey (USGS) list of critical

minerals—is governed by this 150-year-old law.

The IWG considered a range of potential reforms to improve the quality of information considered

during the permitting and review process; make the mine development permitting and environmental

review processes more efficient while maintaining or improving standards for environmental

protection, Tribal consultation, and community engagement; ensure a fair return to the American

taxpayer for the extraction of their valuable resources; and improve domestic access and production

of minerals. After consideration of the robust input received, the report provides a range of options

for change, including a consideration of a rethinking of the whole system, such as establishing a leasing

system for hardrock minerals and transitioning away from the use of self-initiated mining claims, and

moving mining into land management planning so that development is focused in low-conflict areas.

Many potential changes would require Congress to consider how best to implement them. Pending

congressional action, the report also includes a slate of recommendations to make meaningful change

in the near term to help address key issues that slow project permitting or raise significant

environmental, Tribal, or social concerns.

Thus, much of this report focuses on the laws and policies that apply to the Bureau of Land

Management (BLM) and the United States Forest Service (USFS). However, as discussed in Section VI,

these agencies are not the only entities that regulate mining on Federal lands. Many other agencies,

including the EPA, U.S. Fish and Wildlife Service (FWS), U.S. Army Corps of Engineers (USACE),

Nuclear Regulatory Commission, ACHP, Department of Commerce (DOC), CEQ, and State and

local entities, may also regulate and exercise permitting, review, or consultation authorities that mining

operators must comply with before beginning mining or exploration operations. Hardrock mining

operations on non-Federal land may be completely regulated by States and not subject to National

Environmental Policy Act (NEPA) or National Historic Preservation Act (NHPA) review unless an

individual Clean Water Act (CWA) 404 permit from the USACE is required, in which case some level

of NEPA and NHPA review would occur with the USACE as the lead agency. In examining and

For example, the Mineral Leasing Act of 1920 removed deposits of some minerals, including oil, gas, phosphates, and

sodium from operation of the Mining Law, and made deposits of those minerals subject to leasing. 30 U.S.C. § 181 et

seq. In addition, the Surface Resources Act of 1955 removed common varieties of sand, stone, gravel, and pumice, from

operation of the Mining Law and made them subject to disposal under the Materials Act of 1947. 30 U.S.C. §§ 601-15.

Such as public domain lands in Minnesota, Missouri, Michigan, Wisconsin and Kansas. Acquired lands have never been

subject to operation of the 1872 Mining Law.

This report uses the term “Federal lands” when referring generally to lands subject to operation of the Mining Law,

regardless of surface managing agency. The report will specify BLM-managed public lands, National Forest System lands,

or National Park System lands where applicable.

implementing the recommendations in this report, the individual agencies represented on the IWG

will continue to coordinate and work with its members and other entities to improve the complete

permitting process.

Further, some mining claims exist, and mining is permitted to continue, on National Park Service (NPS)

lands based on valid mining claims and sites that existed prior to the creation of a park. However,

new claims may not be located on NPS lands,

as statutes creating new parks withdraw those lands

from location and entry under the 1872 Mining Law. To the extent that recommendations in this

report for improving mineral exploration, development, and reclamation may be applied to mining on

NPS lands, the DOI will endeavor to do so.

Most lands within the FWS National Wildlife Refuge System (NWRS) have been withdrawn from

operation of the 1872 Mining Law either by provisions in refuge establishment documents or via

administrative withdrawal under the Federal Land Policy and Management Act (FLPMA) or other

applicable law.

As a result, comparatively little mining occurs on national wildlife refuges, so this

report does not address or review modifications of the law on NWRS lands. Where valid mining

claims exist within the NWRS due to reserved rights or that predate withdrawal, the DOI will

endeavor to employ the recommendations for improving mineral exploration, development, and

reclamation to the extent they may be relevant and applicable.

Applicable background information and the IWG’s observations and recommendations are contained

in the pages that follow. This report addresses potential reforms to the Mining Law, Federal regulations

implementing the Mining Law, and other related statutes, as well as non-regulatory reforms. The

Biden-Harris administration acknowledges that there are many competing interests and that balance

must be achieved to expand domestic critical mineral mining, protect the environment, and engage

traditionally marginalized communities—especially Tribes, many of which have been harmed by mining

in the past. The IWG also acknowledges the need to center all these reforms as part of a circular

economy to drive greater recycling, reuse, reprocessing, and technological breakthroughs to secure

our clean energy future.

Mining claims in National Park System units are regulated by the National Park Service under the authority of the

Mining in the Parks Act, which directs the Secretary of the Interior to determine the validity of unpatented claims in NPS

units and regulate all mineral activity in connection with mineral rights on valid unpatented and patented claims in NPS

units, see 54 U.S.C. §§ 100731-37.

The Secretary of the Interior may withdraw refuge lands from operation of the mining laws in accordance with 43

U.S.C. §§ 1714(c), (d), or (e). Moreover, per 50 C.F.R. § 27.64, “[p]rospecting, locating, or filing mining claims on national

wildlife refuges is prohibited unless otherwise provided by law.”

Non-Federal hardrock mineral rights within the NWRS are managed in accordance with 50 C.F.R. § 29.32 and the

U.S. Fish and Wildlife Service Minerals Management Policy. “Chapter 1: Minerals Management Policy,” in Natural and

Cultural Resources Management: Part 612, Minerals Management. Fish and Wildlife Service, Dec. 2016, pp. 1-7.

https://www.fws.gov/policy/612fw1.pdf.

A note on terminology: when discussing the impacts of hardrock exploration and mining, the report

will often use the term “environmental” or “social” impacts. The meaning of environmental impacts is

generally well understood: the effects of an operation on the air, water, land, climate, wildlife, and

other components of the natural environment. The term “social impacts” does not have as clear a

definition. One review of 50 studies analyzing the social impacts of mining found 28 different social

impact indicators in use, both positive and negative, including economics, employment, gender, health,

cultural resources, Indigenous rights, and others.

The IWG considers the term “social impacts” to

be expansive, and uses it in this report to include impacts on historic buildings and artifacts, religious

practices, Tribal treaty rights, cultural heritage sites, and more, in addition to the impacts listed in the

referenced review. If a specific social impact is being discussed separately from others, the IWG will

use the more specific term.

III. Setting the Context of Mining in the U.S.

A. Background of The Mining Law

One hundred and fifty years ago, shortly after the conclusion of the Civil War, the U.S. Congress

enacted a law that changed the face of our nation’s Federal lands and our national economic trajectory.

The 1872 Mining Law effectively codified into law informal mining codes that dated to the California

gold rush.

Miners were encouraged to seek out valuable minerals, and incentivized to do so by

promises of cheap land and the minerals that land contained.

But times change and nations evolve. In 1872 there were only 37 states; mineral resources on Federal

lands were almost entirely unmapped; our nation’s population was small—just 39.8 million in 1870

compared to 331.4 million in 2020

—and non-Indigenous settlement in the West, where most

hardrock minerals are found, remained particularly sparse. Mining operations were relatively small by

today’s standards, with even the largest operations producing only several hundred to a few thousand

tons per day, compared to large operations today that routinely produce tens or even hundreds of

thousands of tons per day. Society possessed a limited understanding of the adverse impacts that

could result from imprudent mining. And in 1870, the lands and resources stewarded by Tribal

L. Mancini, S. Sala, Social Impact Assessment in the Mining Sector: Review and Comparison of Indicators Frameworks,

Resources Policy, Vol. 57, 2018, pp. 98-111. https://doi.org/10.1016/j.resourpol.2018.02.002.

Although the principles of the 1872 Mining Law date back to the informal codes established by miners themselves

during the California gold rush (and reflected certain mining rules that predated that), such codes were generally

formalized by states and local mining districts prior to 1872. The 1872 Mining Law deferred to formal state and local

mining laws and regulations to the extent they were not inconsistent with federal law.

U.S. Census Bureau QuickFacts: United States. Census Bureau QuickFacts.

https://www.census.gov/quickfacts/fact/table/US/PST045222.

Nations were seen by many as open for claim, even, at times, when legally foreclosed by a treaty

existing between the Tribe and the United States.

The 1872 Mining Law,

the operation of which remains in most ways unchanged where it applies,

makes “all valuable mineral deposits in lands belonging to the United States . . . free and open” to

mineral exploration and purchase.

Under the 1872 Mining Law, miners can “locate” mining claims

on Federal lands, develop and maintain their claims to those minerals, and may eventually obtain a

“patent” to the land covered by the claim and the minerals contained within.

A patent converts

publicly owned lands and any minerals those lands contain into private property. For much of our

history, mineral patents were granted routinely, with hardly any review.

Over the last 150 years,

around 3.2 million acres of Federal land

—an area approximately the size of Connecticut—and an

estimated excess of $300 billion in mineral wealth,

have been transferred out of public ownership.

Taxpayers received little, if any, direct compensation for the lands and minerals conveyed out of public

ownership.

Many mining claims were developed but not patented prior to the enactment of an annual prohibition

of new patent applications,

leaving the land in Federal ownership, but subject to mineral

development. These are referred to as unpatented mining claims. Since 1976, more than 4 million

unpatented mining claims have been filed, covering over 23.8 million acres of Federally managed

lands.

At the end of Fiscal Year 2022, over 489,000 of these claims were considered “active,”

meaning that they were in good standing under the recording, annual maintenance, and assessment

work requirements.

This is the highest number of active mining claims this century, an indication of

significantly increased interest in exploring for and developing minerals on Federal lands (see Figure

1).

30 U.S.C. § 21 et seq., as amended.

30 U.S.C. § 22.

As a result, minerals that fall under the 1872 Mining Law are often informally referred to as “locatable minerals.” In

1994, Congress placed an annual moratorium on new patent applications, which has been extended each year since. See

Department of the Interior and Related Agencies Appropriations Act of 1995, Pub. L. No. 103-332 § 112, 108 Stat.

2499, 2519 (Sept. 30, 1994). For processing existing mineral patent applications that received a First Half Mineral Entry

Final Certificate prior to the 1994 moratorium, the BLM and USFS follow the procedures laid out in BLM H-3860-1 and

MS-3860, MS-3862, MS-3863, and MS-3864.

John Leshy, The Mining Law: A Study in Perpetual Motion, 1987, pp. 125-26.

U.S. Gov’t Accountability Off., B-229205, Federal Land Management: The Mining Law of 1872 Needs Revision, 1989,

p. 2, https://www.gao.gov/assets/rced-89-72.pdf.

Earthworks, “1872 Mining Law factsheet,” 2019. https://earthworks.org/resources/the-1872-mining-law/.

See Pub. L. No. 103-332 § 112, 108 Stat. 2519 (1994).

U.S. Bureau of Land Mgmt., Public Land Statistics 2022, p. 132 tbl.3-22.

Id.

Holders of unpatented mining claims are required to pay annual claim maintenance fees or perform

assessment work, but they are not required to pay any royalty on the extraction of locatable minerals

or ever explore or mine the lands.

Today, developed and undeveloped mining claims dot the

landscape, complicating efforts to remediate hazards from legacy mining and to manage Federal lands

in a manner that achieves the lands’ full range of potential benefits.

Figure 1. Source: BLM, Public Land Statistics, Table 3-22.

Ready and free access to Federally managed lands and the minerals they contain have created jobs

and fueled our national economy and continue to do so. Americans mined the iron that became the

steel forming the railroads connecting our nation, the bodies of our ships, and the beams framing our

skyscrapers. Americans mined the copper that wires our homes and the aluminum that revolutionized

flight. Americans mined the uranium that changed the world and lit some of our homes. Americans

and American mining have improved the standard of living for hundreds of millions of people. But

progress came at a cost.

Prior to the implementation of strong environmental legislation in the second half of the 20

century,

many mineral operations improperly disposed of wastes during operations and were simply

Unpatented mining claims are those parcels of Federal lands for which an individual has asserted a right of possession.

The rights are restricted to extraction and development of a mineral deposit and uses reasonably incident thereto, and

may or may not include exclusive surface rights.

abandoned when no longer profitable, leaving behind a legacy of ongoing pollution with at least

160,000 orphaned and abandoned hardrock mines scattered across 12 western states, though no

comprehensive inventory exists.

American taxpayers continue to spend millions of dollars each year

cleaning up the legacy of these past practices.

B. Impacts on Tribes from Historical Mining Operations

At the birth of the United States, Indigenous Peoples called all of North America home and occupied

that vast landscape. Today in the U.S., Tribes and their members reside on only a small fraction of

their ancestors’ land, often far from their most sacred places. Many Tribes, however, retain strong ties

to their ancestral homelands, even when the United States forcibly relocated them to reservations.

Treaties between Tribal Nations and the United States may reserve to Tribes and their members the

right to off-reservation uses like hunting, fishing, or plant gathering. Federal laws and policies also

provide certain procedural rights to consult on Federal actions affecting Tribes.

A large number of Tribal displacements, forced relocations, and other tragedies were driven by mining:

from the Georgia gold rush in the 1820s and 1830s that led to the forced removal of the Cherokee

and other Tribes from their lands, to the death of an estimated 100,000 American Indians in the first

two years of the California gold rush,

to the forced negotiations in 1863 that led the Nez Perce

Tribe to relinquish 90 percent of its land in what the Tribe refers to as the “Steal Treaty,”

to the

seizure of the Black Hills in 1877 after the discovery of gold in the region, among numerous other

examples.

Tribes continue to be impacted by past and current mining operations, many of which occurred prior

to the enactment of modern environmental laws and regulations. A great number of the more than

160,000 known abandoned mines in the Western United States are on or proximate to Native

U.S. Gov’t Accountability Off., GAO-08-574T, Hardrock Mining: Information on Abandoned Mines and Value and

Coverage of Financial Assurances on BLM Land, 2018, pp. 13-14 tbl.3, https://www.gao.gov/assets/gao-08-574t.pdf.

See U.S. Gov’t Accountability Off., GAO-23-105408, Abandoned Hardrock Mines: Land Management Agencies Should

Improve Reporting of Total Cleanup Costs 15 (2023), https://www.gao.gov/products/gao-23-105408 (“To clean up

contamination at abandoned hardrock mines from fiscal years 2017 through 2021, Interior’s and USDA’s documents

indicate that together they spent an average of approximately $24 million per year. . . .”).

“The Indian Removal Era and Section 106 Tribal Consultation: Information Paper,” Advisory Council on Historic

Preservation, Apr. 2019, pp. 1-3. https://www.achp.gov/sites/default/files/whitepapers/2019-

04/RemovalEraInformationPaper20190401final_0.pdf.

Edward D. Castillo, “Short Overview of California Indian History.” State of California Native American Heritage

Commission. https://nahc.ca.gov/resources/california-indian-history/.

Nez Perce Tribal Executive Committee Response to Request for Information to inform Interagency Working Group

on Mining Regulations, Laws, and Permitting. (2022).

Lands,

such as the Midnite uranium mine on the Spokane Tribe of Indians Reservation in the Selkirk

Mountains of eastern Washington; uranium mines on the Laguna Pueblo and Navajo Nation; silver,

lead, and zinc mines in the Coeur d’ Alene watershed in Idaho; and the Zortman-Landusky mines

adjacent to the Fort Belknap Indian Reservation in Montana. It is estimated that more than 600,000

American Indians live within 6 miles (10 km) of an abandoned mine site in the Western U.S.—a

proximity that has been linked to a number of health disparities among American Indians.

These legacy environmental and cultural impacts affect Tribes by degrading land, vegetation, waters,

and air and harming wildlife and aquatic resources on Tribal reservations and on traditional use areas.

Sacred places have been lost or degraded by mining activities. Some impacts of mining on Tribes are

described in comment letters submitted by various Tribes in response to the RFI.

“Historically, the federal government took actions that facilitated mining on or near

tribal lands, or on public lands off reservations on which tribes have reserved rights

and resources, resulting in hazards that have adversely affected, and continue to affect,

some tribal communities.” – Comments from Shoshone Bannock Tribes et al. to IWG

While most impacts from abandoned hardrock mines come from chronic ongoing contamination of

lands and waters that many Indian Tribes continue to hold sacred, occasionally an event occurs that

highlights the issue in a more visible way. For example, in 2015, more than three million gallons of acid

mine drainage containing an estimated 540 tons of heavy metals were released from the Gold King

Mine in San Juan County, Colorado, into Cement Creek during an EPA removal site evaluation. Highly

polluted water flowed from Cement Creek into downstream waters of the Animas River, which flows

through the aboriginal lands of the Ute people, including present members of the Southern Ute Tribe

and the Ute Mountain Ute Tribe, and into the San Juan River, passing numerous Native communities

and along the northern border of the Navajo Nation. This event temporarily impacted the water

supply for the Navajo Nation and Southern Ute Tribe.

This long-standing historical legacy makes mining significantly different from other large infrastructure

projects, such as transmission lines or highways. As the nation considers expanding domestic mining

to produce the minerals that are crucial for our current technology and our transition to clean energy,

we must acknowledge historical injustices and their continued impact, recognize the skepticism and

J. Lewis, J. Hoover, and D. MacKenzie, Mining and Environmental Health Disparities in Native American Communities, Curr.

Envtl. Health Rpt., Vol. 4, 2017, pp. 130-41, at 130. https://link.springer.com/article/10.1007/s40572-017-0140-5.

Id. at 131-33.

M. Lopez, Tribal Rights: The 1872 Mining Law's Past and Future, Natural Resources & Envt., Vol. 43, 2020, pp. 53-55.

https://www.proquest.com/docview/2369311158?fromopenview=true&pq-

origsite=gscholar&parentSessionId=HetzeBmRSZJnHB2NoBpnWKqJJP9NuacnhH%2F7hgML6dU%3D

distrust that they engender, and seek to redouble efforts to listen to, consult on a government-to-

government basis with, and, when possible, partner with Tribes on the mines of the future.

We must also recognize that Tribal Nations can and do benefit from mineral activities on their lands.

For example, the Navajo Nation is located in a geologically rich mining area with reserves of uranium,

coal, oil, and natural gas. Historically, mining has been a major part of the Navajo economy, employing

large numbers of Tribal members and infusing much-needed cash into the local community. At the

same time, Cold War-era uranium mining on Tribal lands has left a significant legacy of environmental

pollution and negative health impacts, some of which continue to this day. As with many development

projects, the benefits and impacts from mining are neither equally nor uniformly distributed across

individual communities.

In addition, the Southern Ute Tribe, located in southwestern Colorado, has developed one of the

most successful Tribal oil and natural gas industries in the country. Revenues from natural resource

extraction have allowed the Tribe to develop a prosperous growth fund for community development.

While these are examples of Tribal benefits from fossil fuel projects, Tribes can also take economic

advantage of their mineral resources that can help power our Nation’s clean energy transition. Today,

many Tribal Nations face a dilemma: how to balance mineral development on lands within their

communities with protection of a landscape they hold dear.

IV. Mining Operations and Management

The term “hardrock minerals” generally includes the critical minerals that are necessary for our

national and economic security and the technologies essential to meeting the United States’ Nationally

Determined Contribution to fight climate change. The Biden-Harris administration is focused on

securing supply chains for these minerals—as they are essential to reaching the nation’s clean energy

goals—while ensuring that it is done in a responsible way that does not compromise environmental

standards, Tribal consultation, and community engagement.

Recognizing the near-complete import dependence that the U.S. has on a number of critical minerals,

recent legislative and executive actions have attempted to create more domestic capacity for critical

mineral mining and processing, as well as promote domestic manufacturing of the products that these

critical minerals are used for, such as semiconductors, permanent magnets, and advanced batteries.

Critical minerals may be found on Federal lands and on or near Indian lands. One recent study found

that 97 percent of our Nation’s nickel resources, 89 percent of our copper, 79 percent of our lithium,

“Fact Sheet: Securing a Made in America Supply Chain for Critical Minerals.” The White House, Feb. 22, 2022.

https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/22/fact-sheet-securing-a-made-in-america-

supply-chain-for-critical-minerals/.

and 68 percent of our cobalt are located within 35 miles of Indian reservations.

Developing these

resources will likely result in additional opportunities for Tribal economic development and

partnership, but if not appropriately managed, mining may also result in negative impacts on current

Indian lands and ancestral homelands, as well as Tribal Treaty rights and cultural and natural resources.

The IWG reviewed a number of voluntary exploration and mining standards to assess best practices

and innovative industry sustainability efforts. The scope and rigor of these standards vary greatly, and

a comprehensive discussion or comparison of them is outside the scope of the IWG. In recent years,

a number of comparisons of voluntary standards have been published, including those by SAFE,

the

German Federal Institute for Geosciences and Natural Resources,

and the Intergovernmental Forum

on Mining, Minerals, Metals and Sustainable Development (IGF).

The downloadable Integrated

Assessment Protocol developed by the Mining, Minerals and Metals (M3) Standards Partnership, which

allows mine sites to compare their performance against four sustainability standards: IRMA,

Responsible Jewellery Council, ResponsibleSteel, and Towards Sustainable Mining (TSM), is a

particularly useful comparison tool.

The IWG views the existence of these voluntary standards and the increasing industry use of them as

positive developments. This report endorses the adoption of a number of components of voluntary

standards—particularly ones from the IRMA standard developed by a multi-stakeholder coalition

comprised of the mining industry, end-users, environmental and human rights NGOs, labor

organizations, and others—but believes that additional work is required to determine whether

adherence to a single voluntary standard can be adequate and appropriate for U.S. government

purposes. At a minimum, the IWG believes that third-party review of company or mine performance

against selected standards is necessary for achieving public trust and allowing the Federal government

to base decisions on the reported level of compliance. Ideally, the third-party assessments would be

conducted in accordance with international guidelines and standards for conformity assessment, and

the results of these third-party assessments would be made public.

Supra., note 8.

SAFE Center for Critical Minerals Strategy, A Global Race to the Top: Using Transparency to Secure Critical Mineral Supply

Chains, March 2023. https://secureenergy.org/a-global-race-to-the-top/.

BGR, Sustainability Standard Systems for Mineral Resources a Comparative Overview – 2022, December 2022.

https://www.bgr.bund.de/DE/Themen/Min_rohstoffe/Downloads/studie_sustainability_standard_systems_2022.pdf.

IGF, State of Sustainability Initiatives Review: Standards and the Extractive Economy, 2018.

https://www.iisd.org/system/files/publications/igf-ssi-review-extractive-economy.pdf.

https://www.m3standardspartnership.org/m3-assessment-tool

A. Modern Mining Operations

The BLM and USFS regulate many different types and sizes of hardrock mining operations on federal

lands that those agencies manage. Ores may be mined using underground or surface techniques, or

sometimes a combination of both. There is a wide range in the size of mining operations, from small

operations that may mine or process at rates of less than 1,000 tons per day to large open pit or

block cave mines that operate at higher rates of tens of thousands to 100,000 tons per day or more.

Likewise, there is a wide range of mine operational lives: some mines may operate for only a matter

of years before closing, while others can operate for many decades.

Current mining operations occur under environmental policies and laws designed to manage the

impact of mining on people and the environment. Environmental laws, such as FLPMA, NEPA, the

Clean Air Act (CAA), CWA, NHPA, and the Safe Drinking Water Act (SDWA) have been in place

for approximately 50 years and have improved environmental practices associated with mining in the

United States. Environmental laws have decreased—but not eliminated—the risk of mining impacts

on public health and the environment.

As a 1999 National Research Council study of mining on

Federal lands concluded:

The Committee did not have sufficient information to evaluate fully the environmental

impacts of modern hardrock mining. Regulation of mining will limit and control many

of these impacts, but mining will still alter landscapes and environmental resources

because regulations generally are not designed to prevent all impacts, because some

impacts are not addressed by regulations, and because it is unreasonable to expect

there will not be violations or failures of the regulations.

Mining operations include extracting ore from open pits or underground tunnels, facilitated with the

use of explosives. During mining operations, topsoil and waste rock are removed in order to gain

access to the ore. Waste rock may be redeposited into a previously mined area, but more frequently

is placed in unlined piles at the mine site. Mined ore is generally processed at an on-site facility to

produce concentrates of the valuable mineral being mined, or the mineral or metal itself may be

produced. There are a variety of mine site processing techniques that may be used depending on the

nature of the ore and mineral being extracted—crushing, grinding, gravity separation, flotation, and

leaching are the most common—some of which require large amounts of water. A variety of

chemicals and water are used during mineral processing. Tailings (wastes from mineral processing) are

See R.R. Seal, II et al., “Environmental Considerations Related to Mining of Nonfuel Minerals,” in U.S. Geological Survey,

Critical Mineral Resources of the United States—Economic and Environmental Geology and Prospects for Future Supply, K.J.

Schulz et al. eds., 2017, pp. B1, B3-5. https://doi.org/10.3133/pp1802B.

Committee on Hardrock Mining on Federal Lands, National Research Council, Hardrock Mining on Federal Lands, The

National Academies Press, 1999, p. 62. https://doi.org/10.17226/9682.

managed and disposed of in various ways at the mine site. Tailings may be filtered and disposed of in

stacks or as a slurry or thickened slurry in an underground mine or in surface impoundments.

Heap leaching is a processing method that involves percolating a leaching solution directly through

mined ore on a pad or liner. Tailings are not produced with heap leaching, but the heap leach spent

ore and leaching solutions must be properly managed to avoid contamination. In situ extraction, where

a leaching solution is injected underground to extract minerals, avoids the generation of waste rock

and tailings altogether, but must be carefully managed to ensure that the leachate solution and

dissolved metals do not contaminate groundwater.

The type of leaching solutions used in in-situ and

heap leaching depends on the mineral that is being dissolved. For example, sodium cyanide is

commonly used in gold and silver heap leaching. Acids or alkaline chemicals are used for in-situ leaching

of uranium.

Exposure of mine workings, spent ore, waste rock, and tailings to precipitation and surface waters can

result in the generation of acid, known as acid rock drainage or acid mine drainage, and the leaching

of heavy metals and other contaminants. Many thousands of acres of land and surface waters have

been negatively impacted by the construction of open pits and mine tunnels, the direct disposal of

tailings and waste rock from historic mining operations, and acid mine drainage. Surface waters and

groundwater have been further impacted by erosion of wastes and leaching of contaminants from

mine sites, which can include arsenic, cadmium, copper, mercury, lead, selenium, uranium, zinc, and

other dissolved metals. A U.S. Bureau of Mines researcher estimated in 1990 that “12,000 miles of

rivers and streams and 180,000 acres of lakes and reservoirs have been adversely affected” by mining

and processing.

Impacts to air can occur from fugitive dust and chemical emissions, and, at uranium

and rare earth mine sites, radon and other radioactive constituents. Fugitive dust and mercury

emissions can redeposit near and far from the mine site, resulting in additional cumulative impacts on

lands and waters. In addition, erosion and failures at tailings and waste rock disposal sites can occur

over time.

Many mining operations require dewatering during mining to keep mines safe and dry during mining.

Dewatering can result in hydrologic changes to groundwater and surface waters, depleting aquifers

and degrading or eliminating streams, seeps, and springs. The water removed to facilitate mining must

be managed properly and is often used in on-site mineral processing. Any excess water must be

treated as needed, used off-site, or discharged to groundwater or surface waters. Operational water

World Nuclear Association, “In Situ Leach Mining of Uranium,” uploaded Sept. 2020.

https://www.world-nuclear.org/information-library/nuclear-fuel-cycle/mining-of-uranium/in-situ-leach-mining-of-

uranium.aspx.

C.F. Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West. Island Press, 1992, p. 49.

may be reused for processing, used to control fugitive dust emissions, evaporated in a tailings pond,

or treated and discharged. Any water seepages may need to be collected and treated.

Proper waste management and water management are critical at mining sites, and evaluating the water

balance of a site and how the balance may change over time is imperative to the success of a project.

It is important to consider groundwater and surface water conditions, desired water discharge

outcomes, anticipated maximum water events (i.e., a 100-year or more extreme event), and

anticipated trends for future events, including changing climate conditions. These factors, as well as

considerations for end of mine life, should be considered during plan development. Long planning

horizons may be necessary given the potential for mine wastes and workings to release contamination

well after mine closure. Finally, with the impacts of climate change increasing drought and water

scarcity, the needs of mines to access large volumes of fresh or groundwater can exacerbate drought

conditions. Water permits and allocations are most often managed by states.

Management measures to protect groundwater and surface waters include the use of well-engineered

waste and tailings disposal sites, detoxification of heap leach facilities, water diversion systems to keep

clean surface waters away from the mine site, water seepage and runoff collection systems, reuse of

contaminated water in processing, and water treatment before discharging mine drainage, process

waters, or other mine contact waters to land, surface waters, or groundwater.

Due to the large scale of some mining operations and the potential for the formation of acid rock

drainage and metal leaching, tailings ponds and water management structures sometimes need to be

maintained over long periods of time, and sometimes in perpetuity. As discussed more in section VI.A,

leak detection and water quality monitoring in potential receiving surface- and groundwater sources

are important components of all modern mining operations as well as efforts to reclaim abandoned

mine lands (AML).

Operators of modern mines in historically mined areas generally make efforts to identify abandoned

mine workings and infrastructure, and must carefully manage water and facilities so as not to

compound impacts to lands, groundwater, and surface waters. This, too, can require long-term

management commitments and protections. Infrastructure associated with mine sites can also result

in negative impacts on Indian Tribes due to contamination and access issues.

As expressed in the Rulemaking Petition from Tribes, Tribal Organizations, and NGOs:

Large-scale mining currently threatens the land base, Sacred Sites, Treaty rights, and

invaluable cultural resources of Indigenous communities in every western state,

including from uranium mining in New Mexico, Arizona, Utah, and Colorado, gold and

uranium in the Black Hills, gold and copper in Alaska and Montana, copper in Arizona,

multiple metals in Idaho, gold and lithium in Nevada and California, and gold and other

metals in and along the streams and rivers of the Pacific Northwest ⎯ to name just a

few.

B. Mining Waste Management Standards

Current mining operations on Federal land must comply with Interior’s and USFS’s general and specific

performance and environmental protection regulatory standards for mining operations. Interior’s

regulatory performance standards, first promulgated in 1980, were updated in 2000 and 2001 and

are more detailed than the performance standards for mining operations on National Forest System

lands, which were promulgated in 1974.

Regarding water quality, the BLM and USFS require that operators comply with applicable Federal

and State pollution control standards.

Pursuant to authority granted to the BLM in FLPMA, the BLM

can require mitigation measures to protect land, air, water, wildlife, and cultural and other resources

in applicable land use plans.

Similarly, the Forest Service can require mitigation measures for

compliance with its environmental protection requirements under 36 C.F.R. § 228.8.

As a best practice, the BLM and USFS attempt to include the corresponding State or Federal water

quality permitting agency in the review and/or approval process for notices or plans of operations.

Both agencies require that an operator receive Section 401 certification under the CWA when

applicable.

Tribes, States, or the EPA implement the National Pollution Discharge Elimination System

(NPDES). Approval of a plan of operations is separate from discharge permit approvals.

States exercise varying degrees of controls and regulation over mine management and reclamation.

New Mexico restricts new mining permits from being issued if environmental protection requirements

will require perpetual care.

Colorado similarly requires that reclamation plans for new mines provide

“a reasonably foreseeable end date for any water quality treatment necessary to ensure compliance

with applicable water quality standards.”

As both the BLM and USFS require mines to adhere to all

Supra., note 14.

See 43 C.F.R. § 3809.420(b)(5); 36 C.F.R. § 228.8(b).

Bureau of Land Mgmt., H-3809-1, Surface Management Handbook 5-15 § 5.3.5 (2012),

https://www.blm.gov/sites/blm.gov/files/H-3809-1.pdf.

U.S. Forest Serv., Forest Service Manual 2800 – Minerals and Geology, § 2817.23a (2007),

https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd533980.pdf; 43 C.F.R. § 3809.420(b)(5).

N.M. Stat. Ann. § 69-36-12(B)(4).

Colo. Rev. Stat. Ann. § 34-32-116(7)(g)(II).

applicable State environmental laws, mines permitted by the BLM and USFS in Colorado and New

Mexico must comply with those states’ restrictions on perpetual treatment.

The IRMA standard generally prohibits long-term or perpetual water treatment unless:

a) All practicable efforts to implement best practice for water and waste management

methods to avoid long-term treatment have been made;

b) The company funds an engineering and risk assessment that includes consultations with

stakeholders and determines that the contaminated water to be treated perpetually poses no

significant risk to human health or to the livelihoods of communities if the discharge were to

go untreated; and,

c) The company takes all practicable efforts to minimize the volume of water to be treated.

Industry commenters have opined that extended post-closure water treatment is sometimes an

“unavoidable” aspect of mining, and how long such treatment may be needed is not always known

with certainty at the time a plan of operation is submitted. The IWG determined that there can be

uncertainty in the predictions of closure and post-closure water quality and the relative likelihood of

the need for post-reclamation water treatment. Uncertainties may be due to modeling inputs that are

too variable or models that are not sophisticated enough, particularly when modeling many decades

into the future. Further, the risks associated with long-term treatment vary depending on the site and

therefore need to be considered on a site-by-site basis.

Industry commenters also assert that modern Federal and State mine regulations and environmental

protection standards are sufficient to protect the environment when water treatment is needed,

though this argument goes to the adequacy rather than longevity of water treatment. If long-term

treatment is needed, long-term or potentially perpetual funding to operate and maintain treatment

systems poses a challenge, in particular for our current bonding and reclamation systems, which can

struggle to contemplate costs and impacts many decades into the future. This issue is addressed in

more detail in the chapter on financial assurances.

Regarding tailings management, BLM and the USFS mainly rely on State regulations and expertise for

tailings management and oversight of tailings dam construction, maintenance, and monitoring. Mine

tailings are exempt from the Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous

waste regulations.

IRMA Standard v.1.0 – June 2018, Paragraph 2.6.6.1.

Voluntary standards related to tailings management were significantly updated or newly developed

after the disastrous failures of modern tailings dams at the Mt. Polley Mine in Canada (2014), Samarco

in Brazil (2015), and Brumadinho in Brazil (2019). In response, several U.S. states updated their

regulatory requirements for tailings dam operations and closure to be consistent with international

standards.

While such improvements are encouraged, new standards can be challenging to

implement at facilities that are already in operation. The need to reevaluate and monitor sites is key

to maintaining safety and environmental compliance. A recent United States Society on Dams white

paper identified some gaps in Federal and State dam safety programs and concluded that “[t]echnical

guidance for tailings dam closure is limited at the federal level” and “more reform at the State level

may be needed to align with the industry.”

Voluntary standards for mine tailings management for operators come from global voluntary

standards bodies, including the ICMM, IRMA, the Mining Association of Canada’s Toward Sustainable

Mining Program, and the Global International Standard on Tailings Management (GISTM). The GISTM

was released in 2020 after being developed by the ICMM, the United Nations Environmental

Programme, and Principals for Responsible Investment. The GISTM strives to achieve the goal of zero

harm to people and the environment, with zero tolerance for human fatalities.

In general, each of these standards requires the operator to have plans for the design, construction,

operation, and monitoring of the tailings facility, some form of conformance assessment, adherence

to best practices, an independent engineering review, and emergency preparedness and response

plans. IRMA requires emergency and evacuation drills related to catastrophic failure of facilities to be

conducted on a regular basis and requires independent, third-party assessments, whereas TSM and

GISTM allow for internal audits. A significant portion of the mining industry, including members of the

National Mining Association (NMA), has voluntarily adopted and uses the GISTM.

C. Inspection and Enforcement Authorities

Both the BLM and USFS periodically inspect permitted mining and exploration sites for compliance

with applicable laws, regulations, and plan requirements.

BLM and USFS may inspect operations at

See, e.g. C.F. Cobb, Update on Mine Tailings Dam Regulation in Alaska and North America. Alaska Business Monthly, Jan

2017, p. 34-35. https://www.calistacorp.com/wp-content/uploads/2019/10/AlaskaBusiness-MineTailingsDamRegulation-

CharlesFCobb.pdf.

P.E. Crouse et al., U.S. Soc’y on Dams Committee on Tailings Dams, USA Regulations and State of Practice for the

Closure of Tailings Dams, Apr. 2022, p. 26. https://www.ussdams.org/wp-content/uploads/2022/11/USA-REGULATIONS-

STATE-OF-PRACTICE-FOR-THE-CLOSURE-OF-TAILINGS-DAMS-White-Paper-Approved-8.25.22.pdf (emphasis

added).

See 43 C.F.R. § 3802.4-6 (explaining that an authorized BLM officer shall periodically inspect exploration and mining

operations); 36 C.F.R. § 228.7(a) (explaining that Forest Service officers shall periodically inspect operations).

any time. BLM policy requires that notice-level operations be inspected once annually, plan-level

operations be inspected at least twice annually, and operations using leachate or with significant

potential for acid drainage be inspected at least four times per year. The USFS adjusts inspection

frequency based on the complexity of the operation, with more complex operations being inspected

as often as weekly. Both agencies always conduct inspections once operations have ceased to ensure

that the operator has met its reclamation and closure responsibilities.

As long as mining operations continue and there is not a significant change in conditions, the approved

plan remains in place.

Companies may cease commercial production at a mine when commodity

prices or other factors make continued production uneconomic. When production ceases, an interim

management plan is required and the company must maintain an adequate financial guarantee to allow

for site reclamation.

When operations have been inactive for five consecutive years, the BLM will

review the operations and determine whether to terminate the plan and direct final reclamation and

closure.

The Rulemaking Petition and several RFI commenters asserted that the ability of an operator to retain

a site and its plans of operation with minimal maintenance allows mines to postpone closure for

decades or longer, regardless of changing environmental or socioeconomic conditions or

unanticipated events. The Rulemaking Petition recommended that the BLM and USFS require the

termination of a plan of operation if operations have not produced valuable minerals for five

consecutive years.

Current Interior regulations do not provide for civil penalties in the event of operator violations, and

FLPMA does not explicitly provide that authority. The BLM’s surface management regulations at 43

C.F.R. Subpart 3809 govern mining operations to prevent unnecessary or undue degradation.

Operators that violate any provision of a notice, plan of operation, or requirement of the 43 C.F.R.

subpart 3809 regulations may be issued a noncompliance order. The BLM may order a suspension of

operations if the operator fails to timely comply with a noncompliance order for a significant violation,

the agency notifies the operator of its intent to issue a suspension order, and BLM provides the

operator with the opportunity for an informal hearing before the BLM State Director to object to

43 C.F.R. §§ 3809.332, 3809.420(b)(3)(iii), and 3809.600.

43 C.F.R. § 3809.423. Plans of operations or plan approval documents for mining on National Forest System lands will

usually have a termination date, subject to any extensions by the authorized officer. See also 36 C.F.R. § 228.10 (covering

cessation of operations and removal of structures and equipment).

43 C.F.R. § 3809.424(a)(1).

43 C.F.R. § 3809.424(a)(4).

Supra., note 14, Attachment 7.

the suspension.

The BLM may also request that the Attorney General seek injunctive relief and

criminal penalties for knowing and willful violations.

BLM’s regulations regarding use and occupancy of land under the mining laws are codified in 43 C.F.R.

subpart 3715. Under subpart 3715, the BLM may issue an immediate suspension order if use and

occupancy is not reasonably incident to prospecting, mining, or processing operations; if the operator

is not in compliance with all applicable Federal and State standards, including obtaining all required

permits; or an immediate, temporary suspension is necessary to protect health, safety, or the

environment.

Operators who fail to comply with such an order may be subject to a civil action in

the United States District Court.

In such an action, the United States can demand monetary

compensation for damages. The BLM may also seek cooperative enforcement by a State or other

Federal agency that has civil penalty authority. BLM field staff reported to the IWG their impression

that operators treated BLM enforcement actions less seriously because of the lack of civil penalties.

BLM reports that it has issued 89 suspension orders since 2000 under the current subpart 3809

regulations, and 12 immediate suspension and 10 cessation orders under subpart 3715.

The USFS’s locatable mineral regulations, which are codified at 36 C.F.R. 228.7, provide for the

issuance of a notice of noncompliance if an operator fails to comply with its operating plan or

applicable regulations, and noncompliance is unnecessarily or unreasonably causing injury, loss, or

damage to surface resources. The notice will identify the nature of the noncompliance and a time

frame in which to correct it, usually not more than 30 days. The operator may appeal the notice. In

cases where an operator is conducting operations that are not reasonably incident to mining

operations and creating injury, loss, or damage to National Forest System resources, the operator can

be charged with violations under the USFS’s 36 C.F.R. 261 regulations. If the noncompliance is not

resolved, the USFS may pursue civil actions to halt the operations and seek compensation for damages

and reclamation of the site. Depending on the nature of the violation and damage, an operator may

be charged civilly or criminally by a U.S. Attorney for violations of environmental laws. As with the

BLM, the USFS may seek cooperative enforcement with other Federal or State agencies that have

authority.

While State enforcement for air and water quality regulations or other delegated programs may be

more efficient than BLM or USFS enforcement due to stronger penalties or clearer enforcement

authorities, reliance on State enforcement does not guarantee that Federal land management or

reclamation objectives can be achieved. Neither the BLM nor the USFS have explicit authority to

43 C.F.R. § 3809.601.

43 C.F.R. §§ 3809.605, and 3809.700.

43 C.F.R. § 3715.7-1(a).

43 C.F.R. § 3715.7-2.

impose civil or administrative monetary penalties in order to incentivize compliance. The lack of

meaningful enforcement authority is a longstanding problem. The 1999 National Research Council,

whose members are drawn from the National Academy of Sciences, National Academy of

Engineering, and Institute of Medicine, issued a report, “Hardrock Mining on Federal Lands,”

recommending that “Federal land managers in BLM and the USFS should have both (1) authority to

issue administrative penalties for violations of their regulatory requirements, subject to appropriate

due process, and (2) clear procedures for referring activities to other Federal and State agencies for

enforcement.”

The report stated that more consistent and accessible procedures for deciding when

to refer apparent violations to other agencies and the ability to issue reasonable administrative

penalties would improve the efficiency of agency operations and enhance the protection of the

environment.

D. Reclamation of Mined Lands

Mining operations can impact air quality, surface water, groundwater, vegetation, wildlife, and fish, as

well as Tribal resources, historic properties, cultural and paleontological resources, the climate, and

more. At the end of a mine’s operational life, surface disturbances must be reclaimed,

and mining

facilities are closed in accordance with approved reclamation plans. Reclamation and closure practices

can include backfilling open pits, plugging underground mine openings, re-grading the land surface,

covering and revegetating disturbed areas, treating contaminated water, removing structures, and

more. The reclamation and closure process may take several years or more, depending on the closure

plan and local environmental conditions. After reclamation, some mines will require ongoing long-

term maintenance and monitoring of structures, such as tailings dams and/or long-term treatment of

water from waste rock and tailings seepages or open pit water discharges.

The development of detailed mine plans, waste rock management plans, water management plans,

tailings management plans, and reclamation and closure plans is critical to ensuring that wastes and

waters are appropriately managed to prevent adverse impacts. The plans include environmental and

operational monitoring and adaptive management since material characterization, process water

quality and quantity, and other environmental conditions can change over the life of the operation

and through closure.

Supra., note 55 at 102.

Reclamation means taking measures following disturbance of public lands caused by operations to meet applicable

performance standards and achieve conditions required by BLM at the conclusion of operations. See e.g., 43 C.F.R. §

3809.5 (BLM’s definition of reclamation). Mitigation may not return the land to pre-disturbance conditions. Large

excavations may remain, and waste rock disposal sites may not resemble pre-development conditions.

Current mining practices and regulations have reduced mining’s impacts on the environment

compared to the impacts of historic mining operations. Regulations developed in recent decades have

significantly reduced the risk that mines currently in operation will be abandoned by the operator

without adequate financial assurances. While significant impacts can and do result from existing mining

operations and are discussed elsewhere in this report, we focus here on impacts resulting from

historically abandoned mining operations because those lingering impacts are a reminder of what may

occur in the absence of strong regulations protecting environmental quality.

The Government Accountability Office (GAO) estimates there are more than 161,000 abandoned

mine sites in the Western United States and Alaska,

a great number of which are on or proximate

to Indian lands.

In 2020, GAO reported that of the abandoned hardrock mine features on Federal

lands, “about 67,000 pose or may pose physical safety hazards—danger of injury or death—and about

22,500 pose or may pose environmental hazards—risks to human health or wildlife from long-term

exposure to harmful substances.”

These estimates appear to be conservative in nature, as agency

officials estimated that there are hundreds of thousands of abandoned hardrock mine features on

Federal land that they have not captured in agency databases.

The report estimates that:

with the [BLM’s] current abandoned mine budget and staff resources, it could take up

to 500 years to confirm the presence of physical safety or environmental hazards at

the approximately 66,000 features in its database and the estimated 380,000 features

not yet captured in its database.

Since a full survey of abandoned mines has never been conducted, additional sites and features will

likely be identified and require reclamation and remediation.

Both technological advances in tailings reprocessing and primary ore economics can change with time,

and the reprocessing of AMLs and mine or mill tailings may represent an opportunity to mitigate

harm. Advances in reprocessing may be impactful since, increasingly, remining legacy mine wastes may

be a faster and more economical pathway to mineral extraction while offering valuable resources in

addition to recycling and extraction from high-grade ores.

The United Nations’ Sustainable

Supra., note 40 at 10.

Supra., note 45.

Supra., note 10

Id. at 15.

Id. at 36.

See generally, e.g., E. Holley et al., Critical Minerals and the Legacy Mine Environment: A Proposed Data Collection Program

to Help Address the U.S. Critical Minerals Gap. Colorado School of Mines: Payne Commentary Series, 2022.

https://www.mines.edu/global-energy-future/wp-content/uploads/sites/361/2022/10/Payne-Institute-Commentary-

Critical-Minerals-and-the-Legacy-Mine-Environment-final.pdf; M. de le Lurdes Dinis et al., Characterization of a Mine

Development Goals encourage reuse of residuals, remining, and reprocessing tailings to recover critical

minerals.

Public commenters, States, Tribes, and industry stressed the importance of remediating and reclaiming

AMLs. Some progress may be made by remining and reprocessing contaminated lands. Additionally,

Good Samaritan laws that limit liability for groups that are not linked to prior mining and who seek

to rehabilitate contaminated sites offer promise. Although there was not uniform agreement as to

the usefulness of Good Samaritan protections for significantly accelerating such reclamation,

commenters did agree that Good Samaritan laws are worth pursuing. Commenters also uniformly

agreed about the need for more funding to address the problem of abandoned hardrock mines,

although there was disagreement about how to source those funds.

V. Mining Law and System Today

As of 1872, all minerals other than coal on Federal public domain lands were open to location of

mining claims. As time passed and national interests evolved, Congress set aside national parks and

reserved other areas as off-limits to mining. Over time, Congress also removed a number of minerals

from the operation of the 1872 Mining Law. The Mineral Leasing Act of 1920 (Mineral Leasing Act)

made the disposition of oil, natural gas, coal, oil shale, phosphate, and sodium subject to discretionary

Federal leasing decisions, and established a royalty on the value of the minerals that were produced

and sold pursuant to that act. Today, however, almost all hardrock minerals, including gold and silver,

on Federal lands where the Mining Law applies remain subject to disposition under this Civil War

reconstruction era law. The Mining Law also applies to the critical minerals that are needed to support

our modern economy and fuel our transition to renewable energy—minerals like graphite, lithium,

and cobalt.

Mining on Federal lands is about much more than acquiring access to minerals, which is the primary

purpose of the Mining Law. Modern mines are subject to environmental requirements and often look

little like their predecessors. The environmental and resource management laws that overlay mineral

acquisition and development were enacted at a very different time in our nation’s history and under

very different imperatives. Laws like the NEPA and NHPA require consideration and disclosure of

environmental consequences prior to making decisions. The National Forest Management Act

Legacy Site: An Approach for Environmental Management and Metals Recovery. 27 Env’t Sci. Pollution Rsch. Int’l, Jan. 2020, p.

10103. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7089905/pdf/11356_2019_Article_6987.pdf.

United Nations Department of Economic and Social Affairs, Sustainable Development Goals. https://sdgs.un.org/goals.

30 U.S.C. § 181 et seq.

(NFMA)

and FLPMA,

both enacted in 1976, require a systematic inventorying of resources and

careful planning and management of the lands and resources charged to the BLM’s and USFS’s care.

NFMA and FLPMA also require the agencies to carefully balance a suite of competing uses. Despite

the emphasis on planning that developed a century after the Mining Law’s passage, the BLM and USFS

may not use land use planning to determine where mining claims can be filed or associated surface

disturbances may occur, making it difficult to balance the needs of mining with other multiple uses.

And while the Secretary of the Interior has the authority under section 204 of FLPMA to withdraw

Federal lands from operation of the Mining Law, such withdrawals are subject to valid existing rights,

meaning that valid mining claims predating a withdrawal are unaffected by that withdrawal. Land

management planning may, however, include stipulations on where and under what conditions

activities related to mine development—like road and utility development or overburden and waste

disposal—may occur.

Other laws, such as SDWA, CAA, CWA, and the Toxic Substances Control Act add additional

substantive requirements to minimize harm to public health and the environment.

The Biden-Harris administration also recognizes that past actions have disproportionately impacted

communities of color, Tribes, and Alaska Native Villages. The Administration is taking a number of

restorative actions, such as the establishment in E.O. 14008, “Tackling the Climate Crisis at Home and

Abroad,” which created a working group to “coordinate the identification and delivery of Federal

resources to revitalize the economies of coal, oil and gas, and power plant communities,” and the

Justice40 Initiative, which aims to direct at least 40 percent of the overall benefits of energy efficiency

and environmental remediation programs to disadvantaged communities.

A. Mining Law.

1. Mining Law of 1872, Location System

The General Mining Law

authorizes citizens to explore for valuable mineral deposits and stake or

“locate” mining claims on certain Federal lands. Mineral deposits that are locatable under the Mining

Law include non-metallics (such as gemstones, gypsum, and uncommon varieties of marble, among

16 U.S.C. § 1600 et seq.

43 U.S.C. § 1701 et seq.

Exec. Order No. 14,008 §§ 218, 223, 86 Fed. Reg. 7619, 7628, 7831 (Feb. 1, 2021).

30 U.S.C. § 22 et seq.

others) and metallic minerals (such as copper, gold, lead, molybdenum, nickel, silver, zinc, and many

other critical and non-critical minerals).

Lands that are open to exploration and the location of new mining claims under the Mining Law

include BLM-managed public domain lands, National Forest System lands reserved from the public

domain (managed by the USFS), and certain split-estate lands where the mineral estate is reserved to

the United States while the land surface is owned by Tribal, State, or private entities. There are also

some mining claims on National Park System and NWRS lands and other lands that are subject to

protective designations. Mining claims on protected lands were located at a time when those lands

were open to location under the Mining Law, and while the lands were subsequently withdrawn, valid

existing rights predating withdrawals may remain. The BLM is responsible for administering mining

claims on all Federal lands, regardless of surface ownership or management, while the relevant surface

management agency generally oversees mineral exploration, development, and reclamation, as

discussed below.

A valid mining claim provides the holder with a possessory interest in the claimed lands and the right

to develop the locatable mineral deposits in the mining claim, although legal title to the lands remains

with the United States. If a mining claimant makes a “discovery” of a valuable mineral deposit within

the boundaries of their mining claim and complies with all applicable requirements regarding the

location and maintenance of mining claims, the mining claim is considered a valid property interest

that can be asserted against all others, including the Federal government. The Mining Law does not

require mining claimants to develop or extract minerals from their mining claims within a certain

timeframe; rather, a mining claimant can hold their claim indefinitely without development so long as

they comply with all applicable laws and regulations, such as by paying an annual maintenance fee or,

in the case of a fee waiver, performing assessment work.

The lack of time limits is seen as a benefit to hardrock mineral developers because it provides

operators time to raise capital, identify, explore, develop, and begin producing valuable hardrock

deposits, which can easily take more than 20 years, often much longer than for other mineral types

such as oil, gas, or coal. This security of tenure also provides flexibility to accommodate advances in

technology or changes in commodity prices that can impact the commercial viability of specific

deposits.

See 43 C.F.R. §§ 3830.11, 3830.12 (describing minerals subject to location under the Mining Law, including certain

mineral materials that were located before a certain date or are considered “uncommon” because they possess a

distinct and special value). If there is a question about whether the mineral is locatable under the Mining Law, the BLM

will conduct a mineral examination before allowing mining operations. See id. § 3809.101.

Others, including Tribes, NGOs, and many members of the public, see the potentially indefinite nature

of claims as problematic. They fear Federal agencies may be reluctant to invest in site development,

interpretation, restoration, or other activities on public lands that are subject to mineral claims because

the benefits of those investments could be cut short by future mining activity. Other commenters

suggested that the existence of undeveloped claims may complicate renewable energy or fluid mineral

development if such development would be incompatible with mining. Still others noted that the

existence of undeveloped claims may hinder efforts to develop critical minerals by other miners,

especially where prior claims are held for speculative purposes or by an entity lacking the financial

resources to proceed to development in a timely manner.

Claimants may also locate mill sites of up to 5 acres on non-mineral land to construct processing

facilities or perform other activities “reasonably incident” to mineral development.

These are

generally referred to as “ancillary activities.” There is ongoing litigation over how many mill sites may

be located for each mining claim.

There has also been litigation in the U.S. Court of Appeals for the

Ninth Circuit over whether the Mining Law provides operators the right to conduct ancillary activities,

such as processing and tailings disposal, on certain mining claims.

DOI’s Office of the Solicitor recently

addressed this issue by releasing an opinion to clarify options for mine operators seeking to site mine

waste or tailings facilities on BLM-managed lands, and withdrew two previous opinions that were

found to contain material errors.

Due to the rapidly evolving nature of the issue and the active

litigation involving similar facts, the IWG is not making regulatory or policy recommendations on mill

sites or ancillary uses. The IWG believes these kinds of disputes highlight some of the difficulties in

relying on a 150-year-old access law for modern mining operations. Congressional action on these

questions would be helpful.

Other practical complications arise at the interface of the Mining Law and FLPMA’s withdrawal

authorization. One is the requirement to go through a withdrawal process under FLPMA on a periodic

basis (usually once every 20 years) in order to keep certain withdrawn lands from automatically

reopening to new mining claims. Occasionally, that process is not completed in time, such as at the

contaminated abandoned Zortman-Landusky mine site in Montana. During a 48-hour period during

October 2020 when the site was not withdrawn, 10 new claims were located, causing outrage among

nearby Tribal communities already suffering impacts to their lands and waters from the previous

30 U.S.C. § 42; 43 C.F.R. § 3832.30 (BLM mill sites); 36 C.F.R. Part 228, subpart A (USFS ancillary uses).

See generally, Earthworks v. U.S. Dep’t of Interior, 496 F.Supp 3d. 472 (D. D.C. 2020), stay lifted by Earthworks v. U.S. Dep’t

of Interior, 2023 U.S. App. LEXIS 1696 (DC. Cir. 2023).

See generally Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 33 F.4th 1202 (9th Cir. 2022) (involving the proposed

Rosemont Mine).

M-37077, “Use of Mining Claims for Mine Waste Deposition, and Recission of M-37012 and M-37057,” U.S.

Department of the Interior Office of the Solicitor, May 16, 2023.

mining operations.

The new claims and potential for future mine development complicate years of

efforts to remediate the abandoned site. At Browns Canyon in Colorado, a gap in the withdrawal

period allowed a number of mining claims to be staked within a high-value recreation area along the

Arkansas River that was shortly thereafter designated a national monument.

Mineral development

would complicate, if not compromise, efforts to manage the national monument to protect the

resources that led to its designation.

Another issue involves the location of new claims on abandoned or historic mine lands. An increasing

number of claims may be located on AML sites because of growing interest in reprocessing mine

tailings or developing new mines at AMLs to obtain new supplies of critical minerals. While such claims

are a positive development to the extent that such sites can be a new source of minerals and

remediated in whole or in part by a new operator, it is also potentially problematic if new claimants

hold lands for speculative purposes or lack the capacity to proceed with timely redevelopment. Some

mining claimants also object to Federal and State efforts to remediate health or safety hazards on

their claims, asserting that remediating these features would complicate future mining efforts or

diminish the value of their claim. The existence of such objections can create additional hurdles or

dissuade an agency from pursuing a non-time-sensitive reclamation.

One issue that has been temporarily addressed by Congress is the ability of holders of valid mining or

mill site claims to obtain fee title or “patent” to the claims.

After a mining claimant obtains a patent

for a claim, the land encompassed by the claim is transferred out of public ownership and into private

hands. Unless otherwise provided by law, exploration and development of the mineral deposits on

those lands are no longer subject to Federal regulations governing mining operations under the Mining

Law. In 1994, Congress imposed a moratorium on BLM’s processing of patent applications, which has

been extended each year since.

The durability of the moratorium, however, remains uncertain

because it depends on continued congressional extensions.

Mining claimants pay no Federal royalties on most hardrock minerals extracted from Federal land.

100

Mining claim holders pay only one-time claim location fees and processing fees (location fee $40,

Amanda Eggert, “New Mining Claims at Zortman Prompt Push for Investigation.” Montana Free Press, Oct. 6, 2021.

https://montanafreepress.org/2021/10/06/mine-claims-in-zortman-promp-call-for-investigation/.

Notice of Proposed Withdrawal and Opportunity for a Public Meeting; Colorado, 78 Fed. Reg. 20134 (Apr. 3, 2013).

See 30 U.S.C. §§ 29, 37, 42; 43 C.F.R. Part 3860.

See Department of the Interior and Related Agencies Appropriations Act of 1995, Pub. L. No. 103-332 § 112, 108

Stat. 2499, 2519 (Sept. 30, 1994) (moratorium). See also U.S. Gov’t Accountability Off., GAO-21-299, Federal Land

Management: Key Differences and Stakeholder Views of the Federal Systems Used to Manage Hardrock Mining, 2021, p.

16 (explaining that the moratorium has been extended annually ever since it was first imposed).

100

In instances where a single site includes minerals subject to disposal under the Materials Act of 1947 or the mineral

leasing laws, as well as the Mining Law, the operator must obtain all applicable authorizations and pay any related fees or

royalties for the non-locatable minerals removed.

processing fee $20), and claim holders that do not qualify for fee waivers pay annual maintenance

fees ($165 per lode claim or site, and $165 for each 20 acres or portion thereof for a placer claim).

101

The use of these fees is discussed in more detail in the chapter on Royalties and Revenues. These

fees, however, are small in comparison to the value of the minerals developed, and taxpayers receive

little if any compensation for the extraction and development of public goods. Mining claimants are

also not required to report to the Federal government what locatable minerals are being extracted

from Federal lands or the amount or value of the minerals extracted. The lack of reporting severely

complicates assessing the extent to which domestic production is likely to meet present and future

needs.

2. Mineral Leasing and Sale Authorities and System

On acquired lands

102

and certain public domain lands,

103

minerals that would otherwise be locatable

may be accessed through a leasing system if the areas have been identified by the BLM or USFS as

open to mineral activity in a land management plan. Leasing of hardrock minerals on certain acquired

lands was authorized by the Act of March 4, 1917,

104

and subsequent laws further adjusted the lands

subject to hardrock mineral leasing, and gave the Secretary of the Interior the authority to conduct

such leasing on USFS lands.

Although the Secretary of the Interior has authority to issue hardrock permits and leases on acquired

National Forest System lands, that authority is subject to consent by the USFS, and mineral exploration

and development must proceed in accordance with any conditions specified by the USFS to protect

the primary purposes for which the lands were acquired. The USFS may generally deny consent or

condition consent for use on the protection of surface resources. The USFS is also responsible for

responding to BLM requests for consultation on specific operating plans regarding surface use and

reclamation. The BLM administers these mineral leases under Interior’s regulations governing leasing

of solid minerals other than oil shale and coal at 43 C.F.R. Part 3500.

101

These are the current maintenance and location fees. The BLM adjusts the fees at least every five years using the

Consumer Price Index published by the Bureau of Labor Statistics of the Department of Labor. The maintenance and

location fees were last updated in 2019. See Required Fees for Mining Claims or Sites, 84 Fed. Reg. 31219 (July 1, 2019).

102

Acquired lands are lands or interests in land that the United States obtained via purchase, gift, condemnation, or

other legal process. Acquired lands are distinct from the public domain, which was ceded to the Federal government by

the Second Continental Congress or acquired by the Federal government via treaties with sovereign governments.

103

See, e.g., 17 Stat. 465 (1873) (codified as amended at 30 U.S.C. § 48) (excluding Michigan, Wisconsin, and Minnesota);

19 Stat. 52 (1876) (codified as amended at 30 U.S.C. § 49) (excluding Missouri and Kansas). See 43 C.F.R. § 3503.13 for

a full list of lands on which hardrock mineral leases may be issued.

104

16 U.S.C. § 520.

Prospective miners must follow the steps detailed in Interior’s regulations in order to obtain a

prospecting permit, exploration license, or lease. The terms of the permit or lease provide the

operator with a temporary right of use and occupation. A prospecting permit is effective for an initial

term of two years, and the BLM may extend it for up to four more years. An exploration license is

in effect for two years. An initial lease may not exceed 20 years but can be renewed for 10 years at

the end of the initial term and for subsequent 10-year periods. Operators pay Federal royalties on

minerals produced from leased lands and are required to report production data, which includes the

minerals being extracted and the amount or value of those minerals. Operators also pay one-time

permit or lease fees and annual per-acre rental fees. While hardrock leasing has been available on

acquired lands for decades, there are relatively few hardrock leases in practice. As of 2018, 97 percent

of the 748 authorized hardrock mining operations on Federal lands were authorized under the

location system.

105

The Materials Act of 1947 (Materials Act),

106

authorizes the disposal of mineral materials such as

common varieties of sand, stone, and gravel via direct sale or free use when the disposal: (1) is not

otherwise expressly authorized by law, including the U.S. mining laws; (2) is not expressly prohibited

by laws of the United States; and (3) would not be detrimental to the public interest. The BLM

administers disposal of mineral materials under Interior’s regulations at 43 C.F.R. Part 3600. The USFS

manages mineral materials under its regulations at 36 C.F.R. Part 228 Subpart C. Notably, the BLM is

required to sell mineral material resources for “not less than fair market value,”

107

so even sand, stone,

and gravel generate more direct revenue for taxpayers than hardrock minerals such as gold, silver,

copper, and critical minerals.

Many NGOs, stakeholders, and a number of Tribes support either the establishment of a nationwide

hardrock leasing system to replace the current claim system or comprehensive land-use planning to

identify areas that should be made off-limits to mineral exploration and development. For example,

one letter from 22 environmental and conservation groups stated:

A leasing regime paired with modern rules for hardrock minerals would afford many

benefits. It would create a framework for land managers to undertake comprehensive

planning in a transparent and open public process. A comprehensive planning

approach can provide a certain, upfront determination whether or not lands and areas

are suitable for hardrock mining. A leasing regime would afford Tribes and local

communities early and comprehensive engagement and help identify areas that should

be off-limits from mining due to other resources, land uses, or values that are

105

U.S. Gov’t Accountability Off., GAO-21-299, Federal Land Management: Key Differences and Stakeholder Views of

the Federal Systems Used to Manage Hardrock Mining, 2021, p. 10. https://www.gao.gov/products/gao-21-299.

106

61 Stat. 681 (codified as amended at 30 U.S.C. § 601 et seq.).

107

43 C.F.R. § 3601.6(b).

incompatible with hardrock mining development. A leasing regime, as proposed in H.R.

7580, would reduce, and even avoid some of the conflicts that result under the current

law, obtaining better outcomes for Indigenous and mining-affected communities, land

managers, and industry. This is because a leasing regime’s comprehensive land use

planning (and reasonable royalties) will afford mining-affected communities better

access to information and opportunities to improve results. It is also necessary for

providing a fair return to taxpayers and helping ensure mining lessees earn a social

license to operate.

108

However, the mining industry cautions against adopting a leasing system for hardrock minerals and

identified a number of drawbacks to the existing Federal hardrock leasing system. In particular, they

point to the small number of mining operations under the hardrock leasing system as evidence that

the system has failed. As a mining industry group states:

The U.S. currently has a process for leasing federal hardrock minerals on acquired

lands that does not work. Unrealistic spatial and temporal constraints in the federal

leasing system impede exploration, are incompatible with hardrock mining timelines,

do not generate substantial federal revenue, and do not provide adequate security of

tenure. Consequently, there is very little mining on acquired lands despite their

mineral potential.

109

The IWG notes, however, that most countries and local jurisdictions (including U.S. states for state-

owned land) use a leasing system for hardrock minerals. Even those that maintain a claim system for

exploration, including Canadian provinces, require transfer to a lease for commercial production.

110

While few, if any, commenters expressed support for the existing U.S. hardrock leasing system,

international experience demonstrates that hardrock leasing systems are workable if designed

properly.

108

Letter from Arizona Mining Reform Coalition et al. to Steven Feldgus, Deputy Asst. Sec., Lands and Minerals Mgmt.,

Dep’t of the Interior, Interagency Working Group, Aug. 30, 2022, p. 2.

https://www.biologicaldiversity.org/programs/public_lands/mining/pdfs/Interagency-Working-Group-Mining-Comments-

leasing-083022.pdf.

109

American Exploration & Mining Association Response to Request for Information to Inform the Interagency Working

Group on Mining Regulations, Laws and Permitting, Apr 30, 2022, p.11. https://www.miningamerica.org/wp-

content/uploads/FINAL-AEMA-Response-to-IWG-RFI-August-08-30-22.pdf.

110

Supra., note 9, pp. 1, 49, and 63.

B. Mining Regulations

 Mining Regulations on BLM-managed public lands

FLPMA, when enacted in 1976, maintained the majority of the Mining Law, but it does require that

the Secretary of the Interior, by regulation or otherwise, prevent unnecessary or undue degradation

(UUD) of the public lands.

111

FLPMA and Interior’s surface management regulations establish

procedures and standards to ensure that mining operators and claimants prevent UUD to the public

lands, and to provide for maximum coordination with appropriate State agencies.

112

FLPMA does not

define UUD but gives the Secretary of the Interior broad latitude in determining what constitutes

UUD, which the agency did in the context of hardrock mining through the regulations at 43 C.F.R.

subparts 3715, 3802, and 3809. FLPMA, BLM regulations, and policies found in Instruction

Memoranda, Manuals, and Handbooks, also guide the BLM in engagement with Tribal Nations and the

public during the evaluation of locatable mineral development proposals.

Interior’s mining regulations under FLPMA were promulgated in 1980, then comprehensively

amended in 2001.

113

The regulations governing mining operations under the Mining Law on BLM-

managed public lands are codified at 43 C.F.R. Parts 3715, 3802, and 3809, with detailed guidance to

employees on implementing those regulations in BLM Handbooks H-3809-1, “Surface Management”

and H-3809-2 “Surface Management Bond Processing.”

114

Whether and how the public is engaged in BLM’s permitting process depends on the category of

exploration or mining operations. For regulatory purposes, the BLM divides operations into three

categories according to the size, type, and location of the operations. The first category is “casual

use.”

115

Casual use involves no or negligible surface disturbance, generally includes the collection of

samples using hand tools, and does not include the use of mechanized earth-moving equipment,

occupancy, or operations in areas where the cumulative effects of the activities result in more than

negligible disturbance.

116

Casual use requires no notice by the operator to the BLM prior to the

initiation of activity.

111

43 U.S.C. § 1732(b). See also 43 C.F.R. § 3809.5 (defining “unnecessary or undue degradation”).

112

43 C.F.R. § 3809.1.

113

Surface Management of Public Land Under U.S. Mining Laws; Proposed Procedure to Minimize Adverse

Environmental Impacts, 45 Fed. Reg. 13956 (Mar. 3, 1980); Mining Claims Under the General Mining Laws; Surface

Management, 66 Fed. Reg. 54834 (Oct. 20, 2001).

114

Bureau of Land Mgmt., H-3809-1, Surface Management Handbook (2012). https://www.blm.gov/sites/blm.gov/files/H-

3809-1.pdf.

115

43 C.F.R. § 3809.10(a).

116

43 C.F.R. § 3809.5.

The second category involves "notice"-level activities. Notice-level activities are exploratory mineral

investigations of 5 acres or less of public lands and less than 1,000 tons of bulk sampling. A notice

submission is provided to and processed by the local BLM Field Office. The notice contains operator

information; a description of activities and measures taken to prevent UUD, including maps and the

schedule of operations; a reclamation plan; and a reclamation cost estimate.

117

Upon receipt of the

notice, the BLM reviews the notice for completeness, to ensure that implementation of the proposed

activities would not cause UUD, and to ensure that the notice conforms to the performance standards

in the BLM’s regulations. The BLM has 15 days to review the notice (with a potential 15-day

extension). If the notice is complete and BLM determines the proposed activities will not cause UUD,

the operator may commence the activities set forth in the notice after the operator provides BLM

with a financial guarantee for reclamation that meets the applicable requirements.

118

Reclamation of

surface disturbance according to the reclamation plan must occur upon completion of exploration or

expiration of the notice, and before release of the financial guarantee.

119

The notice is valid for two

years, but the operator is allowed to seek subsequent two-year extensions.

120

When a notice is filed, it is recorded in the BLM’s publicly accessible database, LR2000

(https://reports.blm.gov/reports/LR2000). BLM is currently transitioning from LR2000 to the Mineral

and Lands Records System (https://reports.blm.gov/reports/MLRS). These systems do not currently

contain a searchable map function and require a significant amount of familiarity with mining

operations, operators, and the claim system in order to identify specific notices. Field offices may also

make notices available in the publicly accessible rooms within those field offices.

BLM only reviews notices for completeness and as an exercise of its enforcement power to protect

against UUD and does not formally approve notices. There is no discretionary agency action and

therefore no obligation to conduct NEPA analysis, consult under the Endangered Species Act (ESA),

or consult under E.O.s on Tribal consultation. Unless the operator voluntarily conducts outreach, the

public and Tribes are unlikely to be made aware of impending notice-level operations until activity has

commenced. As noted earlier, notice level activities may involve exploratory mineral investigation of

up to 5 acres and less than 1,000 tons of bulk sampling.

In areas designated as Wild and Scenic Rivers or areas nominated for addition to the Wild and Scenic

Rivers system, controlled or limited use lands in the California Desert Conservation Area, Areas of

Critical Environmental Concern, areas designated as closed to off-road use, lands or waters containing

listed or proposed Threatened and Endangered species, and National Monuments and National

117

43 C.F.R. § 3809.301.

118

See 43 C.F.R. §§ 3809.311-313, 3809.500.

119

See 43 C.F.R. §§ 3809.332, 3809.590.

120

43 C.F.R. § 3809.332.

Conservation Areas, any operations above casual use require the submission and approval of a plan

of operations.

The third category of mining operations on BLM-managed lands involves mineral exploration or

production operations that cause a cumulative surface disturbance of more than five acres, or any

activity other than casual use in specially designated conservation areas such as the ones listed directly

above. Activities within this category require submission and approval of a plan of operations.

121

Following receipt of a complete proposed plan of operations and before taking any action on the

proposed plan, the BLM publishes a notice of availability of the plan in a local newspaper of general

circulation, and accepts public comment for at least 30 days. The BLM often combines this step with

the initiation of scoping for an Environmental Assessment (EA) or Environmental Impact Statement

(EIS) analyzing the plan, which typically come with 30-day or 45-day comment periods, respectively.

122

The public is only informed and given an opportunity to comment after the complete plan of

operation is received and the NEPA process has begun. For EA-level operations, there is no specific

requirement governing the timing of public participation, although BLM does sometimes conduct

public scoping for EAs for particularly large or complex operations, or ones expected to have a

significant level of public interest.

 Forest Service Mining Regulations

The USFS promulgated regulations in 1974 to minimize the surface effects of mining activities on

National Forest System lands and these regulations not been significantly revised since then.

123

Mining-

related effects that are essentially no greater than what an average forest user would cause require

no specific authorization and therefore no review. NEPA analysis and public disclosure are also not

applicable because no review or authorization is required. Operators whose mining-related effects

might cause a significant disturbance are required to submit a Notice of Intent (NOI) that describes

their project to the District Ranger. Within 15 days of receipt of the NOI, the operator will be notified

whether a plan of operation is required before operations can begin. A plan of operation is required

where a significant disturbance to surface resources is likely, and a reclamation plan and bond will

need to be included.

121

See 43 C.F.R. §§ 3809.411 (explaining what action BLM will take upon receiving a plan of operations), 3809.11

(explaining which types of actions require submission of a plan of operations); see also Bureau of Land Mgmt., H-3809-1,

Surface Management Handbook 4-36, § 4.4.1.3.6 (2012) (explaining that BLM must solicit public comment on Plans of

Operations and may not issue a decision on a Plan before considering all timely submitted public comments).

122

See 40 C.F.R. § 1507.3(f)(4).

123

See 36 C.F.R. Part 228.

The USFS only reviews NOIs to determine if a significant disturbance would occur and does not

conduct any NEPA analysis or consultation under the NHPA. If a plan of operations is not required

by the USFS and more information is not necessary, then the operations may commence after the

15-day period. There is therefore often only minimal, if any, environmental review, public engagement,

or Tribal consultation on an NOI. Unlike BLM’s requirements, however, neither a reclamation plan

nor a bond is required for notice-level operations.

Mineral operations that will involve significant surface disturbance require the submission of a plan of

operation. “Significant surface disturbance” is not defined by statute or regulations, but in Forest

Service Manual (FSM) 2810 significant surface disturbance depends on site-specific conditions. When

a plan of operation is required, the USFS first reviews the plan for completeness. The USFS does not,

by policy, conduct pre-application meetings or meet with applicants prior to the submission of the

complete plan of operations. After the USFS accepts a proposed plan of operations as complete, the

USFS begins the NEPA process and the project is noted on the Schedule of Proposed Actions (SOPA)

(https://www.fs.usda.gov/sopa/). The SOPA site is used by the USFS to inform the public of proposed

actions the agency is currently evaluating. The SOPA website contains a simplified searchable map

function to ensure the public can access current project-related NEPA information and timelines.

Next, the agency follows 36 C.F.R. 228 Subpart A regulations and FSM 2810 direction to review,

potentially approve, and administer a proposed operation. As with the BLM process, the public is only

informed and given an opportunity to comment after a complete plan of operation is received and

the NEPA process has begun.

C. Methods for removing land from operation of the mining law

Not all Federal lands are available for mineral development, and there are several processes that may

be used to withdraw Federal lands from location and entry under the 1872 Mining Law. The two

most common ways to withdraw lands from mineral location and entry (“withdrawals”), subject to

valid existing rights, are either through a congressional act or through a public land order signed by

the Secretary of the Interior.

124

A third method, less commonly used, is by Presidential Proclamation

pursuant to the Antiquities Act.

125

Withdrawals implemented through congressional acts are permanent, unless specified otherwise, and

can affect large landscapes. Examples of these acts include the Wilderness Act of 1964, which provided

a nearly 20-year period where new claims and patents were allowed in national forest wilderness

124

See generally, e.g., Public Land Order No. 7875 for Emigrant Crevice Mineral Withdrawal; Montana, 83 Fed. Reg.

51701 (Oct. 12, 2018) (withdrawing approximately 30,370 acres of National Forest System lands from location and

entry under the United States mining laws).

125

54 U.S.C. §§ 320301-03.

areas before those lands were withdrawn from future mineral availability,

126

and the Wild and Scenic

Rivers Act of 1968, which withdrew river sections that have “wild” designations.

127

The administrative withdrawal process allows for applications to the Secretary of the Interior, through

the BLM, for Secretarial withdrawals of Federal lands, as authorized by FLPMA. The applicant agency

and the BLM work together to prepare environmental analyses and other resource reviews to inform

the Secretary of the Interior regarding the withdrawal request. The Secretary of the Interior reviews

the application and supporting materials and determines whether to issue a public land order.

128

Applications for administrative withdrawals are typically submitted for areas that require protection

beyond the agency’s surface management regulations, or areas needed for administrative sites, the

location of facilities, or other proprietary purposes. A mineral potential report is either included with

the application or prepared after the application is submitted, which ranks the occurrence and

certainty of mineral deposits in the withdrawal application area as low, medium, or high, thereby

informing the deciding official of what may be foregone if the withdrawal is implemented. The

Secretary of the Interior’s withdrawal authority set forth in section 204 of FLPMA includes a

requirement to publish notice of a withdrawal proposal or application in the Federal Register, which

initiates a 90-day public comment period and offers the opportunity for members of the public to

request a meeting on the proposal or application. Administrative withdrawals of 5,000 acres or more

under FLPMA are limited to 20 years, although they can be extended by the Secretary if warranted

by the purpose for which they were first made.

VI. Mine Permitting

While the Mining Law’s process for staking a claim to locatable mineral resources has remained largely

unchanged over the past century and a half, the process of permitting mines has changed considerably

during that time, particularly with the enactment of Federal and State environmental statutes over the

past fifty-plus years.

129

NEPA is the bedrock environmental statute for the United States, requiring

Federal decision makers to evaluate and consider the potential environmental impacts of proposed

agency actions and inform the public of those impacts prior to making a decision.

130

The NEPA process

is set out in implementing regulations,

131

and Federal agencies also develop their own agency NEPA

126

16 U.S.C. § 1133(d)(3).

127

16 U.S.C. § 1280(a)(iii).

128

43 C.F.R. Subpart 2310.

129

See NFMA, 16 U.S.C. § 1600 et seq.; FLPMA, 43 U.S.C. § 1701 et seq.; NEPA, 42 U.S.C. § 4321 et seq.

130

See 42 U.S.C. § 4332(2)(C).

131

See 40 C.F.R. § 1500.1 et seq.

procedures.

132

NEPA is applied to mining and exploration activities requiring a plan of operations,

although, as noted above, NEPA procedures are not triggered for casual use or notice-level operations

because these actions do not involve administrative discretion. In addition to complying with NEPA,

proposed mining and exploration operations must also obtain a number of permits under other

Federal and State laws. The path to securing the multiple permits and authorizations needed to begin

mineral development can be arduous and time-consuming, particularly if minerals occur in sensitive

areas.

A. Environmental Review and Permitting Process

NEPA directs Federal agencies to evaluate the potential environmental impacts of “major Federal

actions significantly affecting the quality of the human environment,”

133

which may include Federal land

management planning and mine permitting (but not the location of claims because claim staking does

not involve discretionary Federal action). NEPA’s requirements may be satisfied through application

of a categorical exclusion or completion of an EA or an EIS, depending on the size, scope, and potential

impact of the proposal. A decision is made only after fulfilling NEPA compliance. Following completion

of an EA, the agency will conclude either that a more comprehensive EIS is required or that a Finding

of No Significant Impact is appropriate. Where an agency completes an EIS, it will prepare a Record

of Decision (ROD) approving one of the alternatives considered. The selected alternative may be the

No Action Alternative, effectively rejecting the proposed action. Administrative appeals or objections

to the decision, consistent with the applicable agency’s administrative review procedures, may follow.

Litigation may also occur at this point, as a NEPA decision is a final agency action.

The BLM and USFS mine approval process starts with the applicant’s submission of a proposed mine

plan of operations. The proposed mine plan is reviewed for completeness, and the agency may return

incomplete applications to the proponent. According to the GAO, incomplete and vague operating

plan submissions and the time required to respond to requests for additional information represent

the most common cause of delay when reviewing proposed operating plans.

134

The NEPA process

begins following the submission of a complete application. Notably, GAO’s third-most-cited cause of

operating plan delays is operator-initiated changes to key parts of a proposed mine plan.

135

Compliance with laws applicable to discretionary federal agency decision-making, including the NHPA

and ESA, among others, is conducted concurrently with and as part of the NEPA analysis that supports

132

See, e.g., Bureau of Land Mgmt., H-1790-1, National Environment Policy Act Handbook, 2008; U.S. Forest Serv.,

Forest Service Manual 1900 – Planning, Chapter 1950 – Environmental Policy and Procedures, 2012.

133

42 U.S.C. § 4332(2)(C).

134

Supra., note 5.

135

Id.

mining-related BLM and USFS decisions. Federal agencies’ statutory obligations under NEPA and

NHPA are independent, but integrating the processes can create efficiencies, promote transparency

and accountability, and support a broad discussion of effects to the human environment. Section 106

review must be completed prior to the issuance of a federal decision so that a broad range of

alternatives may be considered during the planning process. Because the information gathering and

consultation done in the Section 106 review should inform the NEPA review and vice versa, the timing

of both reviews should be coordinated.

136

Additional mining-related decisions or permits may be

required by other Federal or State agencies in accordance with the CAA, CWA, ESA, SDWA, or

other statutes as necessary. Common permits include discharger permits under section 402 of the

CWA (NPDES permits), and permits to place fill material in wetlands or waters of the United States

under section 404 of the CWA. These permits may be standardized nationwide (general) permits or

more involved individual permits for a particular project, depending on the size and intensity of the

impacts involved. Consultation under section 7 of the ESA will also be required if the proposed

operation is likely to impact a listed species or its habitat. The exact permits and consultations required

for a mining project are dependent on a number of factors, including location, type of operation,

quantity and type of wastes, water, and air emissions generated, and how the wastes and waters are

managed or disposed of.

Many of the analytical requirements of these permitting processes overlap. For example, BLM or USFS

will evaluate surface uses and impacts and coordinate with other agencies responsible for

environmental reviews or decisions during the NEPA process, depending on which agency has

jurisdiction or expertise regarding which resource. The USACE is responsible for CWA section 404

permitting in non-delegated states, as well as Rivers and Harbors Act of 1899 sections 10 and 14

permitting. The USACE may prepare its own NEPA documents or adopt documents prepared by or

in cooperation with the BLM or USFS.

137

Therefore, efficient federal permitting processes require

coordination with the USACE to ensure that EISs are sufficient to support decisions.

Similarly, to ensure compliance with the ESA and other wildlife-related statutes when engaged in

discretionary decision-making, the BLM and USFS must coordinate with the FWS and the National

Marine Fisheries Service (NMFS), which will review potential impacts on Federally protected wildlife,

fish, habitat, and plants. Impacts on species and habitats are often evaluated in coordination not only

with agencies like the BLM and the USFS, but also with Tribal and State wildlife management agencies

that maintain their own sensitive species lists. These agencies must coordinate and collaborate, even

136

Council on Environmental Quality and Advisory Council on Historic Preservation, “NEPA and NHPA: A Handbook

for Integrating NEPA and 106”, 2013. https://www.achp.gov/digital-library-section-106-landing/nepa-and-nhpa-handbook-

integrating-nepa-and-section-106.

137

40 C.F.R. §§ 1500.4(p), and 1500.5(j).

if their management priorities diverge.

138

Critical agency staff may be unavailable to assist with

environmental analyses or permit application review, for example, if they are temporarily reassigned

in response to a wildfire or another urgent issue. Limited or ineffective interagency coordination

during plan of operation review was identified by the GAO as a potential source of delay, though it

occurs roughly half as often as problems with permit applications and is likely to produce less significant

delays.

139

In addition, insufficient resources, especially for agencies implementing ESA, can cause delays

when there is only one biologist or one resource specialist who can complete the project.

The Nuclear Regulatory Commission may also be involved in mine projects that have on-site

processing that requires a source material license, unless a project is located in a State where the BLM

State Office has an agreement with the Commission for the permitting of uranium mines.

The EPA is required by statute to review all draft EISs.

140

In addition, EPA may be asked to review

permit applications under the SDWA, CWA NPDES program, and CAA where a project would

occur in non-delegated states or on Tribal lands. EPA may also conduct oversight and provide technical

assistance in delegated states, as needed. EPA frequently reviews CWA 404 permit applications, and

the USACE may coordinate with EPA during the CWA 404 permitting process.

In addition, States generally regulate—either with sole jurisdiction or along with the Federal

government—mine plans, waste management, groundwater use and impacts, reclamation, surface

water use, fish habitat, and tailings dam safety. Most States have primacy over CAA permitting and

State NPDES permitting. EPA collaborates with States and Federal agencies to conduct NEPA and

permitting analyses (within EPA authorities) concurrently that help in decision-making. States are also

responsible for issuing water quality certifications under section 401 of the CWA before permits

under section 404 of the CWA can be issued. Several States are also authorized to issue CWA section

404 permits. Most mining wastes are excluded from the definition of hazardous waste, and therefore

are exempt from RCRA Subtitle C regulations. EPA has not developed specific requirements for

mining waste rock and most mine tailings under RCRA Subtitle D. States have authority under Subtitle

D to implement solid waste programs for mining operations.

Some states have State Environmental Policy Act regulations that require a State environmental impact

review before decisions are made, in which case a joint Federal and State EIS may be developed.

138

The National Park Service, for example, is directed “to conserve the scenery, natural and historic objects, and wild life

in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such

manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 54 U.S.C. §

100101(a). The BLM, in contrast, operates under a multiple use and sustained yield mandate that includes (but is not

limited to) development of range, timber, and mineral resources. See 43 U.S.C. §§ 1732(a) and 1702(c).

139

Supra., note 5, p. 22.

140

42 U.S.C. § 7609(a).

Other States do not require environmental policy act reviews before issuing permits. Where NEPA

is required, it is imperative that the NEPA lead agencies coordinate with State agencies during the

mine review and NEPA process.

Only after the permitting and consultation process concludes may mine construction and operations

begin, and mining companies are subject to ongoing environmental and monitoring requirements. One

commenter wrote, “Streamlining the process through greater coordination between Federal and State

reviews can deliver timely decisions without sacrificing public engagement or environmental

analyses.”

141

Substantial expansions of or changes to a mining operation, as commonly occurs during

the mine life, could trigger additional NEPA review (e.g., a supplemental EIS or revised EA) and

supplemental permitting analyses.

B. Application of BLM’s and USFS’s different standards

FLPMA does not define UUD but gives the Secretary of the Interior broad latitude in determining

what constitutes and how to prevent UUD. BLM’s regulations define “unnecessary or undue

degradation” to mean conditions, activities, or practices that: fail to comply with the performance

standards of 43 C.F.R. § 3809.420, the terms and conditions in plans of operation or as described in

a notice, or any other Federal and State laws related to environmental protection and protection of

cultural resources; that are not “reasonably incident” to prospecting, mining, or processing; or that fail

to meet a stated level of protection or reclamation required by specific laws in certain areas designated

for conservation.

142

The regulations set out both general and specific performance standards with

which operators are required to comply.

143

The USFS’s regulations requiring submission of a plan of operations are triggered by a “significant

surface disturbance,” and like UUD, this term is not defined by statute. Instead, USFS’s implementing

policy manual, FSM 2810, indicates that whether a significant surface disturbance occurs is determined

based on site-specific conditions. This broad direction can result in inconsistent processing.

144

A report

published by the National Research Council highlighted the variability of time to process exploration

proposals on BLM and USFS lands and recommended amending USFS regulations to allow notice-

level exploration activities similar to the approach on BLM lands.

145

141

Greater Fairbanks Chamber of Commerce Response to Request for Information to inform Interagency Working

Group on Mining Regulations, Laws, and Permitting, 2022.

142

43 C.F.R. § 3809.5.

143

43 C.F.R. § 3809.420.

144

The term “significant” under the USFS mineral regulations does not have the same meaning as “significant” as defined

under the NEPA regulations.

145

Supra., note 55, p. 97.

Industry commenters generally praised BLM’s standards as being clear, providing for consistent

application for planning purposes, and explaining when a notice or a plan of operation is required.

However, industry groups also noted problems with differing practices and inconsistent application of

NEPA across BLM state, district, and field offices. Inconsistent application of NEPA—such as differing

determinations regarding the level of detail needed in a mine plan or reclamation plan, the level of

detail needed for alternatives, the amount and type of baseline data required for the mine plan and

alternatives, waste characterization requirements, and environmental modeling—leads to confusion

by industry that can delay the environmental analysis and/or permitting process. Some industry

comments suggested that the USFS should update its regulations to the extent allowed under its

authorities to make those regulations more consistent with BLM’s standards and to provide for similar

consistent implementation.

Many NGOs, Tribes, and Tribal organizations believe that the current Interior regulations need to be

updated. As the group of 40 Tribal and Indigenous Organization and Conservation Group Petitioners

stated in their Rulemaking Petition, “BLM’s existing hardrock mining rules perpetuate inequities while

failing to adequately protect tribal resources and other natural resources. Modernizing BLM’s hardrock

mining rules would help correct these unacceptable risks and burdens that the current rules all too

often permit.”

146

Among other specific concerns, the petitioners assert that Interior’s regulations

implementing and defining UUD are insufficient and must be strengthened to adequately protect

public lands, consistent with FLPMA.

147

Many of these commenters advocate for eliminating the BLM’s

notice-level activities, contending that these activities can harm sensitive resources, bias future

decisions, and disenfranchise interested parties who do not receive notice of pending mineral

exploration or development.

C. Data on Environmental Review and Permitting Timeframes

Proposals to increase permitting speed are often characterized, rightly or wrongly, as efforts to

shortcut environmental reviews or public input. Determining how to improve the environmental

review and permitting process requires an accurate understanding of permitting timelines and the

multiple interrelated factors that can contribute to delays. Unfortunately, agencies do not always

collect the information needed to identify points in the permitting process where delays occur or to

identify the causes of those delays. Agencies also do not always collect or maintain information in

ways that allow easy comparison across programs, complicating efforts to identify best practices and

expand their application. Data may also not allow agencies to determine whether changes produce

the desired effect.

146

Supra., note 14, p. 6.

147

Id. at app. iii.

The most recent and comprehensive mining-specific data the IWG is aware of comes from the 2016

GAO report, “Hardrock Mining: BLM and Forest Service Have Taken Some Actions to Expedite the Mine

Plan Review Process but Could Do More.” The GAO’s review considered all mine plan proposals and

expansions reviewed by the USFS and BLM during a 4-year period, not distinguishing between the

level of NEPA review completed (whether EA or EIS), and found that of the 68 mine permits

approved by the BLM and USFS between 2010 and 2014, the average processing time was

approximately 2 years, and more than half were processed in less than 18 months.

148

GAO excluded

exploration plans and plan modifications, analyzing only new mines and mine expansion proposals.

The IWG also examined the EPA’s NEPA records to determine the time typically taken to complete

an EIS for new hardrock mining projects (not including mine expansions) reviewed by BLM or the

USFS. Since 2000, the USFS and BLM have brought 33 new mine project EISs to a ROD. The time

from submittal of a mine plan of operation to ROD and to resolve any subsequent litigation ranged

from 1.5–15 years, and from publication of a NEPA NOI to ROD and to resolve any subsequent

litigation ranged from 1–15 years. The data indicate that 42% of the EISs were completed in 4 years

or less

149

and 55% of the EISs were completed in no more than 5 years. A detailed review of BLM

data by the IWG for mining projects approved between Fiscal Year (FY) 2013 and April, 2023, found

the average EIS duration to be 3.1 years, with a median of 3 years. Including the entire process—from

the first appearance of the example in BLM’s records to the authorization of ground disturbing

activities, which will include time needed to initiate NEPA and for the operator to provide the required

financial assurance, among other steps—the average time was 4.6 years, and the median time was 4.2

years.

The difference between figures may be attributable to GAO’s review of a shorter period (4 years vs.

10 or 20 years), GAO’s inclusion of projects analyzed under an EA, different ways of accounting for

litigation-related delays, and different end dates (ROD issuance vs authorization of ground

disturbance). Of the 33 EISs, there were 6 EISs that took more than 10 years to complete to a final

ROD. Two of these were due to significant changes in the mine plans that warranted supplemental

EISs. Three of these were due to litigation that required supplemental EISs. And one of these was due

to both litigation and significant changes in the mine plan. Legal challenges to the adequacy of an EIS,

however, occur only after the issuance of a ROD.

150

Including litigation-driven delays in the time

required to complete a ROD may therefore incorrectly imply a delayed NEPA process. These outliers

may be better understood not as the time required to complete the NEPA process but instead as

the time to complete the NEPA process, resolve any subsequent litigation, and then revise NEPA

documents as ordered by a court.

148

Supra., note 5, p. 13.

149

Measured between time NOI and ROD published.

150

There may be, in rare instances, pre-decisional legal challenges based on allegations of procedural violations of NEPA.

The IWG also looked at the number of mine-related EAs prepared by the USFS and BLM. For a 10-

year period from 2013–2023, the USFS prepared 129 mining EAs, with an average time to completion

of 16 months. During a similar period, the BLM prepared 121 mining EAs with an average completion

time of 14 months and a median completion time of 9.5 months. Both the BLM and the USFS typically

prepare EAs for mine exploration, expansions, or plan extensions, or for new mines for smaller

projects.

Under both the IWG/EPA and GAO analyses, the environmental review times for mine permits by

BLM and USFS were found to fall close to the average EIS completion time of 4.5 years (from NOI

to ROD) and median EIS completion time of 3.5 years for all projects across Federal government

agencies.

151

Both the GAO and IWG analyses focused on the mine plan review and approval and EIS

processes and did not include timeframes for other Federal or State permits, most of which would

be issued after NEPA is completed to support the BLM or USFS decision.

While much can be improved about the U.S. mine permitting process, it should be noted that the

total “gestation period”—the length of time between the initiation of exploration for a mineral and

the start of commercial production—appears to be roughly 16 years in the U.S., which is fairly

consistent with the worldwide average.

152

The International Energy Agency found that the

international range of the time from completion of a feasibility study to the start of production took

between roughly 4 and 18 years for nickel mines and between roughly 6 and 19 years for lithium

mines.

153

Outside of litigation, the U.S. total process time has not been found to be any longer than

any other nation’s total process time.

154

According to GAO’s analysis and EPA’s data, the time to

complete NEPA and ensure decision-making is informed by environmental impacts is a comparatively

small portion of the total mine gestation period. As mentioned earlier, the NEPA process is just one

part of what is usually a multi-step process, with permits required not just from the land and mineral

managers (BLM and USFS) but also multiple other Federal, State, and local entities.

A large number of industry commenters remarked that mining projects take “7–10 years” to permit

in the U.S. but only “2–3 years” in other jurisdictions, such as Canada or Australia. Although widely

repeated and buttressed by a number of individual examples of mines that took exceptionally long to

151

White House Council on Environmental Quality, “Environmental Impact Statement Timelines (2010-2018),” June

2020. https://ceq.doe.gov/docs/nepa-practice/CEQ_EIS_Timeline_Report_2020-6-12.pdf.

152

James Otto, “Security of Mineral Tenure: Time-limits,” in International and Comparative Mineral Law and Policy, Elizabeth

Bastida et al., eds., 2005, pp. 353-374. https://eop.on.worldcat.org/oclc/57002390.

153

“Global EV Outlook 2022.” International Energy Agency, May 2022. https://www.iea.org/reports/global-ev-outlook-

2022.

154

U.S. Geological Survey, “The Principal Rare Earth Elements Deposits of the United States – A Summary of Domestic

Deposits and a Global Perspective,”2010. http://pubs.usgs.gov/sir/2010/5220/.

permit, no data was provided to support these numbers. The origin of the referenced timeframes

appears to be a 2015 report produced for the NMA by SNL Metals and Mining entitled “Permitting,

Economic Value and Mining in the United States,” which stated:

As a consequence of the country’s inefficient permitting system, it takes on average

seven to 10 years to secure the permits needed to commence operations in the U.S.

To put that into perspective, in Canada and Australia, countries with similarly stringent

environmental regulations, the average permitting period is two years.

155

The SNL Metals and Mining report, however, does not provide the source of its data, and states, “This

report is based on information and data provided to SNL Metals & Mining by third parties…SNL

Metals & Mining has not independently verified such information and has assumed that information

supplied and representations made by respondents are substantially accurate.”

156

Also, the Mining

Association of Canada reports that the planning and approval process for new mines can take 10–15

years in Canada.

157

The 2022 Fraser Institute Annual Survey of Mining Companies also found that

Alaska and Nevada—two states with large percentages of public land—had a higher percentage of

respondents than Canada or Australia reporting permitting times of six months or less, and also had

the smallest percentage of respondents who said permitting time had lengthened over the past 10

years.

158

NGOs commented that the NEPA process can, and often is, completed quickly and efficiently, that

larger, more complex projects take and deserve more time to review, and that the NEPA process

works as designed in identifying potential issues that might otherwise have been overlooked, allowing

for reassessment of options and alternatives. A comment letter from a western law school stated,

“…the NEPA review process is indeed working as designed, identifying potential issues that would

have otherwise escaped consideration and driving a reassessment of options and impacts before an

irretrievable commitment of resources occurs. ….”

159

Further, it is often unclear where to place responsibility for delays that occur during the environmental

review and permitting processes. The most common cause of delay identified by the GAO involved

155

SNL Metals & Mining, “Permitting, Economic Value and Mining in the United States,” June 2015.

http://mineralsmakelife.org/assets/images/content/resources/SNL_Permitting_Delay_Report-Online.pdf

156

Id.

157

Mining Association of Canada, “Project Permitting in Canada and the Mining Industry,” November 16, 2022.

https://mining.ca/resources/reports/project-permitting-in-canada-and-the-mining-industry/.

158

J. Mejía and E. Aliakbari, Fraser Institute Annual Survey of Mining Companies 2022, 2023.

https://www.fraserinstitute.org/studies/annual-survey-of-mining-companies-2022.

159

Wallace Stegner Center for Land, Resources, & the Environment, at University of Utah’s S.J. Quinney College of Law

Response to Request for Information to inform Interagency Working Group on Mining Regulations, Laws, and

Permitting, 2022.

“mine plans of operation [that] were incomplete or vague, which required a request for additional

information before the review process could continue.”

160

These concerns were also noted by the

Department of Commerce in a recent study, which indicated that:

mining permit applications often lack sufficient quality or key information needed for

regulators to make a decision on an application. Insufficient information in the mining

application can significantly delay the permitting process as it may require multiple

application iterations until the application is of sufficient quality to allow the permitting

agencies to make a decision.

161

The second-most-cited challenge reported by the GAO is the lack of qualified staff and resources to

review environmental and permitting documents.

162

This is not unique to mining. Agencies often lack

the resources to review materials, process permit applications, and conduct consultations as quickly

and efficiently as applicants would like. There are technical challenges associated with making

environmental predictions in EISs for mining operations, which can lengthen the time needed to

prepare EISs. Environmental modeling and impact predictions require adequate data and take

expertise and time to conduct and review, particularly in areas with complex geology, wide seasonal

variations, or areas where there are sensitive species or other important resources.

The third most common cause of delay identified by GAO is when changes are made to key portions

of a mine plan after the initial submission and those changes necessitate new or revised analysis.

163

This has resulted in delays for projects such as the Kensington Mine and the Idaho Cobalt Project

Mine, among others. Site complexity, which, as noted in above, can result in an unusually high number

of environmental issues that are difficult to mitigate, ranked fourth, followed by low quality of work

produced by contractors hired to prepare required NEPA documents.

Many of these challenges are largely outside of agency control, although the GAO did not assess the

reasons for some of the challenges. For example, incomplete, vague, or changing mine plans could be

a result of applicant inexperience. Poor application materials could also be a result of a lack of specific

written regulations, guidance, or agency direction regarding what constitutes a complete mine plan or

the amount and type of baseline data needed to effectively analyze the environmental effects of the

proposal. In some situations, NEPA lead and cooperating agencies negotiate baseline data and NEPA

analysis needs, which can take time to resolve. It is clear that better tracking of permitting schedules,

160

Supra., note 5.

161

U.S. Department of Commerce, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals,” June

2019. https://www.commerce.gov/data-and-reports/reports/2019/06/federal-strategy-ensure-secure-and-reliable-

supplies-critical-minerals

162

Supra., note 5.

163

Id.

along with transparency and accountability for schedule changes, is needed so that there is a common

understanding of the causes of delay and an ability to target these areas for improvement.

D. Best Practices

Numerous experts have offered their views on how to coordinate and streamline the environmental

permitting process, including identifying certain best practices. Such practices include the development

of programmatic EISs, conservation plans under the ESA, and programmatic agreements for the

NHPA. This paper does not evaluate or repeat the recommendations and practices addressed

elsewhere that are generally applicable to those statutes. Significant policy instructions and best

practice manuals already exist and only need to be effectively implemented.

164

However, effective

implementation requires that compliance agencies be provided with sufficient financial and human

resources.

While many general permitting best practices are applicable to mining, the IWG notes that mine

permitting has unique characteristics that require specific solutions. As the industry correctly points

out, mineral deposits “are where they are,” which curtails the ability of an applicant to adjust the

location of proposed operations. Fossil fuel development is similar in a certain respect: the resources

are where they are. However, fossil fuels are developed on Federal lands via leasing, which allows the

public the opportunity to engage in the consideration of potential impacts from fossil fuel development

through the review of specific parcels being proposed for leasing, allowing site-specific concerns to be

identified before individual development proposals are put forward. This same opportunity does not

currently exist for most hardrock mineral development, where claims are located at the initiative of

the claimant, and the public may not be aware the location is being considered for development until

the NEPA process on the mining proposal begins. Another distinguishing factor is the scale and long-

term impact of many mining projects, which can be much greater than for most other infrastructure

projects. For example, even under the most stringent standards, there will be cases where backfilling

a mining pit is infeasible or impossible, likely leaving a pit lake as a perpetual feature of the landscape.

As a result, improving mine permitting requires unique solutions, preferably one that have already

been demonstrated to be effective in the U.S.

164

See Federal Permitting Improvement Steering Council, “FY 2022 Recommended Best Practices Report,” Oct. 2022.

https://www.permits.performance.gov/tools/fy-2018-recommended-best-practices-report; U.S. Department of

Transportation, “D2015 Red Book: Synchronizing Environmental Reviews for Transportation and other Infrastructure

Projects,” Sept. 2015. https://www.transportation.gov/sites/dot.gov/files/docs/mission/transportation-

policy/permittingcenter/286606/redbook2015.pdf; White House Council on Environmental Quality, “Improving the

Process for Preparing Efficient and Timely Environmental Reviews Under the National Environmental Policy Act.”

https://ceq.doe.gov/docs/ceq-regulations-and-guidance/Improving_NEPA_Efficiencies_06Mar2012.pdf.

One promising set of procedures has been developed by BLM’s Nevada state and district offices,

which have the heaviest mining workloads of any BLM offices in the nation. The protocol, titled

“Statewide Project Management Process for EISs and EAs,” allows for consistency and coordination

between the project proponent and applicable Federal and State agencies and Tribes, and was

originally developed for mining projects but is applicable to other Federal actions as well. The most

recent version of the protocol was issued as part of policy guidance by the BLM Nevada state office,

165

and establishes an 8-step process for coordinated NEPA analysis:

 Steps 1–3: Ensure that there is effective communication within BLM and with the applicant

for planning purposes and resource allocation.

 Step 4: Baseline kick-off meeting with the proponent and affected Federal, State, local, and

Tribal government representatives. At this meeting a standardized form is used to document

the identified baseline data needed for the NEPA process. As baseline reports are received,

evaluated, and approved, those reports are shared with relevant local and State agencies.

 Steps 5 and 6: Preparation and submission of the plan of operations. BLM strongly encourages

applicants to ensure that all baseline studies are complete before submission.

 Step 7: Following submission of a complete application, BLM determines the level of NEPA

analysis that will be required.

 Step 8: Pre-NEPA kick-off meeting with BLM, the applicant, NEPA contractor, local, State and

Federal agencies, and Tribal government representatives.

BLM Nevada has an MOU with the EPA Region 9 to coordinate the evaluation and development of

EISs for mining operations in Nevada, as well as an MOU with the USFS and State of Nevada to

facilitate coordination and the establishment of reclamation cost estimates. The first MOU establishes

the EPA as a cooperating agency by default for all mining EISs, setting out the minimal points of contact

required for sharing of information and documents between BLM and the EPA, as well as the

timeframe for review of documents by EPA. While this unique MOU between EPA and BLM-Nevada

has significantly enhanced coordination between the BLM and EPA, implementation could still be

improved. EPA reported that they are not consistently invited to baseline kick-off meetings, or

invitations are provided on short notice, and that they are not consistently given the opportunity to

review and provide input on draft baseline data that is shared with the State and local agencies beyond

those documents set out in the MOU. Lack of ability to be engaged early in the review of baseline

165

Bureau of Land Management Nevada State Office, Instruction Memorandum No. NV-2023-003, Change 1, “Updated

Process for Department of the Interior (DOI) and Bureau of Land Management (BLM) Directorate Briefings and

Reviews of National Environmental Policy Act (NEPA) Documents and BLM Nevada Protocol for Streamlined Project

Management for Environmental Impact Statements and Environmental Assessments.” See Attachment 2 at

https://www.blm.gov/policy/nv-im-2023-003-change-1.

documents can result in EPA first identifying issues during its required draft EIS review instead of at

earlier stages in the process.

Discussions with agency personnel and comments from industry groups and individual companies

indicate that these MOUs, coupled with the Nevada statewide project management process, have

significantly improved the permitting process on public lands in Nevada, providing increased certainty

and consistency and allowing EISs to be completed in an expedited manner. Outside of Nevada, BLM

and the USFS often develop project-specific MOUs or cooperating agency plans that establish

cooperating agency roles and coordination during the NEPA process or address cooperative efforts

regarding reclamation cost estimates and other financial assurance details.

There have been other recent attempts to speed the permitting process nationwide without any loss

of environmental protection or opportunity for public input, such as section 41 of the Fixing America’s

Surface Transportation Act,

166

better known as FAST-41. FAST-41 created a new governance

structure, set of procedures, and funding authorities designed to improve the timeliness, predictability,

and transparency of the Federal environmental review and authorization process for “covered”

infrastructure projects.

167

According to the Federal Permitting Improvement Steering Council, which

oversees the FAST-41 process:

FAST-41 coverage entitles project sponsors to a comprehensive, integrated Federal

permitting timetable that is publicly posted on the Permitting Dashboard and which

contains all Federal environmental reviews and authorizations needed to begin

construction of the project. FAST-41 requires that agencies collaboratively establish

and maintain these permitting timetables and consult with the project sponsor on any

proposed permitting timetable changes.

168

Mining projects are eligible for inclusion on the Permitting Dashboard, but only two projects are

currently listed on the dashboard: the Stibnite Gold Project in Idaho, which is not a covered project

under FAST-41, and the South32 Hermosa Critical Minerals project, which is a covered project.

169

Several mining companies endorsed the underlying principles of the FAST-41 process, particularly

interagency coordination and timelines, in comments to the IWG.

166

Pub. L. No. 114-94 (2015).

167

Covered projects are infrastructure projects requiring federal authorization and NEPA review that is likely to require

a total investment of more than $200 million; or which in the opinion of the Federal Permitting Improvement Steering

Committee would likely “benefit from enhanced oversight and coordination. 42 U.S.C. § 4370m(6)(A).

168

Federal Permitting Improvement Steering Council, “The Federal Permitting Improvement Steering Council, Sept.,

2022. https://www.permits.performance.gov/sites/permits.dot.gov/files/2022-09/FPISC_090922.pdf.

169

Federal Permitting Improvement Steering Council, “Permitting Council Announces First-Ever Critical Minerals Mining

Project to Gain FAST-41 Coverage,” May 8, 2023. https://www.permits.performance.gov/fpisc-content/permitting-

council-announces-first-ever-critical-minerals-mining-project-gain-fast-41.

Industry commenters also voiced frustration over the time required for DOI to publish Federal Register

notices related to EISs associated with the analysis of a proposed plan of operations. A project

undergoing review in an EIS begins its formal NEPA process with the publication in the Federal Register

of a NOI to prepare an EIS. A Notice of Availability for every draft EIS must be published by EPA in

the Federal Register, initiating a comment process on the draft environmental analysis. BLM chooses to

publish its own Notices of Availability for the draft and final EISs in addition to the notices published

by EPA. According to industry comments responding to the IWG’s Request for Information, the time

required to approve Federal Register notices for BLM EISs related to mine plan proposals has increased

significantly over the last two decades and now can take up to 6–9 months before each notice is

published.

The Energy Act of 2020 addressed this concern, requiring the Secretaries of Agriculture and the

Interior to ensure that Federal Register notices “associated with the issuance of a critical mineral

exploration or mine permit shall be delegated to the organizational level within the agency responsible

for issuing the critical mineral exploration or mine permit,” and “published in final form in the Federal

170

A review of DOI

and BLM policies and practices noted that DOI has established a Departmental clearance process for

all EISs that includes steps to reduce the time necessary to review Federal Register notices, further

streamlining the review process.

171

Lastly, a review of the process found that work on plans of

operations does not come to a halt during the Federal Register review process.

One best practice in other permitting regimes is the ability to take operator compliance history into

account during permitting, and to “debar” operators that have violated environmental laws or

regulations. One example is the Applicant Violator System under the Surface Mining Control and

Reclamation Act. Some commenters proposed that the hardrock mine permitting process require

that applicants disclose any unresolved violations and that applicants should be barred from receiving

a permit unless corrective action is already being undertaken to address any violations.

Industry opposes the establishment and application of such a system to mining permits, stating that it

is overreach and would bar operators for even minor violations by the company itself or any of its

affiliates. Industry also asserts that comprehensive audits to ensure compliance prior to submitting

plans of operations would cause a substantial increase in costs and delays.

170

30 U.S.C. § 1606(f).

171

U.S. Department of the Interior, “Department Clearance Process for Environmental Impact Statements,” June 2022.

https://doi.gov/sites/doi.gov/files/erm10-11-eis-review-process-june28-2022.pdf.

VII. Public Engagement

A. Current Process

The only practical opportunities for public comment on BLM and USFS mine plans of operation are

during the NEPA process. Review of a notice is not a major federal action requiring compliance with

NEPA because the BLM does not take a discretionary action based on the notice.

172

Both the BLM

and the USFS usually only provide opportunities for public comment at the prescribed NEPA process

points, with no requirement for public engagement prior to or outside of designated portions of the

NEPA process. For EISs, there are several legally required opportunities for public comment, including

scoping periods (initial project development) and draft EIS comment periods. Forest Service

regulations require scoping on all USFS proposed actions, including those analyzed in a categorical

exclusion or EA, and EAs applicable to administrative review have to offer some type of public

comment period, either through scoping or another instance where there is an opportunity to submit

written comments.

173

The BLM does not consistently publish EAs for public comment or review, but

many field offices offer the public a chance to comment on EAs.

Public comment periods provide an opportunity for agencies, the applicant, and the public to discuss

the proposed project, alternatives to the project, potential impacts and mitigation, and the process

for mining approval. Public comment periods can involve a variety of tools for conveying information

about the project: open houses, online meetings, one-on-one meetings, newspaper publications, social

media, Federal Register notices, and agency websites. The form of public comment can be structured

in multiple ways, including open discussion, solicitation of written comments, listening sessions, and

more. The agency’s Responsible Official (BLM) or Authorized Officer (USFS) has the discretion to

implement whichever form(s) are most appropriate for the proposed project based on public interest

and potential environmental impacts. It should also be noted that Tribal consultation, discussed in

more detail in a separate chapter, is typically conducted concurrently with BLM’s and USFS’s mine

review process and can occur before, during, and after public comment periods.

Once the BLM or the USFS receive a proposed plan of operations, the plan is reviewed for

completeness according to agency regulations to ensure that it contains all the information necessary

to conduct an environmental analysis under NEPA.

174

During this completeness review period, the

agencies may reach out to other agencies and stakeholders, but the reviewing agency generally

exercises caution when distributing a draft version of a proposed plan. Public engagement may be

required and conducted by other Federal, State, and local agencies. This engagement may focus on a

172

Sierra Club v. Penfold, 857 F.2d 1307 (9th Cir. 1988).

173

See 36 C.F.R. § 220.4; and 36 C.F.R. § 218.

174

See 43 C.F.R. § 3809; and 36 C.F.R. § 228.

specific aspect or component of a project proposal, such as a draft water discharge permit or draft

air permit issued by a State environmental agency, a CWA Section 404 or Rivers and Harbors Act

Section 10 permit application being reviewed by the USACE, or others.

These public comment periods and process are not consistent across agencies, however. Some State

permit application review procedures do not require public comment periods, such as the issuance

of a tailings dam approval or the establishment of financial assurance for reclamation. Public

engagement and comment periods by other agencies may occur before, during, or after the BLM and

USFS plan of operations review and NEPA process. In addition, public engagement focused on

individual permits is less likely to foster discussion or resolution of broader issues, as the permitting

agency will tend to focus predominantly on the issues and concerns under its jurisdiction. When other

Federal and State agencies are cooperating agencies in the BLM and USFS NEPA processes, the land

management agency may have a general awareness of other agencies’ engagement and comment

periods, and coordination frequently occurs to avoid overlapping comment periods and optimize

engagement during the NEPA process.

Following receipt of a complete plan of operations, the BLM lists the EA or EIS on BLM’s National

NEPA Register to inform the public (https://eplanning.blm.gov/eplanning-ui/home). The BLM’s

ePlanning site has a searchable map function and has been described as more user-friendly than other

publicly-available agency databases. The USFS posts project-related NEPA information on timelines

on its SOPA site (https://www.fs.usda.gov/sopa/). This website contains a simplified searchable map

function and is updated quarterly to ensure the public has current project-related NEPA information

and timelines. As with the BLM process, the public is only informed and given an opportunity to

comment after a complete plan of operation is received and the NEPA process is initiated.

Public engagement is not required but can occur during the operational stage of mining, depending

on new information or changed conditions. Typically, public engagement during operations is selective

based on identified stakeholders and entities with relevant technical expertise. Some examples of

public engagement during the administration of the plan include the sharing and review of monitoring

data or other information, assistance with potential adaptive management, and potential coordination

of reclamation actions.

Public comment is not the equivalent of public engagement, however, and some commenters

suggested both agencies can do more to inform and include the public about mining operations on

Federal land before, during, and after the exploration and mine plan review process. A number of

commenters recommended that the BLM and the USFS provide more information on their websites,

including exploration and mine plan of operations themselves as well as environmental monitoring

and operator compliance data. The Petition for Rulemaking recommended that all documents

submitted by operators be done so in electronic format and posted on a website.

175

Much of the work that occurs by companies before the submission of an exploration plan or

proposed mine plan of operations is not readily apparent to potentially affected communities. The

amount of effort that has been expended before communities have an opportunity to engage may

leave groups and individuals with the sense that they have little meaningful voice in decisions impacting

them. One NGO representative described the mine permitting process as a “fait accompli.” This

perception can undermine trust, engender confrontation, and complicate environmental analyses. A

perception that the public and outside parties cannot influence mineral development decisions

through environmental analyses and the permitting process may force those parties to turn to

litigation.

Public commenters noted the lack of community education about mining and engagement with local

communities, especially Tribal Nations and communities with environmental justice concerns. They

recommended that the BLM and the USFS improve outreach to communities potentially impacted by

mining proposals by using multiple mechanisms to inform the public and ensure meaningful public

participation, while educating the public on the objective benefits and harms from mining operations.

Numerous Tribes and NGOs requested that information on mines continue to be shared following

the completion of the NEPA process, such as operational changes, final mine and reclamation plans,

financial assurance levels, the mining operation’s compliance performance, and the location and

stability of tailings dams upstream from mining communities.

B. Best Practices

While many of these best practices use the term “stakeholders,” and the IWG uses that term

throughout this report, many communities expressed their belief that limited definitions of stakeholder

are used to exclude them from participation. The IWG believes that any best practice regarding

“stakeholders” should be read to include (a) communities with environmental justice concerns; (b)

Justice40 and other disadvantaged communities; (c) area residents; and (d) those who rely on or use

the potentially impacted resources, regardless of residence. As mentioned in Section VIII, Tribes are

sovereign governments and not stakeholders, although communities of Native Americans, whether

living on or off Tribal land, will often fall into one or more of these categories of stakeholders.

175

Supra., note 14.

Mining industry organizations and groups such as IRMA consider community outreach and stakeholder

engagement to be central and essential parts of modern mining practices. For example, the NMA

commented:

The mining industry supports extensive engagement of communities throughout the

mineral development sequence – from pre-feasibility through reclamation. We

recognize that relationships built upon trust, transparency and mutual benefits are

fundamental for mining companies to secure social license and access to land during

exploration and attain regulatory approvals throughout the mining life cycle.

Furthermore, the NMA recognizes the importance of respecting the rights, cultures,

customs and values of people and communities, affected by companies’ activities, and

of continually engaging and maintaining an open dialogue with key communities.

176

ICMM Mining Principle #10, “Stakeholder Engagement,” states that companies should “[p]roactively

engage key stakeholders on sustainable development challenges and opportunities in an open and

transparent manner” and recommends that companies “report annually on economic, social and

environmental performance[.]”

177

Early engagement is also recognized as providing benefits beyond communities or stakeholders.

Industry has found early engagement can improve projects, reduce impacts, and identify additional

ways to benefit local communities. This, in turn, can reduce the risk of litigation and associated delays.

As IRMA states in their IRMA-Ready Draft Standard:

There is widespread acknowledgement from extractive industries that efforts spent

on building respectful relationships, responding to community and indigenous peoples’

concerns, and minimizing project-related impacts can be beneficial to both companies

and affected communities.

178

The Australian Government, in their Guide to Leading Practice Sustainable Development in Mining,

explains, “The conduct of an operator in the pre-development (exploration/feasibility) stage is critical

176

NMA Response to Request for Information to inform Interagency Working Group on Mining Regulations, Laws, and

Permitting, 2022.

177

ICMM, “Mining Principles: Performance Expectations,” June 2022. https://www.icmm.com/en-gb/our-principles/mining-

principles/mining-principles.

178

Initiative for Responsible Mining Assurance, “Draft IRMA Standard for Responsible Mineral Exploration and

Development,” Dec. 2021. https://responsiblemining.net/wp-content/uploads/2021/12/IRMA-Ready-Draft-1.0-

December2021-All-Stages.pdf.

to maximising future shareholder value. If the operator cannot establish and maintain the trust of the

community and government, the potential value of a resource is unlikely to be realised.”

179

Industry also acknowledges the importance of engaging as early as possible and that proactive and

meaningful communication must occur well before such engagement is required under current U.S.

permitting practices. In its comments, the company Anglo Gold Ashanti wrote, “Engagement must

begin at the earliest possible stage; starting at a reconnaissance stage, through to exploration and

mining and finishing with the closure of the project.”

180

And Nevada Gold Mines, LLC / Barrick Gold

Corp. in their combined comments wrote, “In a greenfield exploration program, perhaps the best

start for a dialogue is when a notice is filed, or at least at the exploration plan of operations stage.”

181

Many mining companies do conduct community outreach and stakeholder engagement early in the

mine development process, often long before a mine plan is submitted. However, early engagement

is not required, nor is it common among smaller exploration companies who often develop prospects

with the intent of selling them to larger mining companies. The breadth of comments from NGOs

and Tribal governments also indicates that engagement may not be occurring at times or in ways that

stakeholders believe offer meaningful opportunities to influence exploration or mining decisions.

These entities frequently want to hear from government regulators as well as from mining companies.

While the mining industry on the whole supports early engagement, several industry commenters

opposed making early engagement and outreach mandatory. The American Exploration and Mining

Association commented:

there are several reasons why mandating early community involvement may not be

that helpful to one or more stakeholders… It also may not be an appropriate

expenditure of time and resources for a short-term or speculative exploration

program that could conclude that there is not good mineral potential. It also is not a

practice that is appropriate to mandate (by law or regulation), even assuming that the

federal government had the authority to do so (which it does not).

182

There are numerous guides and handbooks available for companies that provide best practices for

179

Australian Government, Department of Industry, Science and Resources, “A Guide to Leading Practice Sustainable

Development in Mining,” 2011. https://www.industry.gov.au/sites/default/files/2019-04/lpsdp-a-guide-to-leading-practice-

sustainable-development-in-mining-handbook-english.pdf.

180

Anglo Gold Ashanti Response to Request for Information to inform Interagency Working Group on Mining

Regulations, Laws, and Permitting, 2022.

181

Nevada Gold Mines, LLC and Barrick Gold Corp Response to Request for Information Interagency Working Group

on Mining Regulations, Laws, and Permitting, 2022.

182

Supra., note 109.

early community engagement, including ones from the International Finance Corporation,

183

OECD,

184

ICMM,

185

the Prospectors & Developers Association of Canada (PDAC),

186

and IRMA.

187

As an example of early public engagement in a different jurisdiction, Canada initiates public

engagement early in the impact assessment process. Canada holds a public comment period on the

initial mine project description before determining whether an impact statement is required. In

addition, Canada requires the development of a public participation plan for the impact assessment

process, which is also subject to public comment before the impact assessment is conducted. The

public comment period on the initial mine plan and public participation plan is managed by the Impact

Assessment Agency of Canada or by a Canadian province if the province also requires an

environmental impact statement. Public comment on the public participation plan and initial project

description helps to introduce the public to the project and impact assessment process and obtain

early input on the mine plan and on how the public would like to be engaged, all before the public

impact statement scoping comment period.

Early engagement should be complemented by continued engagement and transparency throughout

the permitting, operational, closure, and post-closure phases of a mining project. The IRMA Standard

requires companies to “encourage and facilitate stakeholder participation” in the implementation of

environmental monitoring,

188

and to make all monitoring data and methodologies publicly available.

189

Some operating U.S. mines have even engaged citizens and community groups in the collection and

analysis of environmental data, such as the Sibanye-Stillwater Mine in Montana, which signed a Good

183

World Bank Group, “A Strategic Approach to Early Stakeholder Engagement: A Good Practice Handbook for Junior

Companies in the Extractive Industries,” 2014. http://documents.worldbank.org/curated/en/784051524469298172/A-

strategic-approach-to-early-stakeholder-engagement-a-good-practice-handbook-for-junior-companies-in-the-extractive-

industries.

184

OECD, “OECD Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector,” Feb.

2017. https://www.oecd.org/development/oecd-due-diligence-guidance-for-meaningful-stakeholder-engagement-in-the-

extractive-sector-9789264252462-en.htm.

185

See International Council on Mining & Metals, “Community Development Toolkit,” July 2012.

https://www.icmm.com/en-gb/guidance/social-performance/2012/community-development-toolkit; International Council

on Mining & Metals, "Indigenous Peoples and Mining: Good Practice Guide,” Oct. 2015. https://www.icmm.com/en-

gb/guidance/social-performance/2015/indigenous-peoples-mining.

186

Prospectors & Developers Association of Canada, “Principles and Guidance Notes’” 2014.

https://www.pdac.ca/docs/default-source/priorities/responsible-exploration/e3-plus---principles/e3-plus-principles-amp-

guidance-notes---update-2014.pdf?sfvrsn=8cabd698_2.

187

Initiative for Responsible Mining Assurance, “IRMA Standard for Responsible Mining IRMA-STD-001,” June 2018.

https://responsiblemining.net › wp-content › uploads › 2018/07 › IRMA_STANDARD_v.1.0_FINAL_2018-1.pdf.

188

Id. at 45.

189

Id. at 46.

Neighbor Agreement with three local conservation NGOs in 2000,

190

and the Eagle Mine in Michigan,

which funds a Community Environmental Monitoring Program run by community organizations.

191

Some mining companies have policies to establish formal and informal advisory groups to regularly

meet with community or Tribal members to address concerns about proposed or operating mines.

British Columbia currently assumes that mining proponents will establish Community Advisory

Committees, while Quebec requires monitoring committees to be established for all mines.

192

Eureka

County, Nevada, commented that it uses community NEPA committees during the permitting process

as a way to receive advice in its role as a cooperating agency.

193

British Columbia is an example of a jurisdiction increasing transparency around mining operations and

has a website at https://mines.nrs.gov.bc.ca/ that includes a map showing every mine in the province,

including mines undergoing permitting, active mines, and closed mines. The website provides

information for each mine, including a summary of the mine, mine plans and authorizations,

compliance oversight (including inspection reports for environment, health and safety, and

geotechnical stability), and agency points of contact.

VIII. Tribal Consultation and Engagement

The Federal Government has a unique relationship with Federally recognized Tribes derived from the

Constitution of the United States, treaties, Supreme Court doctrine, and Federal statutes. This

relationship is deeply rooted in American history, dating back to the earliest contact in which colonial

governments engaged Tribes as sovereign nations. This relationship has been defined and clarified over

time in legislation, Executive Orders, Presidential directives, and by the Supreme Court. The

relationship between the United States and federally recognized Tribes was reaffirmed in the

President’s Memorandum on “Government to Government Relations with Native American Tribal

Governments” (April 29, 1994). The memorandum directs Federal agencies to operate “within a

government-to-government relationship with federally recognized Tribal governments.” It also directs

agencies to consult with Tribes prior to making decisions that affect Tribal governments and to ensure

that all components of the agency are aware of the requirements of the memorandum. In addition,

190

Stillwater Mining Company-Northern Plains Resource Council, Cottonwood Resource Council, & Stillwater

Protective Association, Good Neighbor Agreement, May 8, 2000. https://northernplains.org/wp-

content/uploads/2022/07/FinalCopy_GNA_2016_12_9.pdf.

191

Eagle Mine LLC & Superior Watershed Partnership, “Community Environmental Monitoring Program Agreement,”

Dec. 2019. https://swpcemp.org/wp-content/uploads/2022/09/Agreement-2020-2025-Signed.pdf.

192

Olthuis Kleer Townshend LLP, “A Comparative Review of Canadian Mining Law and Responsible Mining Standards,”

January 2020. https://www.oktlaw.com/raising-the-stakes/.

193

Eureka County Response to Request for Information to inform Interagency Working Group on Mining Regulations,

Laws, and Permitting, 2022.

Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (Nov. 6,

2000), directs Federal agencies to consult with Tribal governments regarding issues that “significantly

or uniquely affect their communities.” On November 30, 2022, President Biden signed a Presidential

Memorandum titled “Uniform Standards for Tribal Consultation,”

194

which is described in more detail in

Section VIII.B. In addition, the U.S. Government has also committed to protecting Tribal Treaty rights,

signing an interagency MOU in 2016 and issuing guidance to agencies in 2022 to implement this work.

Tribes have been the inhabitants, possessors, and stewards of the land since time immemorial.

Indigenous knowledge and connections to the land have been passed down for generations, and today,

Tribes have deeply embedded cultural and spiritual connections to the natural environment with ties

to places and cultural landscapes. The connections to place may not always be readily apparent. Today,

many American Indians occupy reservation lands to which their ancestors were forcibly relocated a

century or more ago and that are far from the Tribe’s ancestral homeland. There are States in which

there are currently no Indian reservations, yet within those States there are ancestral lands for which

many Tribes maintain cultural relationships or ascribe religious and cultural importance to locations,

places, and sites.

195

Tribes may also hold cultural affiliations to lands in neighboring states.

Mining may affect or adversely impact burial sites, human remains, and funerary objects of certain

groups of people, including but not limited to Tribes, other Indigenous Peoples, Native Hawaiians, and

enslaved Africans and their descendants, have a higher probability of being unmarked and

undocumented and thus more likely to be affected by development projects, including mining.

196

While

American Indian graves, remains, and funerary objects are protected by Federal law, careful and

proactive planning promotes avoidance over mitigation of unintended impacts.

A. Treaty Rights

Tribal governments are sovereign governments. The United States Constitution recognizes treaties

between the United States and Tribal Nations as “the supreme Law of the Land”—and that treaties

are of equal importance to other Federal laws and obligations.

197

Federal agencies give effect to treaty

language and ensure that Federal agency actions do not conflict with Tribal treaty and reserved rights.

From 1778 to 1871, the United States’ relations with Tribal Nations were defined and conducted

194

“Memorandum on Uniform Standards for Tribal Consultation,” Nov. 2022. https://www.whitehouse.gov/briefing-

room/presidential-actions/2022/11/30/memorandum-on-uniform-standards-for-tribal-consultation/.

195

Supra., note 42

196

Advisory Council on Historic Preservation, “Advisory Council on Historic Preservation Policy Statement on Burial

Sites, Human Remains, and Funerary Objects,” 2023. https://www.achp.gov/sites/default/files/policies/2023-

03/PolicyStatementonBurialSitesHumanRemainsandFuneraryObjects20230301_1.pdf.

197

U.S. Const. art. VI, cl. 2.

largely through treaty-making.

198

In these treaties, Tribes typically ceded rights, title, and interest in

their aboriginal lands to the United States while retaining—or reserving—certain rights. The United

States Supreme Court, in interpreting the scope of reserved fishing rights, affirmed the principle that

Tribes’ reserved rights are “not a grant of rights to the Indians, but a grant of rights from them – a

reservation of those not granted.”

199

As the Forest County Potawatomi Community commented:

The [Forest County Potawatomi Community] and Tribal nations generally, are place

based and cannot relocate. The very nature of treaty rights, and a line of cases

reinforcing treaty rights, makes clear that those rights are continuous, and the federal

government is responsible for ensuring the sustainability of those rights, including

hunting, fishing, clean water and environmental availability.

200

Tribal Nations retain significant legal rights to determine whether, and if so, how, to develop minerals

on reservation and Tribal fee land.

201

Those same Tribes, however, have far fewer legal rights or tools

with respect to ceded lands that are located outside of their reservation borders. Some Tribes, like

those of the Pacific Northwest and Great Lakes regions, retain an explicit treaty-based right to hunt

and fish on lands beyond reservation boundaries,

202

which, under certain circumstances, could impact

the permitting of mining facilities that have the potential to impact access to treaty-reserved resources

or the treaty-reserved resources themselves.

When a Federal agency is engaging in regulatory or other decision-making processes, the agency

engages, through consultation, with Tribal governments to determine whether Tribal treaty or

reserved rights may be impacted by the proposed Federal action.

203

In consultation, agencies are

expected to carefully consider Tribal views on the nature and scope of the treaty and reserved rights,

consider Tribal views on the likelihood and level of impact on those rights by the proposed agency

action, and determine how to best incorporate Tribal rights consistent with applicable law. Further,

with the Memorandum of Understanding Regarding Interagency Coordination and Collaboration for

the Protection of Tribal Treaty and Reserved Rights, Federal agencies affirmed their commitment to

198

After 1871, other forms of Federal government decision-making continued to be utilized by the various branches of

government to recognize Tribal rights, including, but not limited to: executive orders, military decrees, federal legislation,

and judicial decisions.

199

United States v. Winans, 198 U.S. 371, 381 (1905); see also, Winters v. United States, 207 U.S. 564, 577 (1908) (holding

that Tribes retained the right to access and use surface water even if not expressly reserved in the applicable treaty

between the Tribe and the United States).

200

Forest County Potawatomi Community Response to Request for Information to inform Interagency Working Group

on Mining Regulations, Laws, and Permitting. 2022.

201

See, e.g., 25 U.S.C. § 396a; United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938).

202

Cohen’s Handbook of Federal Indian Law § 18.04, Nell Jessup Newton ed. (2017).

203

Advisory Council on Historic Preservation, “Tribal Treaty Rights in the Section 106 Process,” 2018.

https://www.achp.gov/sites/default/files/whitepapers/2018-09/TribalTreatyRightsintheSection106Process20180920.pdf.

protect Tribal treaty rights, reserved rights, and similar Tribal rights to natural and cultural resources.

204

However, comments from a number of Tribes and Tribal organizations expressed the view that treaty

rights are not sufficiently considered in Federal decisions for mining projects on Federal lands. The

Nez Perce Tribal Executive Committee wrote:

Federal agencies should not approve mining on lands to which tribal reserved rights

attach without the free, prior, and informed consent of the affected tribe or

tribes…Plans must be denied that violate tribal treaty-reserved rights, interfere with

the subsistence practices such rights facilitate, or unduly interfere with other

environmental, recreational, or tribal traditional cultural properties or tribal sacred

sites.

205

The Oglala Sioux Tribe commented:

The United States should honor its treaty and trust obligations to the Oglala Sioux

Tribe and all Indian tribes. The Secretaries of the Departments of the Interior and

Agriculture signed the Biden Administration’s November 2021 Memorandum of

Understanding Regarding Interagency Coordination and Collaboration for the

Protection of Tribal Treaty and Reserved Rights. That MOU affirmed the

Departments’ commitment to protect tribal treaty rights, reserved rights and similar

tribal rights to natural and cultural resources and to demonstrate that commitment

through early consideration of treaty and reserved rights in agency decision-making.

The Departments must honor these commitments.

206

B. Government-to-Government Consultation

Tribes’ ability to influence mining decisions and the mining impacts those decisions have on Tribal

communities depends largely upon where a proposed development would occur. While Tribes

control activities on their own lands, Tribes seeking to influence mining or other activities beyond their

reservation and trust land boundaries have fewer tools. Federal laws impose procedural protections

for culturally significant land and the resources and sacred sites those lands contain, but few of these

laws are well suited to addressing the challenges posed by mining operations. In addition to Executive

Orders and Departmental policies requiring consultation with Tribes, the NHPA requires Federal

204

Memorandum of Understanding Regarding Interagency Coordination and Collaboration for the Protection of Tribal

Treaty Rights and Reserved Rights, 2021. https://www.doi.gov/sites/doi.gov/files/interagency-mou-protecting-tribal-treaty-

and-reserved-rights-11-15-2021.pdf.

205

Nez Perce Response to Request for Information to Inform the Interagency Working Group on Mining Regulations,

Laws and Permitting, 2022.

206

Oglala Sioux Tribe Response to Request for Information to Inform the Interagency Working Group on Mining

Regulations, Laws and Permitting, 2022.

agencies to “take into account the effects of their actions on historic properties,”

207

including

properties of religious and cultural significance to Tribes.

208

However, the NHPA does not displace

Federal agencies’ statutory missions or guarantee that Tribal comments will be reflected in agency

decisions, and the NHPA covers a subset of issues that are of concern to Tribes. Tribal Nations and

their citizens, like all other Americans, have the right to engage during the environmental review

conducted pursuant to NEPA

209

and during other public comment periods on permits, and as a NEPA

cooperating agency, but Federal agencies generally retain full discretion over the contents of their

decisions.

The Executive Branch has emphasized the requirement to establish regular and meaningful

government-to-government consultation and collaboration with Tribes and Alaska Native Villages in

the development of Federal policies that have Tribal implications in order to strengthen the Federal

government-to-government relationships with Tribal Nations.

210

BLM and USFS conduct Tribal

consultation once a mine plan of operation is received and complete such consultation by the time

the NEPA process has concluded.

On January 26, 2021, as one of his first executive actions, President Biden issued a Memorandum for

the Heads of Executive Departments and Agencies on Tribal Consultation and Strengthening Nation-

to-Nation Relationships. In it, President Biden made respect for Tribal sovereignty and self-governance,

a commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations, and regular,

meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy. Regular,

meaningful, and robust consultation is an expression of respect for Tribal sovereignty and self-

governance and is both necessitated by and integral to fulfilling Federal trust and treaty responsibilities

to Tribal Nations.

211

On November 30, 2022, President Biden signed a Presidential Memorandum titled “Uniform Standards

for Tribal Consultation,”

212

which builds on existing executive orders to provide specific minimum

standards for Federal agencies regarding consultation procedures and training for agency staff on

Tribal consultation, Tribal sovereignty, and the Nation-to-Nation relationship with Tribal Nations.

Around the same time, the DOI and other agencies released updated Tribal consultation policies that

207

54 U.S.C. § 306108; 36 C.F.R. § 800.2.

208

54 U.S.C. § 302706.

209

42 U.S.C. § 4332; Executive Order 13352, 69 Fed. Reg. 52989 (Aug. 26, 2004).

210

Executive Order 13175, 65 Fed. Reg. 67249 (Nov. 6, 2000).

211

Federal agencies may also find it useful to develop their own statements on their trust responsibility to Tribes, for

example see: Advisory Council on Historic Preservation, “The Advisory Council on Historic Preservation’s Statement on

Its Trust Responsibility,” July 21, 2004. https://www.achp.gov/sites/default/files/2018-

06/TheACHPsStatementOnItsTrustResponsibility.pdf

212

Supra., note 194

encourage consideration of Tribes that have been displaced from their original homelands, provide

additional direction on the appropriate agency staff to be involved in consultation, and provide

additional details on how consultation meetings should be conducted. The White House Office of

Science and Technology Policy (OSTP) and CEQ also released on November 30, 2022, a memo titled

“Guidance for Federal Departments and Agencies on Indigenous Knowledge,” which provides

information and best practices for including Indigenous Knowledge (IK) into federal research, policies,

management, and decision-making.

213

The ACHP has also developed an information paper on how

Indigenous Knowledge and expertise can support federal agencies in meeting their obligations under

Section 106 of the NHPA to consult with Tribal Nations to identify and avoid, minimize, or mitigate

the adverse effects of federal undertakings, including mining permits, on historic properties.

214

Numerous Tribal commenters and some Industry commenters suggested codifying Federal

government-to-government consultation obligations in more detail in law or regulation. As the Reno-

Sparks Indian Colony commented:

[F]ederal agencies' consultation obligations need to be more specifically defined in the

regulations. The regulations need to be revised to unequivocally require federal

agencies to engage in a deliberate and intentional step-by-step consultation

process...regulations should be revised to require federal agencies to adhere to the

best practices described in agency handbooks, manuals, and policy documents.

215

In discussing two pieces of proposed legislation that would establish Tribal consultation

requirements,

216

the American Exploration and Mining Association commented:

[S]ome of their respective provisions, if coordinated well with other required

evaluation processes (such as NEPA or NHPA Section 106), could provide some

certainty for all concerned by establishing objective minimum standards, and to provide

guidance and a floor for consultation.

217

Another industry comment letter suggested:

213

White House Office of Science and Technology Policy and Council on Environmental Quality, “Guidance for Federal

Departments or Agencies on Indigenous Knowledge,” Nov. 30, 2022. https://www.whitehouse.gov/wp-

content/uploads/2022/12/OSTP-CEQ-IK-Guidance.pdf.

214

Advisory Council on Historic Preservation, “Traditional Knowledge and the Section 106 Process: Information for

Federal Agencies and Other Participants,” 2021. https://www.achp.gov/sites/default/files/2021-

05/TraditionalKnowledgePaper5-3-21.pdf.

215

Reno-Sparks Indian Colony Response to Request for Information to Inform Interagency Working Group on Mining

Regulations, Laws, and Permitting, 2022.

216

H.R. 7580 (117

Cong. 2022) and H.R. 3587 (117

Cong. 2022).

217

Supra., note 109

Having a predictable, minimum process would help industry, federal agencies and

Tribes understand exactly what is required. Providing an option for federal agencies

and Tribes to further define their relationship through an MOU—as is sometimes

used in NHPA Section 106 consultation—would provide the flexibility that could

benefit specific Tribes' ability to meaningfully participate based on their specific needs

and preferences with regard to particular lands or particular projects.

218

C. Challenges

Some of the mining-related obstacles facing Tribes arise from the Mining Law’s principle of self-

initiation, which means that citizens who locate claims on Federal lands under the Mining Law may do

so without undertaking community engagement or environmental planning. As discussed above, some

mineral exploration and mining on Federal lands does not require BLM or USFS approval, thereby

avoiding environmental review or public notification requirements under NEPA or Tribal consultation

requirements under NHPA or E.O. 13175. It is often the case that only after years of effort and

significant investment will a company submit a plan of operations to the appropriate land manager—

either the BLM or USFS—at which point Tribes and stakeholders are made aware and resource

conflicts are flagged. By that point, Tribes are at a significant disadvantage if they wish to see changes

to the plan of operations. As two practitioners note, “NEPA and NHPA are procedural statutes that

do not ensure protection of sites of importance to tribes, which often breeds distrust, confusion, and

misunderstandings.”

219

The NHPA directs the BLM and USFS to consider the impacts of undertakings they carry out, license,

or assist on historic properties, including those with religious and cultural significance to Tribes and

Native Hawaiian Organization, but the NHPA does not prescribe an outcome. Section 106 of the

NHPA’s implementing regulations states that agency officials “shall ensure that the Section 106 process

is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered

during the planning process for the undertaking. Collaboration during the pre-application information

gathering stage, or prior to initiating the Section 106 process can be essential to an agency’s ability to

consider alternatives for the proposed project’s location in order to avoid or minimize impacts to

historic properties in the Section 106 process.

220

218

NGM & Barrick Gold Corp Response to Request for Information to inform Interagency Working Group on Mining

Regulations, Laws, and Permitting, 2022.

219

Dennis J. Donohue & Daniel P. Ettinger, Navigating Tribal Opposition to Permits for Great Lakes Mining Projects, 35-SUM

Nat. Resources & Envt. 41, 43 (2020).

220

Advisory Council on Historic Preservation, “Early Coordination with Indian Tribes during Pre-Application Processes:

A Handbook,” 2019. https://www.achp.gov/sites/default/files/documents/2019-

10/EarlyCoordinationHandbook_102819_highRes.pdf.

While laws like NEPA and NHPA direct the BLM and USFS to identify alternatives to a proposed

action, seek ways to avoid potential impacts, minimize and otherwise mitigate unavoidable impacts,

the ability to do so is often constrained by the actions that have previously occurred. Federal agencies

pursue Tribal consultation and government-to-government relations at that point, but there are at

least three significant challenges.

First, significant resources would typically have been committed by the mining company, and there

may have been pre-submittal discussions between the mining company and land management agencies

before Tribal engagement occurs. Approaching Tribal governments with carefully developed and

highly detailed exploration or mining plans before significant attention has been paid to deeply held

Tribal interests and concerns can make Tribes feel like their engagement is an afterthought and unlikely

to offer the possibility of any significant changes in the plan. In short, for Tribal engagement efforts to

be meaningful, those efforts must occur much earlier, ideally before mining interests expend significant

resources on exploration, and then continue through the entire exploration and mine development

process.

Second, just as history dictates which locations hold sacred meaning and practical considerations

preclude the movement of sacred sites, geology dictates where a mine may be developed. The type

of mine, mine method, and related siting, layout, and infrastructure are all directly dependent upon

the type, location, and grade of the mineral deposit. Further, Federal agencies have limited decision-

making space within which to act. Under the Mining Law’s self-initiation principle, the BLM and USFS

must act on the proposed plan of operations submitted by the operator. The land managers cannot

move mining projects to other locations, and while projects have to conform to existing laws, they

may have limited options for minimizing and otherwise mitigating impacts. Land management agencies

are often left with a near-polar decision to either approve or deny a plan, often under intense political

pressure.

Third, Tribal governments may lack the capacity or technical expertise to fully evaluate highly technical

mine plans and environmental studies. Even where Tribal governments have sufficient expertise, they

may need additional time to review and consider the body of information presented to them,

especially if they are reliant on outside consultants for technical assistance. A Tribe’s need for time

may be in direct conflict with significant pressure to move expediently through the environmental

review and permitting process that is being brought to bear on both the proponent and the agency.

A conscientious mining company may seek to identify potentially conflicting land uses and sensitive

resources at the outset of their exploration activities. Such companies will likely consider the cost of

development and permitting complexity, incorporating those considerations into their decision-making

framework. The conscientious mining company may also want to identify and avoid sites and

landscapes that are sacred to Indian Tribes, but that information may not be readily available. Tribes

may be reluctant to share sensitive cultural information or IK. Applicants, including mining companies,

should seek consent from Tribes to access sensitive information and, upon receiving consent,

determine with the Tribes how to safeguard sensitive information. Applicants should develop data

sharing agreements with Tribes to guide accessing and including sensitive information and procedures

to maintain confidentiality.

221

And while cultural sensitivity and proactive planning likely make business sense, neither are required

by law. Despite good intentions, mining companies that do seek to engage with Indian Tribes may be

reluctant to share sensitive business information about potential future projects, and there may be a

high level of uncertainty regarding whether an exploration project will be able to be developed into

a mining project. There simply may not be enough shared information to foster meaningful dialogue,

and the discussions that do occur too often happen only after positions have finalized. In addition,

without prior engagement, Tribes may not have confidence in mining companies’ claims or data and

may desire to have early engagement with Federal agencies in addition to mining companies. Mining

companies and organizations themselves have recognized that earlier Tribal engagement is warranted.

D. Best Practices

Early engagement with and consideration of impacts on Indigenous Peoples is widely accepted to be

an industry best practice, is encouraged by a wide range of international organizations (such as the

OECD

222

and IFC

223,224

), industry organizations (such as ICMM

225

and PDAC

226

), foreign governments

(such as Australia and Canada), and voluntary standards setting organizations, such as IRMA, and is

consistent with standards from the International Organization for Standardization and the Responsible

Minerals Initiative.

Numerous mining industry participants also expressed their views to the IWG that early engagement

is essential. The NMA commented:

221

Id.

222

Supra., note184

223

Supra., note 183

224

International Finance Corp., “IFC Performance Standards on Environmental and Social Sustainability,” 2012.

https://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/sustainability-at-

ifc/publications/publications_handbook_pps.

225

ICMM, “Indigenous Peoples and Mining Position Statement,” 2013. https://www.icmm.com/en-gb/our-

principles/position-statements/indigenous-peoples.

226

Prospectors & Developers Ass’n. of Canada, “Excellence in Social Responsibility e-toolkit Version-01,”

2009.https://www.pdac.ca/priorities/responsible-exploration/e3-plus/toolkits/social-responsibility.

The mining industry has found that the most effective engagement processes start

with a concerted effort by mining companies to establish proactive and meaningful

communication with communities and Tribal neighbors well before any exploration

activities begin.

227

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the U.N.

General Assembly in September 2007, established a comprehensive framework of minimum standards

for the survival, dignity, and well-being of Indigenous Peoples globally. Among other things, the

UNDRIP states that countries should obtain the free, prior, and informed consent (FPIC) from

Indigenous peoples before approving “any project affecting their lands or territories and other

resources, particularly in connection with the development, utilization or exploitation of mineral, water

or other resources.”

228

In a 2015 summary of extractive industry positions on FPIC, Oxfam defined FPIC as “the principle

that indigenous peoples and local communities must be adequately informed about projects that affect

their lands in a timely manner, free of coercion and manipulation, and should be given the opportunity

to approve or reject a project prior to the commencement of all activities.”

229

In the announcement

of support for the principle of UNDRIP in January 2011, the U.S. stated that it “recognizes the

significance of the Declaration’s provisions on free, prior and informed consent, which the United

States understands to call for a process of meaningful consultation with tribal leaders, but not

necessarily the agreement of those leaders, before the actions addressed in those consultations are

taken.”

230

Tribal Nations and many NGOs strongly support implementation of FPIC for U.S. mining projects

and mineral sourcing, with 175 Tribal Nations, Tribal organizations, and conservation, environmental,

religious, and human rights groups in two separate comment letters urging the United States to make

the principle a requirement. One letter stated, “[s]ecuring the free, prior and informed consent of

Indigenous Peoples early in the process should be a requirement for project or agency decisions that

would impact their resources, and permitting agencies must adopt provisions reflecting this principle,”

and added that “FPIC also should apply to any re-mining of waste materials or other projects or

227

Supra., note 176

228

United Nations, “United Nations Declaration on the Rights of Indigenous Peoples,” Sept, 2007.

https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf.

229

Oxfam, “Oxfam Community Consent Index 2015,” July 2015. https://www.oxfam.org/en/research/community-

consent-index-2015.

230

U.S Department of State, “Announcement of U.S. Support for the United Nations Declaration on the Rights of

Indigenous Peoples,” Jan.,2011. https://2009-2017.state.gov/s/srgia/154553.htm.

Federal policies meant to support a circular economy.”

231

The second letter encouraged a broader

application of FPIC, saying that it should apply “for any government actions in the mineral supply chain

that may impact their community, lands, or cultural resources.”

232

Other input stated that FPIC should

be a requirement of the U.S. government for any mineral sourcing or support for mining projects

under the Defense Production Act, BIL, or other programs. FPIC is also the subject of an entire

chapter of the IRMA Mining Standard.

A number of international mining companies have announced their commitment to FPIC. Oxfam

reported 14 companies with publicly stated FPIC commitments as of 2015, and the ICMM’s Mining

Principle 3.7 states, “Work to obtain the free, prior and informed consent of Indigenous Peoples

where significant adverse impacts are likely to occur, as a result of relocation, disturbance of lands and

territories or of critical cultural heritage, and capture the outcomes of engagement and consent

processes in agreements.” In individual comment letters, the mining industry pointed out that it views

FPIC as a “process and an outcome”, but that FPIC “should neither confer veto rights to individuals

or sub-groups nor require unanimous support from potentially impacted Indigenous Peoples.”

233

One

comment letter quoted a 2008 U.N. document that stated,

It should be noted that the FPIC process may include the option of withholding

consent. It should also be noted that, in most countries, neither indigenous peoples

nor any other population group actually have the right to veto development projects

that affect them. The concept of free, prior and informed consent is therefore a goal

to be pursued, and a principle to be respected to the greatest degree possible in

development planning and implementation.

234

There are some jurisdictions that have enacted legislation that formally adopts the standards of

UNDRIP and requires FPIC before projects can proceed, such as Australia and the province of British

Columbia, although some of the jurisdictions are still developing policies and procedures to fully

operationalize the principle.

Other best practices involve engagement with Indigenous Peoples and consideration and management

of the positive and negative socioeconomic impacts on them. These measures are intended to be

taken by mining proponents and are endorsed by the OECD, IFC, ICMM, PDAC, and IGF, among

231

Chickaloon Village Traditional Council et al., Response to Request for Information to inform Interagency Working

Group on Mining Regulations, Laws, and Permitting, 2022.

232

Accelerate Neighborhood Climate Action et al. Response to Request for Information to inform Interagency Working

Group on Mining Regulations, Laws, and Permitting, 2022.

233

Supra., note 176

234

“United Nations Resource Kit on Indigenous Peoples’ Issues.” United Nations, 2008.

https://unsdg.un.org/resources/resource-kit-indigenous-peoples-issues.

other organizations, and are requirements of certain jurisdictions, IRMA, and other voluntary

standards.

One measure involves the development of a Stakeholder Engagement Plan, and while Tribal Nations

are sovereign nations and not stakeholders, an analogous plan can also be developed for engagement

with Tribal communities. A Tribal Engagement Plan would generally include the following:

(a) Identifying Tribes that may be impacted by the company’s activities;

(b) Engaging with Tribes to design appropriate engagement processes;

(exploration, feasibility, construction, operation, closure, post-closure, etc.), and updating

that plan as development progresses;

(d) Documenting engagement processes and activities and making such documentation public;

(e) Providing to Tribes non-confidential information requested in a timely manner;

(f) Providing a way to protect confidential information provided by Tribes;

(g) Involving Tribes in the development of social and environmental impact assessments;

(h) Developing a grievance mechanism consistent with Chapter 1.4 of the IRMA Standard

(June 2018);

(i) Reporting back to Tribes on issues raised during engagement processes or through such

grievance mechanisms; and

(j) If necessary, offering financial assistance to Tribes to allow them to take part effectively in

the Tribal Engagement Plan.

Another measure involves the development of a Social Impact Assessment (SIA). Although

socioeconomic impacts are often analyzed in NEPA documents, the level of analysis and detail is often

considerably lower than a full-fledged SIA and generally does not cover the full sweep of social impacts

considered by SIA practitioners.

235

Some agencies, including the USDA, have issued guidance

specifically for performing SIAs as part of the NEPA process,

236

but the DOI has not. Furthermore,

while there will generally be ongoing monitoring of environmental outcomes and the effectiveness of

environmental mitigation measures during mining operations, and the USFS handbook requires

monitoring for social impacts, the IWG did not receive evidence regarding the existence or

effectiveness of any formal programs to monitor and mitigate the social impacts of mining by industry

or regulators in the United States.

The mining industry understands the benefits of SIAs. The 2002 final report from the industry-led

Mining, Minerals and Sustainable Development Project—the forerunner of today’s ICMM—noted that

235

Supra., note 27

236

Forest Service Handbook 1909.17 Chapter 30.

an SIA “provides an opportunity to plan how a minerals development project can best support

sustainable development and the community’s vision of the future[.]”

237

The Advisory Council on Historic Preservation has also issued a handbook, Early Coordination with

Indian Tribes During the Pre-Application Process, that outlines proactive steps federal agencies, Tribes,

and applicants can take to improve the consideration and protection of historic properties, including

those of religious and cultural significance, during infrastructure project planning by federal agencies

and applicants for federal approvals or funding. The guidance highlights early, pre-decisional

coordination and the importance of federal agencies assisting applicants in coordinating with Tribes

during pre-application stages to improve outcomes for agencies, Tribes, and applicants throughout

the process.

238

The IWG believes it is important to stress that not all impacts on affected communities are negative.

Indigenous Peoples can benefit from mining operations through jobs, economic development, new or

upgraded infrastructure, educational scholarships and opportunities, and direct investment by a mining

company in the community. Community benefit agreements (CBAs)—also referred to as community

development agreements or impact-benefit agreements—can help ensure that such benefits reflect

actual community needs, include input from the affected community, are well-planned, and last beyond

the conclusion of mining operations.

239

CBAs can include local hiring preferences, the purchase of

services and supplies from local vendors, infrastructure investments, resources to allow the community

to hire independent consultants to engage in monitoring and regulatory processes, payments into a

transition fund that could only be accessed upon a mine shutdown, and much more. The development

of CBAs is included in the 2018 IRMA Standard, which requires companies to ensure that CBAs are

developed transparently, with local participation, and with equitable inclusion of different social groups,

particularly women.

240

The Mining Association of Canada indicates that such agreements have become

a common practice in Canada and identifies over 500 agreements in place.

241

The First Nations Major Projects Coalition (FNMPC), a Canadian collective of 90+ Indigenous Nations

that works to “promote economic benefits maximization and minimize negative effects on [First

Nations’] lands and resources,” has developed a Major Project Assessment Standard to “’raise the bar’

237

“Breaking New Ground: The Report of the Mining, Minerals, and Sustainable Development Project.” Mining, Minerals

and Sustainable Development Project, 2002, p. 226. https://www.iied.org/9084iied.

238

Supra., note 220

239

World Bank, “Mining Community Development Agreements Source Book,” 2012, p. 10.

https://www.sfu.ca/rem/planning/research/IBA/Database.html.

240

IRMA Standard, Chapter 2.3. (2018).

241

The Mining Association of Canada, “Mining-Indigenous Relationship Agreements,” https://mining.ca/our-

focus/indigenous-affairs/mining-indigenous-relationship-agreements/.

for the meaningful inclusion of Canadian indigenous groups in major project assessment.”

242

The

FNMPC Standard is consistent with the comments of Tribal Nations to the IWG, including

endorsement of full implementation of UNDRIP and FPIC. One of the principles of the FNMPC

Standard is the development of a socio-economic impact assessment that “must be conducted either

collaboratively [with] or be community-led by”

243

the impacted Tribal Nation, and that the impacted

Nation must be “meaningfully involved in the development and implementation of an agreeable

Human Environmental Monitoring Program / Socio-economic Monitoring Plan.”

244

Another

requirement of the FNMPC Standard is that First Nations must “be meaningfully involved in

development and implementation of environmental management and monitoring plans, through the

life of the Project until reclamation and restoration efforts are completed to their satisfaction.”

245

Another best practice is providing financial or technical assistance to Tribal Nations to support them

to meaningfully participate in consultations and discussions with industry, or to allow for independent

review of technical reports and mineral exploration or development proposals that have the potential

to impact Tribal resources, whether during the permitting process or during mine operations,

reclamation, and closure. The Government of Canada recently initiated the Indigenous Natural

Resource Partnerships Program, which will distribute $80 million in grants over 5 years to Indigenous

communities, Tribal Councils, Indigenous organizations, and others to increase Indigenous community

capacity “to engage in, benefit from, actively participate in and/or capitalize on economic development

opportunities in the natural resource sectors,” among other purposes.

246

The Oglala Sioux Tribe

commented in its letter to the IWG, “Tribes must be provided with adequate funding for capacity

building and to ensure full and effective participation throughout the process. Tribes should be

remunerated for costs associated with consultations, such as providing ready access to technical

expertise, attending consultations, conducting studies, and producing reports.”

Multiple industry commenters also endorsed providing such assistance to Tribal Nations; for example,

one letter commented, “The federal government should provide funding and support training for

Tribes in NEPA, NHPA, FLPMA, NFMA and other relevant laws and processes to create capacity for

the Tribes to be able to effectively respond to the consultation requests.”

247

One organization

242

First Nation Major Projects Coalition, “FNMPC Major Project Assessment Standard.” 2021, p. 7. https://fnmpc.ca/wp-

content/uploads/2021/04/FNMPCMPASFINAL.pdf.

243

First Nation Major Projects Coalition, “Guidance Appendices to the Major Projects Assessment Standard,” 2021, p. 6.

https://fnmpc.ca/wp-content/uploads/2021/04/FNMPCMPASGuidanceappendices-FINALJanuary2020.pdf.

244

Supra., note 242 at 56.

245

Id. at 17.

246

Government of Canada, “Indigenous Natural Resource Partnerships,” no date. https://www.nrcan.gc.ca/our-natural-

resources/indigenous-natural-resources/indigenous-natural-resource-partnerships/22197.

247

NGM/Barrick Response to Request for Information to inform Interagency Working Group on Mining Regulations,

Laws, and Permitting, 2022.

suggested broader uses for financial assistance: “We recommend that the federal government make

funding for voluntary land and natural resource use planning available to Tribes, NGOs, and others in

areas with the potential for development of critical minerals.”

248

On December 1, 2022, the Federal

Permitting Improvement Steering Committee (FPISC) announced $5 million to be made available to

Tribes in order to enhance Tribal engagement in NHPA, NEPA and permitting processes, but this is

only applicable to projects that are covered under FAST-41.

IX. Royalties & Revenues

A. Background

As explained in section V. A. above, no royalties are due on locatable minerals extracted from Federal

lands. At this time, Federal revenue derived from hardrock mineral production on Federal lands is

limited to the location and initial maintenance fees thereafter.

249

For decades, the DOI and others

have been analyzing amending the 1872 Mining Law to impose royalties on hardrock mineral

production on Federal lands, similar to the longstanding royalties assessed on oil, natural gas, coal,

sodium, potassium, and other minerals on Federal lands that are disposed of via leasing. The analyses

generally assess what a royalty system should look like, how the royalty would be assessed (e.g., net,

net smelter return, or gross), how the product would be valued for royalty computation purposes,

what deductions should be allowed, the appropriate royalty rate, and other details. This section will

not attempt to restate that substantial body of work, but instead will provide a succinct summary of

the issue and present ideas for additional revenue to help provide a fair return to American taxpayers

for the extraction of valuable minerals from Federal lands and cover the cost of administering the

hardrock minerals program.

The USFS authority is limited to managing the surface use of National Forest System lands. The USFS

does not currently receive any funds collected from the mining claim fee program and does not

currently charge any fees to administer the surface use of national forest lands under the locatable

minerals program.

B. Royalty Analysis

The GAO recently studied mineral governance structures in different jurisdictions, including western

states—all of which use leasing systems and charge royalties on hardrock mining on State lands. In the

248

RESOLVE Response to Request for Information to inform Interagency Working Group on Mining Regulations, Laws,

and Permitting, 2022.

249

Mining companies also pay Federal taxes on income derived from mining operations, in addition to state and local

taxes.

same report, the GAO also studied mineral governance in Australia, Canada, and Chile, which are top

mineral-producing countries, perceived to have good mining governance, and are considered attractive

to investors. All three countries primarily use leasing, or agreements that are similar to a lease, to

manage exploration for hardrock minerals and mine development. Some Canadian provinces also

allow mineral exploration using a location system similar to the U.S., but all provinces generally require

conversion to a lease for production.

Under the President’s Reorganization Plan No. 3 of 1946, hardrock minerals found on acquired lands

can be disposed of through a lease. Because the BLM is responsible for the Federal mineral estate,

they manage the leasing process, including production verification, of Federal minerals. The Office of

Natural Resources Revenue (ONRR), as the agency responsible for royalty management functions,

collects royalty revenue from hardrock mining on acquired lands. ONRR ensures timely and accurate

reporting and payment of royalty obligations by conducting audits, compliance reviews, and other

investigation and enforcement tools. Currently, the BLM administers 54 active hardrock leases

covering 41,188 acres,

250

with 16 leases located in the Missouri lead belt currently producing minerals

with a 5 percent gross royalty via three mining operations. Below is a table of the revenue generated

from those leases between 2017-2021, as reported by ONRR.

251

Ta ble 1: Royalties a nd Rent from Federa l Hardrock Lea ses

Year

2017

2018

2019

2020

2021

Royalties and Rent

$8,659,434 $9,827,510 $7,801,115 $6,648,396 $8,973,460

In 2021, the BLM estimated the gross value of mineral production for gold, silver, copper,

molybdenum, lead, and zinc on all Federal lands in the west at approximately $4.9 billion during

2019.

252

Based on that 2019 estimate, the table below estimates the revenue that would have been

generated if those leases contained certain different royalty terms. For purposes of this analysis, all

valued minerals were assumed to be in active production and eligible for royalty taxation.

250

Bureau of Land Management, “Public Land Statistics 2021,” 2022. https://www.blm.gov/sites/default/files/docs/2022-

07/Public_Land_Statistics_2021_508.pdf.

251

U.S. Dept. of the Interior, Natural Resources Revenue Data. https://revenuedata.doi.gov/query-data.

252

U.S. Geological Survey, “Mineral Commodity Summaries,” 2021. https://www.usgs.gov/centers/national-minerals-

information-center/mineral-commodity-summaries.

Ta ble 2: Compa rison of Roya lty Rates to E stima ted Value of Loca ta ble Minerals Produced from Western

Federal Lands

Estimated Federal

Mineral Valuation Tax

Base, 2019

Gross Revenue

$4,896,704,954

$97,934,099

$244,835,248

$391,736,396

Net Smelter Return

$1,224,176,239

$24,483,525

$61,208,812

$97,934,099

Gross revenue royalties are typically assessed as a percentage of the value of the mineral extracted

and do not allow for deductions of mining costs. Net smelter return royalties are assessed as a

percentage of the value of the mineral, with deductions allowed for the costs of transporting and

processing the mineral (mill, smelter, or treatment costs), but no deductions allowed for extraction

costs. Costs in the above table are estimated at 75 percent of the 2019 Gross Revenue. This

assumption is in lieu of available information to estimate “at mine” and “at smelter” costs, which vary

by mine based on the mineral, ore grade, stripping ratio, geography, and commodity prices.

Not included in the above table due to a lack of relevant data are royalties based on net proceeds,

which are assessed as a percentage of the net proceeds (or profit) of the sale of the mineral with

deductions for various mining costs and therefore would be lower than net smelter return royalties.

GAO refers to these as “functional royalties.”

253

Royalty revenue from State lands in Alaska, Arizona,

California, Idaho, New Mexico, and Utah is partially based on net proceeds, which deduct operating

and overhead expenses from the tax base. The NMA has indicated support for a 2 percent net

royalty.

254

The IWG calculated estimated revenues looking at royalties of 8 percent, 5 percent, and 2 percent, a

range that is comparable to existing hardrock mineral leases on acquired lands and in other

jurisdictions. Industry has noted that setting a fixed royalty rate for all mines does not account for the

diversity of hardrock minerals and the different geological conditions and costs associated with

processing the minerals. Industry has also argued that imposing a royalty system on existing mines

could trigger a Fifth Amendment takings issue. The Congressional Budget Office (CBO) considered

this contention and concluded that, in its view, “imposing payments on mine operators with existing

claims is an exercise of the government’s sovereign power to levy compulsory fees.”

255

CBO estimated

that an 8 percent gross royalty on existing claims and operations would raise an average of $394

253

U.S. Gov’t Accountability Off., GAO-08-849R, Hardrock Mining: Information on State Royalties and Trends in Mineral

Imports and Exports (2008), https://www.gao.gov/products/gao-08-849r.

254

National Mining Ass’n., Principles for Royalty from Hardrock Mineral Production on Federal Lands, 2021.

255

Congressional Budget Office, “Cost Estimate for H.R. 2579, Hardrock Leasing and Reclamation Act of 2019,” 2020.

https://www.cbo.gov/system/files/2020-07/hr2579.pdf.

million per year, but that royalties on new operations would not be appreciable for at least ten years

due to the time it takes to bring new discoveries into production.

Imposing a royalty on minerals extracted from claims or leases would require additional staff for

production verification and auditing. Any statutory changes would also likely require ONRR to revise

its regulations governing product valuation for royalty computation purposes, appropriate deductions

and allowances, the collection and disbursement of any royalty revenue generated from hardrock

mining production, and ONRR’s ability to perform audits, compliance reviews, and other investigations

to verify the timely and accurate payment of revenue due. Changes to ONRR’s reporting systems

might also be required.

C. Claim Maintenance Fee Analysis

A processing fee of $20, location fee of $40, and initial maintenance fee of $165 for lode claims and

sites and $165 per 20 acres of a placer claim or portion thereof are required to be paid when first

recording a claim, with payment of a maintenance fee of $165 per lode claim or site and $165 per

20 acres of a placer claim or portion thereof required each year thereafter.

256

Maintenance and

location fees are adjusted at least every 5 years. An exception to the annual maintenance fee

requirement is provided by the Small Miner Waiver (SMW). Mining claimants that, along with all

related parties, hold or control no more than a total of 10 mining claims or sites nationwide and that

spend a minimum of $100 in labor on improvements for each claim, may obtain the SMW.

Over the last several years, the BLM’s location fees and claim maintenance fees have generated average

annual revenue of approximately $70-79 million, although in FY 2021, BLM collected over $100

million. In the annual budget and appropriations process, the BLM typically requests and Congress

appropriates approximately $40 million for Mining Law Administration program operations. This

appropriation of $40 million from the General Fund is then reduced by amounts collected by BLM

and credited to its Management of Lands and Resources appropriations account from mining claim

maintenance and location fees. Fees collected in excess of the $40 million appropriation are deposited

in the General Fund of the Treasury and offset other government spending. The USFS does not

receive any portion of claim maintenance fees to run its mineral program.

Increasing claim maintenance fees would have certain advantages, such as administrative simplicity and

the ability to establish a graduated fee structure that could incentivize claim holders to diligently

explore and develop their claims. A graduated and increasing claim maintenance fee schedule would

disincentivize the holding of mining claims without bringing minerals into timely production, thereby

256

43 C.F.R. § 3830.21

encouraging the development of critical minerals. The table below estimates the revenue that would

have been generated from different claim maintenance fee levels in 2022.

Ta ble 3:

Revenue from Different Claim Maintenance Fee Levels

2022 non-

SMW Federal

Land Claims

$165 Flat Rate

$300 Flat Rate

$500 Flat Rate

Active claims

257

471,800

258

$77.8 million

$141.5 million

$235.9 million

D. Small Miner Waiver

As mentioned in the previous section, mining claimants that, along with all related parties, hold or

control no more than a total of 10 mining claims or sites nationwide and that spend a minimum of

$100 in labor on improvements for each claim, may obtain the SMW. The SMW was the subject of

a 2018 DOI Office of Inspector General Report, which found that the program was “essentially an

honor system” and recommended that the BLM "perform a cost-benefit analysis of the administrative

cost and the burden of managing the maintenance fee waiver for small miners.”

259

The BLM’s cost-

benefit analysis found that there were significant administrative costs associated with the program,

including processing administrative appeals and combating fraud, but only “anecdotal observations of

possible benefits.”

260

Multiple groups, including one consisting of a large number of former BLM employees,

261

recommend

eliminating the SMW entirely. These groups argue that eliminating the SMW would disincentivize

unnecessary ground disturbance while reducing administrative costs. Eliminating the SMW would also

avoid the need to adjust waiver requirements and maintenance fees in tandem. Small mining interests

counter that the SMW remains an important tool for small claimants who are diligently pursuing

development and should be retained.

257

“Active claims” are those claims which have a title that is actively maintained, and is not a reflection of production.

The annual claim fee scenarios do not account for price sensitivity. That is, the quantity of claims is static across all fee

scenarios, whereas in reality some percent of claims would likely leave the market, or conduct assessments in lieu of

claim fees, as claim fees increased. The amounts in Table 3 are therefore an upper bound.

258

Approximate number as of September 30, 2022, based on total number of active claims, minus the estimated

number of SMW claims in 2022. Source: BLM.

259

Department of the Interior, Office of Inspector General, “Bureau of Land Management Maintenance Fee Waivers for

Small Miners,” Dec. 2018. https://www.doioig.gov/reports/inspection/bureau-land-management-maintenance-fee-waivers-

small-miners.

260

Id.

261

Public Lands Foundation Response to Request for Information to inform Interagency Working Group on Mining

Regulations, Laws, and Permitting, 2022.

The table below includes estimates for revenue at different claim maintenance fees if the SMW were

eliminated. The second row assumes all claimants currently holding the SMW pay the claim fee.

262

The third row assumes that 20 percent of the SMW holders would relinquish their claims instead of

paying the fee.

Ta ble 4:

Revenue from Different Claim Maintenance Fee Levels and SMW Scenarios ($ in millions)

2022 Federal

Land Claims

$165 Flat

Rate

$300 Flat

Rate

$500 Flat

Rate

Active claims paying fee

471,800 $77.8 $141.5 $235.9

Active claims, w/o SMW

489,099

$80.7

$146.7

$244.5

Active claims w/o SMW (net)

485,640

$80.1

$145.7

$242.8

X. Financial Assurances and Bonds

The BLM and USFS hold billions of dollars in financial assurances, such as bonds, for hardrock mining

operations on Federal land. These financial assurances are designed to prevent taxpayers from

assuming the financial burden of mine site reclamation if an operator is unable or unwilling to perform

the reclamation themselves. Reclamation may include removing roads and structures, regrading,

reseeding, and otherwise returning the surface to as near a natural condition as possible, or another

approved safe and productive condition. Reclamation does not include responding to releases or

threatened releases of hazardous substances from mining operations. The USFS and BLM also hold

financial assurance for long-term maintenance and operations, such as perpetual post-closure water

treatment required to protect surface and groundwater resources. Currently, there is no mechanism

to collect any form of revenue or financial assurance to cover unplanned or unpredicted conditions.

Nor is there a mechanism to collect any form of revenue or financial assurance to cover responding

to releases or threatened releases of hazardous substances from mining operations. USFS and Interior

regulations do not require public review or disclosure of financial assurance amounts.

A. BLM Financial Assurance Requirements

When, in 1980, the BLM first began administering Interior’s regulation of mining operations under the

Mining Law, the Surface Management regulations at 43 C.F.R. § 3809 included a provision providing

the authorized officer with discretion to require a financial assurance for plans of operations.

263

There

was no bonding requirement for notice and casual use-level operations.

262

SMW numbers for 2022 are estimated assuming a consistent percentage of SMWs (3.5%) from previous years.

263

45 Fed. Reg. 78913 (Nov. 26, 1980).

In 2001, Interior amended the surface management regulations, and those amended regulations

remain in effect today. The regulations now include a financial assurance requirement for all notice

and plan-level activities. The current regulations also place the burden of bond determination

calculations on the operator, with the BLM reviewing those calculations to ensure bond sufficiency.

Currently, the BLM allows surety bonds, cash, irrevocable letters of credit, certificates of deposit,

trusts, and insurance, but corporate guarantees are not accepted.

Based on BLM’s program experience, the IWG’s view is that insurance policies perform poorly as a

form of assurance in the mining context. The premium-to-coverage period relationship and related

cancellation policies of most insurance companies undermine long-term protection of Federal

interests and provide little to no warning of a stoppage of premium payment and subsequent policy

cancellation. Further, if a mine operator becomes insolvent and files for bankruptcy, the court may

freeze payments to creditors, including insurance companies, during the pendency of bankruptcy

proceedings. Absent policy payments, policies may lapse, and taxpayers may assume eventual liability.

The BLM is allowed to enter into agreements with States to establish financial assurance amounts, as

it has with Nevada. Under such agreements, the State can be the holding agency for financial

assurances, as long as those assurances adequately cover BLM’s performance standards and the

Secretary of the Interior has access to the funds. Also, the BLM may require an operator to provide

a long-term financial mechanism (i.e., trust funds) to ensure the continuation of post-mining

maintenance of any treatment facilities and infrastructure.

In 2019, GAO reviewed the amount of financial assurances held by the BLM and USFS for hardrock

mines and reported that as of the end of FY 2017, BLM held $3.047 billion in financial assurances, a

shortfall of approximately $11 million in estimated total reclamation costs.

264

As of the end of FY

2022, the BLM held $3.67 billion in bonding for notice and plan level operations, with a shortfall of

$18.9 million.

265

For all operations where a shortfall in bonding is identified, BLM prepares a corrective

action plan.

264

U.S. Gov’t Accountability Off., GAO-19-436R, Hardrock Mining: BLM and Forest Service Hold Billions in Financial

Assurances, but More Readily Available Information Could Assist with Monitoring (2019),

https://www.gao.gov/products/gao-19-436r.

265

BLM Memorandum, Fiscal Year 2022 – 3809 State Director Bond Review Certification.

B. USFS Financial Assurance Requirements

The USFS promulgated regulations for locatable operations in 1974, which included provisions for

reclamation

266

and bonding.

267

The regulations state that the authorized officer has the discretion to

require a bond or other listed form of acceptable financial guarantee from any operator required to

file a plan of operations. The regulations also state that the amount of the bond should be based on

the estimated cost of stabilizing, rehabilitating, and reclaiming the area. Forest Service regulations at 36

C.F.R. § 228.4(a)(3) require an operator to submit a plan of operations if the proposed operations

will likely cause a significant disturbance of surface resources.

FSM 2840, last updated in 1990, directs the authorized officer to require a bond or other acceptable

form of financial guarantee for any proposal that requires a plan of operations, and that the guarantees

should be sufficient to cover the full cost of reclamation. The 2004 “Training Guide for Reclamation

Bond Estimation and Administration for Mineral Plans of Operation Authorized and Administered

under 36 C.F.R. 228 A” further clarifies that the full cost of reclamation includes the cost as if the

government were to hire third-party contractors to complete the work.

268

Currently, the Forest

Service accepts a corporate surety bond, cash in the amount equal to the required dollar amount

deposited into a Federal depository, or negotiable securities of the U.S. having market value at the

time of the deposit not less than the required dollar amount of the bond

269

; or an irrevocable letter

of credit, assignment of savings, or CD; or, in the instance of long-term post-closure obligations, a

trust fund as financial guarantee instruments.

270

However, due to the language at 36 C.F.R. § 228.13,

trust fund investment options are limited to negotiable securities of the U.S.

USFS policy encourages the authorized officer to avoid duplicative bonding between the agency and

other partner Federal or State agencies by entering into cooperative agreements. While not explicitly

stated in regulation or policy guidance, the Forest Service does not recommend entering into any

agreement that would prevent the authorized officer from accessing the full dollar amount required

to reclaim USFS lands or held in an instrument that is not allowed by the agency. Forest Service policy

requires units to periodically review reclamation cost estimates and financial guarantees for adequacy,

with a recommended period of one-year reviews. As of October 2022, the Forest Service currently

holds approximately $275M in financial guarantees for 603 hardrock operations.

271

266

36 C.F.R. § 228.8.

267

36 C.F.R. § 228.13.

268

U.S. Department of Agriculture Forest Service, “Training Guide for Reclamation Bond Estimation and Administration,”

April 2004, https://www.fs.usda.gov/geology/bond_guide_042004.pdf.

269

36 C.F.R. § 228.13(a).

270

FSM 6560.

271

Includes all approved plans of operation, from small scale placer operations to larger producing mines.

C. EPA CERCLA Section 108(b) hardrock mining review

Section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA), also known as “Superfund,” directs the EPA to develop regulations that require classes of

facilities to establish and maintain evidence of financial responsibility consistent with the degree and

duration of risk associated with the production, transportation, treatment, storage, or disposal of

hazardous substances.

272

Between 2007 and 2017, EPA conducted several analyses related to

hardrock mining financial responsibility for its proposed and final rulemakings under CERCLA Section

108(b). Analyses described in background documents for the proposed rule include, among other

things, an overview of practices at hardrock mining facilities, a review of damage cases at hardrock

mines, instrument specification and provider qualification reports by financial responsibility instrument

type, financial responsibility requirements of State and Federal agencies, and a market capacity study

that assessed the capacity of third-party markets to underwrite financial responsibility instruments

required by the CERCLA 108(b) rulemaking.

EPA did not finalize the proposed requirements, instead determining in 2018 that final regulations

were not appropriate. This decision was based on an interpretation of the CERCLA statute and an

analysis of the record developed for the rulemaking. EPA found that, in the context of CERCLA

Section 108(b), the degree and duration of risk associated with the modern production,

transportation, treatment, storage, or disposal of hazardous substances by the hardrock mining

industry does not present a level of risk of taxpayer-funded response actions that warrants the

imposition of financial responsibility requirements by EPA for this sector.

273

In relation to the IWG's

specific focus on Federal lands, EPA’s final rule referenced statements from BLM and USFS that stated

that no modern mines permitted since 1990 by either BLM or the Forest Service have been added

to the CERCLA National Priorities List. This decision does not affect the environmental requirements,

the process for site-specific risk determinations, or enforcement authorities that already exist under

environmental statutes such as CERCLA, RCRA, CWA, CAA, and NEPA.

272

42 U.S.C. § 9608(b).

273

83 Fed. Reg. 7556 (Feb. 21, 2018).

XI. Additional Issues and Needs Raised to Revitalize Domestic Mining

A. U.S. Bureau of Mines

At the end of the 20th century, the U.S. lost its position as the global leader in mining, both in terms

of total production and the development of cutting-edge mining technology. Our mineral needs are

increasingly met by foreign entities that provide needed minerals at a lower cost, often because of

cheaper labor and less stringent environmental and workplace safety standards. The infrastructure

necessary to restart the domestic mining industry has atrophied with the increased offshoring of

mining. Our educational system also scaled back mining programs, and the number of graduates every

year is a fraction of those of other major mining nations. The shrinking educational pipeline threatens

the United States’ ability to train and develop the regulators and skilled workforce required to

strengthen the domestic mineral supply chain.

In order to cultivate an environment conducive to rebuilding the U.S. mining sector, the Federal

government needs to promote a stream of consistent and widely available geologic data, technology,

and support infrastructure, as well as dedicated funding for mining science, metallurgy, and mining

education. In recognition of the need for additional data, technology, research, and consistency, several

commenters recommended that the U.S. Bureau of Mines (USBM), or a similar single agency, be re-

established.

The USBM was the primary Federal agency conducting scientific research and disseminating

information on the extraction, processing, use, and conservation of mineral resources from 1910

through 1996, when it was defunded by Congress. Although originally founded to deal with a wave

of catastrophic mine disasters, including an alarming number of fatal explosions and fires in U.S.

underground coal mines, the mission of the USBM expanded over the years to include the following

functions:

274, 275

• conducting scientific and technologic investigations concerning mining, and the preparation,

treatment, and utilization of mineral substances with a view to improving health conditions,

increasing safety, efficiency, economic development, and conserving resources through the

prevention of waste in the mining, quarrying, metallurgical, and other mineral industries;

• inquiring into the economic conditions affecting these industries;

• investigating explosives and peat;

274

30 U.S.C. § 3.

275

National Park Service, “History of the Bureau of Mines Project,” Apr. 2015.

https://www.nps.gov/miss/learn/management/bomhist.htm.

• investigating the mineral fuels and unfinished mineral products belonging to, or for the use of,

the United States, with a view to their most efficient mining, preparation, treatment, and use;

and

• disseminating information concerning these subjects.

These functions were further refined to include research to develop the scientific basis for technology

to help meet the Nation’s mineral and material needs and mitigate associated economic, human, and

environmental costs. The USBM sought improvements for almost every aspect of the materials

production cycle, from removing minerals from the earth to enhancing the performance of materials

to pursuing waste management technologies and resource conservation. The health and safety of the

workers in the Nation’s mines and mineral processing plants and the environmental impact of mining

and mineral processing were major USBM concerns.

When Congress closed the USBM on September 30, 1996, almost $100 million, or 66 percent, of its

programs ceased, and approximately 1,000 of its employees were dismissed. Part of the functions of

the USBM were transferred to other Federal agencies, including BLM, USGS, the Bureau of

Reclamation, and the Office of Surface Mining Reclamation and Enforcement (OSMRE) within the

Department of the Interior, as well as DOE and the Department of Health and Human Services.

276

B. Access to Data

The importance of timely processing of mineral exploration proposals is emphasized by the industry’s

assertion that by 2019, only about 5 percent of the U.S. had been explored and mapped using high-

resolution geophysical technologies.

277

Furthermore, in the U.S., companies are not required to share

or report on their own mineral surveys or analyses. The closure of the USBM resulted in the loss of

a central Federal steward of USBM research and mining data repositories and inconsistent

preservation and transfer of USBM data, maps, reports, and information (mostly in hardcopy or

microfiche formats) to various successor agencies and the National Archives.

278

The extent to which

USBM data, maps, reports, and information have been preserved is unknown, which poses challenges

to accessing USBM information. The USGS and a few other libraries are in the process of digitizing

and placing online some historic USBM publications, most of which are not otherwise available except

276

U.S. Department of the Interior Bureau of Mines, “The History of the U.S. Bureau of Mines,” 1994, p. 32.

https://babel.hathitrust.org/cgi/pt?id=uc1.31210024859777&view=1up&seq=13; and JN Murphy, “Update on the

Continuing Functions of the Former US Bureau of Mines,” Min. Eng. 1997 Jan, pp. 87-89.

277

Drenth, B. J., V. J. S. Grauch (2019), Finding the gaps in America’s magnetic maps, Eos, 100.

https://doi.org/10.1029/2019EO120449.

278

National Archives, Records of the U.S. Bureau of Mines, no date, https://www.archives.gov/research/guide-fed-

records/groups/070.html.

in physical copies and are at risk of being lost. Some States have conducted and developed open-

source data repositories from research conducted by the State and academia, or voluntarily shared

by landowners or companies.

Many other countries require that companies report data on mineral exploration and extraction. Both

Canada and Australia have built comprehensive geoscience databases that collect and provide public

access to exploration and extraction data, with certain protections for proprietary information.

279

Canada and Australia also invest significantly in geologic mapping in addition to collecting information

from mining companies.

According to the Association of American State Geologists, the United States lacks an effective process

for gathering, organizing, compiling, or publicly sharing geologic data that would help in the

identification of valuable mineral deposits.

280

Part of this shortcoming occurs because mining

companies are not required to share mining and exploration data with Federal or State governments.

The USGS and State geological surveys have been collaborating on a series of efforts to conduct new

geophysical and geochemical surveys and geologic mapping through the USGS Mineral Resources

Program’s Earth Mapping Resources Initiative (Earth MRI) and to preserve and provide access to

legacy geological, geophysical, and geochemical data relevant to domestic mineral resources through

the USGS National Geological and Geophysical Data Preservation Program. These efforts are

generally restricted to providing and preserving public domain data and do not collect or serve non-

public data, with a few exceptions in which States have entered into a data sharing agreement with

the data owners. State geologic surveys may also not be allowed to enter mining claims for the

purpose of gathering data for geologic mapping, exacerbating the problem and forcing the creation

of incomplete maps. Having a Federal protocol for data collection, organization, compilation, and

public dissemination could improve identification and development of critical minerals while also

helping to identify and avoid sensitive resources that may be adversely affected by exploration or

mining. Informational improvements such as these could greatly enhance land and resource

management, environmental reviews, public engagement, and, where appropriate, the permitting of

mining projects.

While the 1872 Mining Law does not bar a mining company from proposing mining activities in areas

that may include or impact sensitive resources, competing resource values can complicate

development and permitting efforts, delaying development, increasing costs, and inviting litigation.

Mining operators may have incomplete information about competing values that exist on a tract of

279

See Canadian Mining and Mineral Data, including interactive maps and mineral commodity flows at:

https://www.nrcan.gc.ca/maps-tools-and-publications/maps/mining-minerals/16878; and Australia’s Mineral Potential

Mapper at https://www.ga.gov.au/scientific-topics/minerals/mineral-potential-mapper.

280

IWG Informational Meeting with AASG, May, 2022.

land and therefore insufficient information to evaluate the extent to which conflicts between

exploration and development and cultural and environmental stewardship may impact the

environmental review process and/or permitting. Integrating geologic, environmental, and cultural data

into a common platform may increase the capacity to avoid adverse impacts, minimize impacts that

cannot be avoided, and further mitigate impacts that remain.

C. Research, Science & Technology

Today’s critical mineral list is significantly different from one that would have been developed in the

early 20th century, or the late 20th century, and we should fully expect that lists will continue to

evolve. New technologies can make previously uneconomic ore deposits profitable while increasing

the importance of previously unimportant minerals. The growing demand for EV batteries, for

example, has put tremendous pressure on the market for lithium, cobalt, nickel, graphite, and

manganese.

The public perception of mining is often framed by images or experiences with mining landscapes that

were developed prior to modern regulations, technologies, and practices. It is fair to state that current

mines do not look like those of the pre-regulatory past, and the next generation of mines may not

look like those of the present, both in scope and in terms of environmental impact. This could mean

expanded processing of by-product critical minerals, new methods for tailings management,

autonomous operations, and increased use of electric haul trucks and other mining equipment.

Additional areas for innovation may include the next generation of digital operations, smart sensors,

and new biology-based separation and concentration technologies.

There are numerous science and technology needs related to the mining life cycle, from extraction

to post-remediation. Some of these science and technology needs were outlined in a 2002 National

Research Council study,

281

as well as in more recent publications.

282

Mining research and development

can lead to new technologies that reduce production costs, enhance the quality of existing mineral

commodities, reduce the environmental impacts of mining them, and create entirely new mineral

commodities.

Additional data and research are needed on how mines and mining impact surface and groundwater

quality and flows, as well as other factors that complicate environmental analysis and permitting, and

281

National Research Council, “Evolutionary and Revolutionary Technologies for Mining,” 2002.

https://nap.nationalacademies.org/catalog/10318/evolutionary-and-revolutionary-technologies-for-mining.

282

U.S. Geological Survey, “Critical Mineral Resources of the United States—Economic and Environmental Geology and

Prospects for Future Supply,” 2017, p. 797. http://doi.org/10.3133/pp1802. U.S. Geological Survey, “A resource lifecycle

approach,” 2013, p.37. https://doi.org/10.3133/cir1383D.

existing data needs to be housed in a single repository, making it easier to access. Such research would

help agencies and the public understand and improve the accuracy of impact predictions in EISs and

the effectiveness of management and mitigation measures. The USGS, other research agencies, and

Federal land managers are working to improve our understanding of these processes and their

impacts. Additional research is needed to improve practices for re-processing, water treatment, and

management and reclamation of tailings, waste rock, and overburden, as well as to continually improve

characterizing the potential for acid rock drainage and metal leaching. Better predictive models are

needed for understanding the geochemistry of waste rock, ore, and tailings and associated leachate

production, as well as site-specific precipitation patterns to inform capacity design and water balance

calculations. NGOs and industry both encourage the Federal government in their comments to the

IWG to provide additional support for development of new technologies that can reduce overall

mining costs, improve production and efficiency, and avoid, reduce, or minimize environmental

impacts.

The costs of mine closure and reclamation of the site now constitute a significant

portion of mining cost. Hence, ore bodies that can be mined in a way that produces

virtually no waste and that leaves a small surface ‘footprint’ may have distinct economic

and environmental advantages over ore bodies that produce large amounts of waste

and create large land disturbances. Until recently, these criteria have generally not

figured significantly in decisions about mineral exploration. Exploration geologists are

now developing new ore-deposit models to improve the chances of finding such

‘environmentally friendly’ ore bodies.

283

As a next step in the process of mineral deposit modeling, scientists at the USGS have developed

geology-based geoenvironmental models for diverse mineral deposit types. “[T]he need for and use

of geoenvironmental models are immediate and varied; these range from environmental prediction

and mitigation, and baseline characterization, to grass-roots mineral exploration, and assessment of

abandoned mine lands and mine-site remediation.”

284

283

Supra., note 281

284

U.S. Geological Survey, “Geoenvironmental Models of Mineral Deposits--Fundamentals and Applications,” 1995, p.

272. https://pubs.usgs.gov/of/1995/ofr-95-0831/.

D. Training and Education

The 1970 Mining and Minerals Policy Act;

285

the 1980 National Materials and Minerals Policy, Research

and Development Act;

286

the Energy Act of 2020;

287

and the 2021 Infrastructure Investment and Jobs

Act

288

all contain language directing Federal departments to develop recommendations to ensure

adequate staffing and training of personnel responsible for reviewing, permitting, and monitoring

mineral-related activities on Federal land and for mapping, characterizing, and assessing domestic

mineral resources. Industry has also supported providing additional funding to the BLM and USFS for

appropriate staffing and has noted their own need to increase the trained labor force for mining

development and oversight. However, a lack of educational programs for building expertise in mining

and mining oversight and a lack of interest in mining among the cohort of students who will become

the managers of tomorrow compound a shortage of properly trained workers.

The mining industry is having difficulty attracting young professionals and building a workforce. One

major obstacle appears to be the negative public perception of the industry, in addition to limited

resources and support for educational programs. As the National Research Council frames the issue:

[A] by-product of investment in research and development is its beneficial effect on

education. Research funds flowing to universities support students at both the

undergraduate and graduate levels and provide opportunities for students to work

closely with professors. In a synergistic way research and development funds help

ensure that a supply of well-trained scientists and engineers will be available in the

future, including individuals who will be working in the fields of exploration, extraction,

processing, health and safety, and environmental protection, as well as researchers,

educators, and regulators.

289

285

30 U.S.C. § 21a.

286

Pub. L. No. 96-479.

287

Pub. L. No. 116-260, Division Z.

288

H.R.7516 - Clean Energy Innovation and Deployment Act of 2020.

289

Supra., note 281

XII. RECOMMENDATIONS

The IWG’s recommendations are a synthesis of input from all levels of government, from career

technical experts to agency leadership, with a wide range of technical backgrounds and diverse

perspectives drawn from dozens of departments, agencies, and offices, heavily informed by input from

an even broader array of stakeholders, scientists, legal experts, and Tribal, State, and local government

officials. Due to the breadth of topics being analyzed, the IWG formed subgroups that provided

additional analysis and expertise to the full IWG. This report and the recommendations that follow

are the product of input from all of these sources, as well as from an interagency comment process

and a deputies-level working group.

290

The departments and agencies represented on the IWG have concluded that the current

configuration of our mining laws—where access is provided by the 150-year-old Mining Law of 1872

while standards for environmental performance, public engagement, and protection of Tribal rights

and resources are included through a patchwork of Federal and State laws—fails to meet the needs

of communities, developers, Tribes, or the environment. In particular, there is no mechanism to focus

development on areas with high mineral values and low resource conflicts. To strengthen the domestic

mineral supply chain while increasing environmental protection and stakeholder engagement, we

would need to overhaul how we approach mining on Federal lands. The IWG believes it would be

failing at its mission if it did not outline a comprehensive vision of future management that pushes for

high-value, low-conflict outcomes.

The IWG believes that positive outcomes would be maximized if Congress established a leasing system

for hardrock minerals that is built upon a robust land use planning framework. Such a system should

drive development to low-conflict, high-mineral-value areas early in the process, providing more

certainty for developers and more protections for sensitive areas and potentially impacted Indian

Tribes and communities. New revenue from royalties and updated claim maintenance fees would be

coupled with revenue sharing provisions to assure that all impacted Indian Tribes, communities, and

landscapes benefit from the economic development of these resources and that sufficient revenue is

raised to fully address all remaining legacy mining impacts, while protective standards would prevent

new long-term mining impacts before they arise. Specific permitting requirements that consider

hardrock mining’s particular impacts would provide additional certainty and clarity for operators and

permitting agencies alike. These efforts would be accompanied by a sustained effort to accelerate

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As noted in Footnote 6, this report is not a budget document and does not imply support or approval of any specific

action or investment. All activities and recommendations included in the report are subject to the Administration's

annual budget formulation process, including resource constraint and policy priority considerations, as well as the

availability of appropriations provided by Congress.

mining for critical minerals in appropriate areas through financial incentives for responsible production

and permitting prioritization.

One way to implement this vision would be through the development of a joint DOI-USDA

programmatic EIS with associated land use management plan updates and detailed resource

assessments covering the eleven contiguous Western states and Alaska. This programmatic review

would classify lands into one of three categories:

 Priority I lands would have undergone previous mineral exploration or development that

resulted in significant site degradation, contamination, or ongoing pollution discharges, and

where reprocessing could provide additional valuable minerals while remediating or redressing

prior or ongoing resource damage;

 Priority II lands would have high mineral resource development potential and lack significant

known resource development conflicts. Priority II areas would be identified only after the

agency or agencies complete early and meaningful engagement with Tribes, other agencies

with expertise on the lands and resources they contain, and stakeholders who may be

impacted by development; and

 Priority III lands would be those lands not believed to have high mineral development potential,

or where the programmatic review determines that mineral development would likely involve

significant resource conflicts.

With appropriate congressional authority and direction, DOI and USDA could then establish financial,

procedural, and substantive incentives consistent with the recommendations contained in this report

to prioritize development in Priority I and II areas. Such a programmatic assessment could also alert

prospective mineral developers to the heightened permitting challenges that are likely to accompany

efforts to develop in Priority III areas, and include additional management stipulations to proactively

address avoidance and mitigation needs. National parks, wilderness areas, wildlife refuges, military

lands, or other withdrawn lands, designated critical habitat for species listed as threatened or

endangered under the ESA, sites listed on or eligible for the National Register of Historic Places, areas

subject to treaty reserved uses by Indian Tribes, drinking water source areas, and other similar areas

would be considered for exclusion from availability for mineral claims or leases.

The IWG recommends that Congress work closely with the mining industry, Tribes, mining

communities, environmental NGOs, labor, and the Administration to craft a planning and leasing

system that creates certainty and stability for industry, strengthens domestic mineral supply chains,

advances environmental sustainability, and fosters early and meaningful community engagement.

Although thoughtful concerns were raised by the mining industry regarding the existing hardrock

leasing system that is used on certain Federal lands, the IWG notes that hardrock leasing is the

predominant method of mineral access used by other major mining nations,

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and the IWG did not

receive any arguments as to why a properly designed leasing system could not be equally successful

in this nation, with a careful and appropriate transition to ensure that current exploration and

development is not adversely affected and that the system enhances, not hinders, future development.

The IWG also believes that careful consideration should be given to allowing prospectors to continue

to stake mineral claims during this transition to a leasing system and that a fair process should be

established for the conversion of claims to leases or other legal instruments established by Congress.

Once a leasing system is in place, mineral claimants should be required to convert claims to leases as

a condition of mine plan approval. This approach would continue to give mining interests broad

latitude to investigate potentially valuable mineral deposits while providing Federal agencies with

additional tools to tailor operational requirements to individual circumstances.

While the focus of this report is mainly on extraction and permitting on Federal lands, that is only

one component of the necessary government-wide effort to secure mineral supplies, which must also

include building a robust circular economy, working closely with our international partners on new

sources of supply, and driving higher performance standards worldwide. This work is occurring in

other forums.

The IWG recommends the following policy measures, regulatory changes, and legislative actions to

reduce permitting timelines for exploration and development of domestic minerals on Federal land

without sacrificing environmental protection. The IWG believes these reforms can increase

consideration of impacts and engagement with Tribes and local communities. Some of these reforms

address aspirational goals and system-wide changes, and many also address permitting, community

engagement, environmental protection, and other needs, improving the clarity of expectations for

both operators and communities. The IWG strongly recommends that, to the maximum extent

possible and consistent with agency statutory mandates, Federal agencies coordinate these efforts.

The IWG believes that, wherever possible, BLM, USFS, EPA, USACE, FWS, and other Federal agencies

should issue joint regulations and guidance. Consistent requirements and guidance promote clarity for

permit applicants, better applicant submissions, and decisions that are more durable and timelier.

IWG recommendations that would require legislative action by Congress are identified with an (L);

recommendations that would require Federal agencies to promulgate or amend regulations are

identified with an (R); and other recommendations that may be achieved by updating Federal or

agency policies are identified with a (P). In some cases, a recommendation may fall into more than

one category; for example, a change to policy that would be more effective if made enforceable

through regulation is identified by multiple letters, e.g., (P, R).

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Supra., note 9.

The IWG stresses that a key to success for many of the recommendations in this report is providing

appropriate resources to the entities that would implement them, whether they are Tribal

governments, Federal agencies, or State or local governments.

A. Access to and Use of Federal Lands

The IWG concluded that a properly designed and implemented leasing system would best provide

access to minerals on Federal lands. However, the IWG also believes that the transition to such a

system could be complex administratively and complicate new exploration and development efforts.

These effects may, in turn, cause short-term delays in efforts to meet clean energy and climate goals.

Amending land use plans to better address hardrock mining and ancillary uses would likewise take

significant resources to complete. The IWG believes there are a number of improvements that can

reduce resource conflicts, incentivize development in low-conflict areas, avoid damage to special areas,

promote the use of best practices, and foster early and meaningful engagement with Tribal Nations

and traditionally underrepresented communities. These improvements do not displace the benefits of

transitioning to a leasing system or addressing mining and ancillary uses in land use planning and can

be taken independently of or during the time required to implement more comprehensive reforms.

Background on access and use of Federal lands is found in Section V.A.

1. Amend the 1872 General Mining Law to permanently end patenting of Federal lands. (L)

Congress should codify the moratorium currently included in annual appropriations bills to

permanently end patenting of Federal lands under the Mining Law. This change would promote

stability and predictability and has had bipartisan support for over three decades.

2. Congress should develop a leasing system to provide access to hardrock minerals on public lands

(L).

As previously discussed, the IWG recommends that Congress work closely with the mining

industry, Tribes, mining communities, environmental NGOs, labor, and the Administration to craft

a planning and leasing system that creates certainty and stability for industry, strengthens domestic

mineral supply chains, advances environmental sustainability, and fosters early and meaningful

community engagement. The IWG also believes that Congress should develop a fair process for

converting claims into leases or other legal instruments. Transitioning to a leasing system, while

recognizing valid existing mineral claims and requiring conversion of those claims to leases prior

to development, would enhance comprehensive resource management and allow American

taxpayers to capture a share of the revenue generated by the production of publicly owned

resources.

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3. Once a leasing system is established, prepare a programmatic Environmental Impact Statement to

incorporate mining into land use planning processes (L)

The IWG believes that for a leasing system to be most effective, Federal land management plans

need to identify areas where hardrock mining is presumptively appropriate and areas where

hardrock mining is presumptively inappropriate because of significant or irreconcilable impacts on

other resources. The IWG recognizes that amending individual land use plans to address hardrock

mining would be administratively onerous and therefore encourages Congress to direct and

resource the BLM and USFS to prepare a programmatic EIS, similar to those prepared for solar

and wind development on Federal lands, to guide agency leasing decisions. The BLM, USFS, and

their partner agencies could then tier to the programmatic EIS’s tentative suitability determination

in completing subsequent NEPA analyses, reducing the time required for subsequent

environmental reviews and permitting determinations. Determinations made in the programmatic

EIS should be treated as presumptively valid unless site-specific information unavailable in the

programmatic EIS identifies significant new resource development conflicts.

The IWG believes that while a programmatic EIS could provide benefits independent of a leasing

system by, for example, alerting potential mineral developers to challenges they are likely to

encounter if they seek to develop in uniquely sensitive areas, a programmatic EIS would be far

more useful if completed in conjunction with the transition to a leasing system. The IWG therefore

encourages Congress to adopt a phased approach, transitioning to a leasing system and defining

the requirements for hardrock mineral leasing before directing and resourcing the BLM and USFS

to initiate work on a programmatic assessment of mineral development suitability.

4. Conduct one or more pilot projects exploring innovating ways to integrate mining into land use

planning processes. (P)

A pilot program would allow the agencies to test novel land use planning strategies that are not

part of standard FLPMA or NFMA procedures. If resources become available, then these strategies

could be implemented across the agencies’ land base to reduce conflicts and drive mineral

development to high-value, low-impact areas.

For example, the Arctic Executive Steering Committee recently launched an initiative on the

sustainable development of critical minerals in Alaska, with DOI partnering with the State of Alaska

and other academic, Tribal, and local partners. The Committee aims to improve understanding of

Alaska’s critical mineral resources, the community and environmental sustainability concerns about

developing those resources, and to develop and demonstrate a community-led approach to

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inform decisions on developing those resources. One potential outcome of the initiative would

be to identify areas for potential mine development, expansion, or mine waste reprocessing where

development would be less controversial and more supported because the decision-making

process reflects community, economic, and environmental values. The IWG encourages the BLM

and USFS to partner with the USGS, which is currently leading efforts to improve understanding

of critical mineral resources, to understand community and sustainability concerns, and to pilot

community-led decision processes. These agencies should also partner with other Federal

agencies, Tribes, States, communities, NGOs, and the mining industry to identify other locations

where similar initiatives or other innovative approaches could provide access to new mineral

resources while incorporating community, Tribal, and environmental concerns from the very

beginning.

5. Amend Interior and USFS regulations and policy to provide for consistent implementation of the

Mining Law and access to minerals. (R)

The BLM and USFS should cooperatively amend their respective departmental regulations to

foster consistency in access to Federal lands containing potentially valuable minerals deposits, while

acknowledging the differences in each agency’s authorities. The U.S. Forest Service has not updated

or meaningfully amended its mining regulations since 1974. At a minimum, amended regulations

should include consistent requirements and processes for obtaining access to Federal land and

mineral resources, and for obtaining approval to explore or operate on those lands.

6. Provide the BLM and USFS with authority to debar an operator based on past poor performance.

(L)

The IWG encourages Congress to authorize the BLM and USFS to prohibit the issuance or

reissuance of any permit or approval for mineral exploration or production to any entity where

the applicant, the operator, or the owner—or any persons or entities directly controlled by the

applicant, operator, or owner, or any persons or entities that directly control the applicant,

operator, or owner—is in substantial violation of the terms of another mining-related permit or

in substantial violation of any environmental law or regulation or has not achieved cleanup

standards established prior to mining at a mining operation in the United States. The State of

Montana adopted such a law, which may provide a useful template. This requirement would

prevent mining operators that are out of compliance with mining or environmental laws or

regulations from reorganizing and obtaining additional approvals to operate without first resolving

ongoing deficiencies. This requirement would also incentivize prompt action to address

noncompliance issues and limit government liabilities from bad operators using a shell game to

avoid closure and remediation requirements.

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7. Create a new administrative withdrawal process that allows for conditional development. (L)

The IWG believes Congress should establish a new type of administrative withdrawal process, to

be applied consistently to allow both the Secretary of the Interior and the Secretary of Agriculture

to withdraw lands from availability for the location of new mining claims unless the claimant

commits to heightened environmental and cultural resource protection standards. These limited

withdrawal areas could be identified programmatically, as part of periodic individual land use plan

revisions, or as targeted amendments to existing plans. This is different from the current system,

where lands are either open or closed to location and entry under the mining laws, and would

better alert prospective mineral developers to the sensitive nature of certain areas as well as

heightened impact avoidance, minimization, and mitigation requirements. Prospective mineral

developers could then more accurately assess the complexity of the environmental review and

permitting process and develop their exploration and development plans in light of that

complexity.

Congress already tailors withdrawals to provide specific resource protections. For example, the

Central Idaho Wilderness Act of 1980 allowed prospecting, exploration, and development of

cobalt to continue in a portion of the River of No Return Wilderness, but with a provision that

the Secretary of Agriculture “may take all reasonable measures” to ensure that mining or

processing of cobalt “does not significantly impair” bighorn sheep habitat.

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8. Reemphasize the importance of mineral potential reports in land use planning decisions. (P)

One opportunity to expedite permitting without compromising environmental protection

involves a land use planning process that identifies areas with resource conflicts and either

incentivizes avoidance of those areas or encourages voluntary commitments to achieve more

stringent environmental standards. A number of commenters endorsed including mining and

ancillary uses in the land use planning process to provide additional protections for special or

sensitive areas and to allow companies to know in advance what areas may be uniquely difficult

to mine. These endorsements are consistent with the IWG’s recommendation that Congress

authorize the BLM to transition to a leasing system and to integrate leasing and planning.

The IWG encourages the BLM and USFS to more fully consider mineral potential reports and

reasonably foreseeable development scenarios at the outset of land management planning process

(e.g., Forest Plans, and Resource Management Plans). Lands that possess low mineral potential,

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Pub. L. No. 96-312, 94 Stat. 948 (1980). The wilderness area was subsequently renamed the Frank Church River of

No Return Wilderness by Congress.

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where development is not reasonably foreseeable, or where other competing resource values are

incompatible with mineral development should be evaluated for potential withdrawal from

location and entry under the mining laws to prevent the location of claims that are unlikely to

result in mineral production and that may complicate efforts to manage for the full suite of multiple

uses. Where mineral potential is high and commercial development is reasonably foreseeable,

management plans should place greater emphasis on impact avoidance, minimization, and other

mitigation. Fuller consideration of mineral development in the planning process also provides an

opportunity to address ancillary land uses.

9. Ancillary uses and mill sites (L)

As previously mentioned in Section V.A.., the IWG is not making specific policy or regulatory

recommendations regarding ancillary uses or mill sites, but encourages Congress to consider

legislation that would amend the Mining Law to resolve longstanding controversies on these issues.

We also note that addressing ancillary uses through the land management planning process may

provide more certainty to operators who seek to obtain either a permit, lease, right-of-way

authorization, or land exchange in order to secure the right to use Federal lands for ancillary

uses.

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B. Fair Return and Diligent Development

The IWG recommends the following revisions to the 1872 Mining Law and the current claim system

fee structure to promote a fair return to the public for use of Federal lands and the extraction of

publicly owned minerals from those lands. Background relevant to these recommendations can be

found in Section IX of this Report. In the following recommendations, the IWG is providing a menu

of revenue-raising options for Congress to consider, but wants to emphasize that the primary

objective is raising sufficient revenue from the hardrock mining industry to provide a fair return to

taxpayers, address legacy and current hardrock mining impacts on affected communities and the

environment, and to fund efforts to improve the mine permitting process. How that revenue is raised

is of secondary importance. Any one of these options by itself, if structured properly, could raise the

necessary amount of revenue, and multiple ones could be enacted to provide different incentives or

accomplish additional policy goals, such as discouraging speculative claims.

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See Opinion of the Solicitor, Dept. of the Interior, M-37077 Use of Mining Claims for Mine Waste Deposition, and

Rescission of M-37012 and M-37057, May 16, 2023.

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1. Place a royalty on commercial production from mines on Federal lands. (L)

The IWG recommends that Congress enact a royalty for hardrock mineral production from

Federal lands. The IWG is not taking a position on whether such royalties should be placed only

on new mines, on expansions to existing mines, or on all new and existing mines and mining

operations. The IWG does note that there may be significantly more revenue available to improve

permitting, address legacy sites, and share with Tribes, States, counties, and others when this

royalty recommendation is applied to all mines. For administrative simplicity, the IWG

recommends adopting a royalty on net proceeds with a floor of 4 percent and a ceiling of 8

percent, which is within the range of existing State and international hardrock royalty rates. The

IWG recommends that royalties not be fixed at a single value for all minerals but rather be specific

to particular commodities (and possibly the ore grade). Mineral-specific royalties would facilitate

consideration of supply and demand, development costs, and potentially regional differences

between resources, and allow for tailoring incentives to national interests.

2. Congress should increase claim maintenance fees. (L)

The IWG recognizes a serious and pervasive shortfall in resources available for Federal agencies

to conduct the analysis and permitting associated with mineral exploration and development and

to cover legacy mine reclamation needs. The IWG strongly believes that additional support is

needed to improve permitting efficiency and efficacy; to identify, monitor, and remediate legacy

pollution, including acid mine drainage; to support meaningful Tribal and community engagement;

and to address other important mining related needs. We believe that a portion of the revenue

generated by the extraction of minerals from Federal lands should be dedicated to addressing

environmental analysis and permitting expenses, as well as community impacts.

The IWG also recognizes that any revenue from a royalty system, particularly if only applied to

new mines, would take time before becoming significant. Claim maintenance fees, however, are

already being collected and generating revenue to fund the BLM Mining Law Administration

program. As noted earlier, increasing claim maintenance fees would provide multiple benefits.

Administering increased claim maintenance fees would be administratively simple, as the

mechanism for collecting those fees already exists. The IWG therefore strongly encourages

Congress to authorize the DOI to adjust claim maintenance fees in order to incentivize timely

claim development, stabilize funding to support timely and efficient reviews and permitting, and

minimize financial obligations for the American taxpayer.

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3. Create a BLM system whereby claim maintenance fees escalate if no exploration or production

occurs on a claim after a certain period of time. (L)

To further disincentivize the holding of mining claims for speculative purposes and to incentivize

timely development of mineral resources found on Federal lands, the IWG recommends that

Congress provide authority to establish an escalating fee structure that would increase claim

maintenance fees over time unless claimants either conduct notice-level operations or submit an

exploration or mining plan on their claims within a reasonable amount of time following the initial

filing of a claim (e.g., 10–15 years). Any new fee system should be indexed to inflation to prevent

erosion of incentives and agency funding.

4. Congress should create a reclamation fee to generate additional revenue for abandoned hardrock

mine remediation. (L)

The IWG recognizes the urgent need for additional resource support to address hardrock AML

sites, particularly those that impact Tribes and environmental justice communities. Unlike for coal,

where companies pay up to 22.4 cents per ton of coal mined to fund unreclaimed legacy coal

mine sites, there is no similar system for hardrock mining. The Obama administration proposed a

fee of 7 cents per ton of material displaced from hardrock mining, which it estimated would raise

$200 million per year for abandoned hardrock mine reclamation. The IWG encourages Congress

to strongly consider adopting a similar fee on material displaced from hardrock mining. This fee

could be applied in conjunction with other means of funding AML reclamation.

5. Designate uses for additional revenue generated from the above recommendations. (L)

The IWG recommends that Congress redirect receipts from claim maintenance fees in excess of

what BLM uses to fund its Mining Law Administration program, which currently goes into the

Treasury’s General Fund, to support the abandoned hardrock mine land program authorized by

Section 40704 of the Bipartisan Infrastructure Law, which includes grants to States and Tribes. In

addition to funding generated by claim maintenance and/or reclamation fees, the IWG also

recommends that Congress dedicate a portion of revenues from any future royalty system to the

abandoned hardrock mine land program.

If additional revenue is raised through the implementation of claim maintenance fees, royalties, or

other recommendations contained in this report, the IWG recommends that Congress also

consider funding the following programs with that revenue:

 Administration of the USFS Mining Law program;

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 Grants for Tribes and communities to obtain technical assistance, or support technical

reviews during permitting, engagement, and consultations;

 Impact mitigation for Tribes and communities;

 Environmental mitigation efforts;

 State and Tribal historic preservation offices to allow for timely and thorough cultural

resource surveys;

 Federal permit review costs borne by EPA, FWS, NPS, ACHP, and other agencies

involved in proposal and plan reviews;

 Establishment of a permanent fund to address future environmental impacts including

unanticipated events not covered by current financial assurance such as tailings dam

failures; and

 Workforce development grants.

6. Create a Revenue Sharing Program to Help States and Local Governments Address the Impacts

that Result from Hardrock Mineral Development on Federal Lands. (L)

Many Tribes, State, and local governments expressed concern that they often lack the financial

resources to build or expand schools, hospitals, water treatment facilities, and other critical

infrastructure needed to support large mining operations and mine employees. These groups also

identified challenges in hiring and retaining the teachers and other civil servants needed to support

rapidly changing communities. The IWG recognizes the community impacts that can occur when

industrial-scale development comes to an area, in particular rural areas, and recommends that a

share of any revenue received from hardrock mining on Federal lands be returned to the States,

counties, and communities where the revenue was generated in order to fund necessary programs

and infrastructure in communities impacted by mining. The IWG believes that distribution to

States and local governments should occur only after the resource needs noted above are

addressed.

7. Reform the Small Miner Waiver (SMW) program. (L, R)

The DOI OIG, BLM’s cost-benefit analysis, and comments to the IWG all identified significant

administrative costs and uncertain, if any, benefits to the discretionary SMW program. The

Secretary has the discretion to eliminate the SMW altogether, and the IWG recommends that

she either direct BLM to promulgate regulations to that effect or that Congress reform the

program to lower administrative costs and eliminate unintended incentives. The legislative language

establishing the SMW option does not provide the Secretary with discretion to establish lower

claim maintenance fees with no annual assessment work requirement; should Congress wish to

allow for lower claim maintenance fees—for example, a $100 claim maintenance fee in place of

the $100 assessment work requirement—for miners with fewer than a certain number of claims,

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it would need to amend the Mining Law. While a lower claim maintenance fee would not eliminate

the administrative burden, as BLM would still need to confirm that claimholders held fewer than

the maximum number of claims allowed under a reduced-fee program, it would raise additional

revenue and cut down on fraudulent assertions of assessment work.

C. Permitting Process Recommendations

The IWG provides the following recommendations to improve coordination and efficiency during the

NEPA and permitting processes for mineral exploration and mining operations on Federal lands.

Relevant background is in Section VI of this Report.

1. Update and adopt the BLM-NV permitting process model as standard operating procedure

nationwide. (P)

The IWG recommends that the project management process utilized by the BLM Nevada state

office and described in the Mine Permitting chapter be updated consistent with the public

engagement and interagency coordination recommendations made later in this chapter, and that

the updated policy should be made standard operating procedure nationwide for both BLM and

USFS, with modifications made as necessary to ensure consistency with individual State laws and

regulations. The IWG believes that the process should remain voluntary for applicants except for

required pre-application meetings (see below), but that BLM and USFS should strongly encourage

its use.

2. Require BLM and USFS to share baseline reports with EPA, other applicable Federal cooperating

agencies, and Tribal governments when implementing recommendation 1. (P)

Front-end loading of baseline data acquisition and review saves time during the NEPA process by

fostering common understandings and expectations. These, in turn, can support coordinated

actions leading to more efficient and durable decisions. Front-end loading, however, can diminish

the ability of EPA, other NEPA cooperating agencies, and Tribes to provide input into the decision-

making process if all agencies that are likely to have permitting equities are not engaged. The

process would therefore benefit from having more meaningful early engagement with agencies

such as the EPA, FWS, and USACE, as well as Tribes. Front-end loading should address shared

needs for baseline information, technical studies, and management or operating plan submissions

that are key information used to develop an EIS and that support permits that rely on or tier to

that document. For example, the BLM-NV process includes providing baseline reports to local

and State agencies for review but does not necessarily share them with other Federal agencies or

Tribal governments. This can be problematic where another Federal agency wishes to adopt or

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tier to the lead agency’s EIS (such as the USACE in issuing permits under section 404 of the CWA,

or the FWS in consulting under the ESA) but encounters insufficient information in the EIS. The

IWG recommends including EPA, FWS, USACE, other potential cooperating agencies and Tribal

governments in the baseline, technical studies, and management plan review steps to allow early

input on these draft documents that are critical to tiered NEPA analyses.

3. Develop and publicly share and track project schedules. (P)

Schedule transparency can help promote accountability among cooperating or participating

agencies and project proponent, raise awareness of issues that may result in schedule changes,

and reduce conflicts related to unavoidable delays. Schedule transparency can also inform the

public well in advance of potential comment periods, leading to more carefully and clearly drafted

comments. The IWG recommends developing procedures to establish coordinated and

transparent environmental review and permitting schedules. Improved coordination will enhance

NEPA and permitting schedule discipline in situations where the FAST-41 Dashboard is not

utilized. During their review of a mine plan of operations, the BLM and USFS should establish and

publish schedules on their websites. The schedules should identify intermediate process steps and

target dates for each project. BLM and USFS should establish the timeline for NEPA review and

other tiered or related permitting analyses in close coordination with the project applicant and

with any cooperating, consulting, and permitting agencies.

The IWG recognizes that new information or changed conditions may necessitate revisions to

project schedules and that, in many cases, these changes are outside of agency control. When

schedule changes are necessary, the reasons for the changes should be discussed with the project

applicant, cooperating agencies, and consulting Tribes. If a schedule is adjusted, changes should be

posted to the website, and an explanation should be provided. This updating already occurs under

the FAST-41 Dashboard and could improve environmental analysis and permitting efficiency if

utilized more broadly.

4. Develop consistent policy and regulations regarding application information requirements. (R, P)

The IWG recommends that BLM and USFS update and standardize, to the maximum extent

practicable, their guidance and regulations. Harmonized regulations should more clearly state the

information that must be included in exploration plans, mine plans, and related permit applications

and NEPA submissions. Updated regulations should aim for consistency between USFS and BLM

requirements and capture the full suite of information needed to expeditiously review plans for

completeness and prepare for the NEPA and permitting processes.

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The IWG recommends development of guidance documents or checklists that include the

components and anticipated level of detail needed to support the environmental review and

permitting analysis for an exploration plan or mine plan of operations. These documents should

include the reclamation plan and supporting waste rock, tailings, and water management plans;

likely baseline environmental data needs; the types of environmental modeling that should be used

to support predictions of resource changes, including impacts due to climate change; and

information to support alternatives analysis. Ideally, one guidance or checklist document could be

developed describing the information needed to support NEPA analysis for mineral exploration

and mining projects on Federal land for both the USFS and BLM as well as the informational needs

of agencies that will tier their analyses to the NEPA analysis. Such guidance would provide early

information to applicants as they are developing exploration and mine plans and collecting baseline

data, reducing uncertainty for the regulated community. Guidance documents could serve as a

foundation for project-specific guidance following the pre-application meeting process.

The IWG recommends that BLM and USFS require that exploration and mining plans do more

to identify environmental and cultural values that may be impacted and detail steps to be taken to

avoid, minimize, and otherwise mitigate impacts that are unavoidable. Clearer and more consistent

requirements for applications, including the potential use of standardized application forms, would

reduce the burden on industry and agencies, reduce errors and omissions in applications, and

make the review process more efficient. Earlier identification of issues will also facilitate efforts to

avoid, minimize, and otherwise mitigate impacts and reduce timelines, since issues identified later

will invariably require additional evaluation and consultation.

5. Require pre-application meetings. (R)

The GAO identified incomplete and vague plan proposals as the single most significant challenge

negatively impacting the time required to review mine plans and permit applications. Although the

IWG recommends that the BLM Nevada process discussed above remain voluntary for applicants,

we believe that at least one step of that process, pre-application meetings between the applicant

and relevant entities, should be required for all plan submittals. The IWG encourages BLM and

USFS to revise their regulations to require pre-application meetings for certain types of

applications.

Review of a mining proposal and associated permitting and NEPA documents is usually an iterative

process. The level of detail needed in an exploration plan or plan of operations is relative to the

complexity of the proposed operation. The first submission by the operator often gives rise to a

need for more information to clarify or explain details. These additional details become apparent

as the operation becomes more defined. Required pre-application meetings as well as a review of

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a draft proposal will minimize delays in processing the proposal. Improving the quality of mine and

permit application submissions through pre-application meetings and consistent updated policy

and regulations per Recommendation C.4 therefore presents a unique opportunity to accelerate

permitting.

6. Include USACE and EPA in pre-application meetings. (P)

Building on recommendation C.2, which encourages the sharing of baseline data with other

Federal agencies, the IWG recommends that USFS and BLM consistently invite the EPA and

USACE to pre-application meetings, particularly for any project where the BLM or USFS will

require a CWA 404 permit. The USACE frequently has a permitting and NEPA role on mining

projects, and the EPA reviews all Federal agency EISs while exercising regulatory jurisdiction under

the CAA, CWA, and other relevant laws when that jurisdiction has not been delegated to Tribes

and States. Early engagement with EPA and USACE can therefore help facilitate the permit and

environmental review processes. Early engagement can also foster early identification and

resolution of issues that might be more difficult to resolve at later stages of the NEPA or permitting

process.

Furthermore, the USACE has an important review responsibility to ensure compliance with the

CWA 404(b)(1) Guidelines, ensuring that the proposed project is the least environmentally

damaging practicable alternative to the aquatic ecosystem. The USACE often uses NEPA

documents prepared by BLM or USFS to support its CWA 404(b)(1) analysis. EPA also frequently

relies on the NEPA document to inform its CAA and CWA 404 permit application comments.

Therefore, early meetings with USACE and EPA to determine mine plan and baseline data and

analysis needs are particularly important for projects on Federal land that will require permits that

tier to or adopt analysis contained in an EIS.

7. Prioritize plans that maximize best environmental and social practices. (L, R, P)

To the extent allowable by law, the BLM and USFS should prioritize processing applications for

mineral exploration and mining operations that minimize resource impacts, demonstrate

compliance with recognized and accepted voluntary standards and best practices to protect

human health as well as cultural and environmental resources, strive to achieve beneficial reuse of

impacted resources, and demonstrate early and meaningful engagement with Tribes and

potentially affected communities. Engagement could include a demonstrated effort on the part of

the mining company to obtain FPIC from an affected Tribal Nation, providing funding for Tribal

Nations or impacted communities to hire their own technical experts to assist in evaluating

exploration and development plans, commitments to make baseline and environmental

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monitoring data public, demonstrating a certain level of compliance with an existing voluntary

standards framework—such as IRMA, TSM, or another—or adopting other best practices

mentioned in this report.

These kinds of practices help to identify and address potential conflicts early on and build local

community support, reducing the risk of litigation. Prioritizing projects that have developed robust

local support and impact mitigation prior to initiating NEPA or permitting efforts may also reduce

the resources the Federal government needs to expend managing public input.

Other agencies, whether through policy or regulation, should also explore opportunities to

incentivize these kinds of practices. For example, FPISC may want to consider requiring agreed-

upon performance standards as a condition of entry into the FAST-41 process, or the Department

of Defense could condition financial support under the Defense Production Act on adherence to

specified voluntary standards, or DOE could do the same with loan authority. Conditioning Federal

procurement on adherence to best practices, as is done for other products, should also be

explored, as recommended in the E.O. 14017 100-Day Reports.

The IWG encourages Federal agencies involved in international engagement to explore

opportunities to incentivize these kinds of voluntary practices when developing and administering

programs involving international mineral development. Similarly, the United States should use

bilateral and multilateral forums to explore opportunities to encourage foreign nations to

incentivize these kinds of practices (such as through the State Department’s Minerals Security

Partnership).

As mentioned in Section IV, the IWG did not assess which of the available voluntary standards

frameworks best meets the needs for these purposes. The IWG generally supports the adoption

of a standard that is most effective in protecting the entire suite of resources charged to the care

of Federal land and resource managers. At a minimum, third-party assessment of company or

mine performance against selected standards is essential for achieving public trust and allowing

the Federal government to base decisions on the reported level of compliance, with such

assessments being conducted in accordance with international guides and standards for conformity

assessment and being made available to the public.

The IWG also recommends that Congress consider legislation to support agencies to take the

steps discussed above, as well as legislative incentives for companies to engage in these best

permitting, environmental, social, and labor practices.

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8. Incentivize or require social impact and community benefit planning documents. (R, P)

The IWG agrees with commenters who stated that the socioeconomic and community impacts

of mining in the United States are often inadequately analyzed, mitigated, and managed.

Consideration of impacts on and benefits to Tribal Nations and potentially impacted communities

is generally limited to NEPA and NHPA compliance efforts. Engagement on a plan of operations

through either statute is often both too little—in that BLM and the USFS have fewer established

tools for mitigation of social impacts—and too late, in that NEPA analysis generally occurs fairly

late in the mine development cycle, after significant resources have been committed and when

significant changes to operations may be more difficult to implement. The NEPA process is not

triggered by the staking of claims or by many exploration-level activities. By the time the mine plan

of operation has been submitted, multiple opportunities to collect baseline social information and

Indigenous knowledge, maximize benefits, and minimize adverse impacts on Tribes and local

communities may have been lost. Extensive pre-NEPA activity that does not include Tribes and

communities may also artificially restrict the range of viable alternatives. These kinds of lost

opportunities can undermine trust in the proponent, the government, and the regulatory process

while increasing the likelihood that projects are litigated.

The IWG therefore recommends that, as a corollary to the previous recommendation, the BLM

and USFS should provide incentives or require the development of a Stakeholder or Tribal

Engagement Plan, a Social Impact Monitoring and Mitigation Plan, and a Community or Tribal

Benefits Agreement.

9. Require the development of a Climate Change Adaptation Plan. (R)

Environmental conditions at a mine site may change considerably during the operational life of the

mine. Climate change may make these changes more significant. If not appropriately accounted

for, climate change can result in drastic changes to a mine’s water balance, which can adversely

impact operations and waste and water management infrastructure, including tailings

impoundments and water treatment facilities. As stated in one comment letter:

As part of revised regulations for waste, tailings, and processing facilities, the agencies need to

require that proposed operations fully account for future conditions that may result from

climate change… Climate change exacerbates the risks and uncertainties associated with

hardrock mining. The increasing frequency of extreme weather events, changing temperatures,

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and precipitation patterns affect the safety and stability of mining operations and

infrastructure.

294

The IWG agrees and, as such, recommends that the BLM and USFS amend their regulations to

require the submission of a climate change adaptation plan as part of a plan of operations. The

climate change adaptation plan should detail the resilience of the mine project to climate change

and how the operation is prepared to monitor and adapt to foreseeable future climate conditions

at the site—including drought and changes in surface and groundwater levels, changes in the

frequency and intensity of storm events, and extreme heat and cold events—during operations,

reclamation, and post-closure monitoring.

In addition, the IWG recommends that the BLM and USFS evaluate updating risk factors and

assumptions in light of the increasing variability and intensity of storm related events and the

potential for mining-related facilities remain on the landscape for decades, if not centuries. Planning

for a 100-year storm event may, for example, no longer be appropriate in light of increasingly

intense storm events.

10. Improve use of cooperating agencies. (P)

The IWG encourages BLM and USFS to take full advantage of NEPA authorities for using

cooperating agencies. Agencies should invite and encourage potential cooperating agencies,

including States and Tribes, and agencies with regulatory jurisdiction over or special expertise

regarding mining, potential environmental impacts, or other aspects of the mining process, to

attend pre-application meetings. Cooperating agency meetings and cooperating agency input on

preliminary EIS documents, data, and analysis should continue during the NEPA process to

encourage information sharing, early issue identification and resolution, coordination across

parties, and coordination during concurrent or overlapping analyses and permitting processes.

11. Provide more specific procedures for engaging with communities with environmental justice (EJ)

concerns during and outside of the plan approval and NEPA process. (P)

Consistent with E.O. 14096, “Revitalizing Our Nation’s Commitment to Environmental Justice for

All,” which was signed by President Biden on April 21, 2023, the IWG recommends that the BLM

and the USFS review their EJ policies and identify additional specific measures not only for

implementation during the NEPA process but also to expand these EJ procedures to apply before

and outside the NEPA process, including during related permitting actions. Agency guidance should

provide instructions for how meaningful involvement will be accommodated at each step of the

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Supra., note 231

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pre-NEPA/planning, NEPA/permitting, approval, and mine administration (operations and closure)

processes.

The agencies should develop metrics to define the desired outcomes of meaningful engagement

with communities with EJ concerns for mining on Federal lands as well as methods to track

progress towards implementation of this goal. Policies should also ensure the ongoing involvement

of communities with EJ concerns, where applicable, after a mine starts operations.

These policies can include requirements for operators to identify methods for outreach to local

communities in all appropriate languages, to develop plans for regular communications with local

communities throughout approval and operations, and to work with local communities to identify

and address their concerns.

12. Develop more inclusive policies for stakeholder engagement. (P)

As discussed under section VII.B, many communities expressed their belief that narrow definitions

of the term “stakeholder” are used to exclude them from participation. The IWG recommends

that the agencies develop policies to ensure the inclusion of diverse communities during

stakeholder outreach and engagement, including: (a) environmental justice communities; (b)

Justice40 and underserved communities; (c) area residents; and (d) those who rely on or use the

potentially impacted resources.

13. Maintain a forum for interagency Federal mine permitting experts. (P)

With the completion of this report, the IWG has completed its work, but the IWG believes the

interagency, intergovernmental, Tribal, and stakeholder engagement promoted by the IWG should

be continued moving forward through existing interagency efforts. Such a forum would allow for

lesson and information sharing in implementing selected recommendations from this report

(particularly those related to guidance development and interagency coordination) and could act

as a resource for the FPISC when questions arise regarding mining projects requesting inclusion

on, or already included on, the FAST-41 Dashboard.

As an example of similar interagency coordination on mining issues, Federal agencies involved in

activities related to remediating contamination, addressing safety hazards, and minimizing pollution

from abandoned and inactive mining and mineral processing sites (including DOI and its bureaus,

plus USDA, EPA, DOE, USACE, DOL, DOJ, Office of Management and Budget, and others)

regularly meet under the Federal Mining Dialogue to share lessons learned and work through

technical and policy issues pertaining to mine cleanups. The Dialogue has been successful and

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valued by the Federal agencies, and an analogue to the Dialogue could be created to focus on

proposed mines and the mine permitting process.

14. Promote a Circular Economy. (P)

The IWG supports an increased emphasis on policies designed to build and strengthen a circular

economy. “Circular economy” refers to a system of production, use, and eventual disposal that

keeps materials, products, and services in circulation for as long as possible. A circular economy

works by reducing material use, redesigning materials, products, and services to be less resource

intensive, reusing materials to the maximum extent practicable, and recapturing and recycling

waste streams and products as a resource to manufacture new materials and products. Circular

economies demonstrate continuity in our emphasis on reducing negative lifecycle impacts of

processes and materials, including climate impacts, reducing the use of harmful materials,

decoupling material use from economic growth, and meeting society’s needs. Circular economies

also provide economic opportunities for innovative companies and individuals.

The IWG believes that Federal efforts to evaluate impacts that are likely to result from mineral

exploration, production, processing, and refining, or reclamation—including decisions to authorize

or support mineral exploration, production, processing and refining, or reclamation—should aim

to minimize waste, including the generation of waste and byproducts requiring treatment and

disposal; advance pollution prevention; support requirements to recycle and markets for recycled

products; and promote a transition to a circular economy. The IWG encourages Congress and

Federal agencies to adopt policies that promote a circular economy, and to evaluate the extent

to which actions that are authorized, funded, or carried out by the Federal government promote

a circular economy.

D. Increasing Transparency

As discussed in Section VII of this Report, much of the effort that occurs from the acquisition of

mineral rights, through exploration, development of the mine plan of operation, mining, and

reclamation occurs outside of public view. The IWG developed the following recommendations to

improve public information sharing and engagement throughout the entire lifecycle of a mine to

maintain and build trust in the government’s oversight of mines developed, operated, and remediated

on Federal land. The IWG believes that early engagement and information sharing will lead to faster

and better decisions that are less likely to result in litigation.

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1. Create a Mining and Mine Permitting Presentation or Guide to improve public understanding of

mining and the mine approval/NEPA/permitting process, and post on applicable agency websites.

(P)

During an IWG listening session, one mining company noted that it is far more effective to bring

communities along and keep them informed rather than engage only at key points in the NEPA

process. As the company noted, the need for ongoing public engagement is particularly important

when project milestones are months or even years apart. Building public knowledge of mining and

mine permitting will help support meaningful public engagement by educating the public early and

helping support and focus the public when they are involved in engagement opportunities on

specific projects. The BLM and USFS websites include links to laws, regulations, and policy papers.

However, neither provides an explanation or informational material about what exploration or

mining involve, the mineral operations approval process, Federal versus State agency roles, or how

the public can be involved. Informational materials should be prepared, ideally jointly between the

agencies, explaining mining (process, impacts, and benefits), and these explanatory documents

should be added to the BLM and USFS websites. This could be a PowerPoint, a series of pre-

recorded webinars, or something like the Citizens Guide to NEPA,

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or the ACHP’s Citizen’s

Guide to Section 106 Review,

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but for mining operations. The Washington State Governor’s

Office for Regulatory Innovation & Assistance has developed multiple permitting schematics that

clearly describe analytical and permitting processes and opportunities for public engagement.

These schematics may provide a valuable model for helping agencies educate the public about

complex review processes and for communities to understand and navigate complex processes.

297

The BLM oil and gas “gold book” of surface operating standards and guidelines for oil and gas

exploration and development has also been suggested as a potential model that may be worth

replicating for hardrock mining.

298

295

White House Council on Environmental Quality, “Citizen's Guide to the National Environmental Policy Act,” Jan.

2021.

https://ceq.doe.gov/get-involved/citizens_guide_to_nepa.html.

296

Advisory Council on Historic Preservation, Protecting Historic Properties:

a Citizen’s Guide to Section 106 Review, no date, www.achp.gov/sites/default/files/documents/2017-01/CitizenGuide.pdf.

297

Washington Governor’s Office for Regulatory, Innovation, and Assistance, “Environmental Permit Schematics:

Visualize the Permit Process.” https://www.oria.wa.gov/site/alias__oria/405/environmental-permit-schematics.aspx.

298

Bureau of Land Management & U.S. Forest Service, “Surface Operating Standards and Guidelines for Oil and Gas

Exploration and Development,” 2007. https://www.blm.gov/sites/blm.gov/files/Gold%20Book%202007%20Revised.pdf.

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2. Develop a user-friendly website that enables the public to easily see and identify all proposed,

operating, reclaimed, and unreclaimed mineral exploration and production operations in a given

area. (P)

Both the BLM and USFS’s websites provide expert users access to a great deal of information on

mining. However, those websites are not intuitive, and the information they provide is often

difficult, if not impossible, for casual users to access and use.

The IWG recommends establishing a website to serve as a single point of contact for compiling

and disseminating public information on mining operations, including notice-level operations, and

to provide a way for people to receive notice when mining related notices or plans are received

in a given geographic area. Activity-specific information should be entered when a notice or plan

of operation is received, including the permitting schedule. Similar to the tracking of infrastructure

projects under FAST-41, changes to the schedule should be published, and the reason for delays

should be recorded and explained.

For operating mines, the website could include the current mine operating plans, including

supplemental reports, the reclamation plan, financial assurance information, mineral production

data, environmental monitoring data (such as air and water quality), and environmental metrics

(such as amounts and compositions of waste rock, wastewater, gas and dust discharges and

emissions, land disturbance, and other relevant indicators) in an easily understood, machine-

readable format. The website should be continually updated to reflect updated plans, inspection

dates, and findings. Additional data layers, such as habitats for ESA-listed and other high-interest

species, mineral withdrawals and other special land designations, agency jurisdictional boundaries,

and more, could also significantly aid in providing context and valuable information to the public.

This website must include appropriate protections for proprietary information.

Federal agencies have insufficient resources to catalog all abandoned mines on public lands. If funds

were made available, mapping abandoned and legacy operations, with appropriate protections for

public safety, could provide operators with an opportunity to co-locate and site new development

on brownfields, reducing impact and offering an opportunity for remediation. In addition, mapping

could help Good Samaritans and others prioritize reclamation efforts.

3. Amend Interior and USFS regulations to expand notice level (and exploration and mine plan)

review time and notification requirements. (R, P)

The IWG believes that the current processes for notice-level operations provide inadequate public

notice and opportunity for comment or engagement. Notice-level operations can create or

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exacerbate conflict because these operations are not subject to NEPA, and therefore not noticed

to the public through existing NEPA processes. Potentially affected parties may therefore only

learn of these operations when they see activity commence. A number of comments suggested

that it would be useful to make notices more accessible to the public and to extend the time the

BLM has to review notices from 15 days to 30 days. Environmental groups strongly support ending

notice-level operations altogether, given they are not subject to NEPA or NHPA consultation

requirements.

The IWG recommends that the BLM extend the time for review of exploration notices from 15

days to 30 days and that, upon receiving an exploration notice, it inform potentially impacted

Tribes and communities of the pending action. The 30-day period would allow greater

opportunities for engagement, issue identification, impact reduction, and mitigation development.

BLM should also extend the review time for the mine plan of operations to 60 days. Existing time

periods are extremely short in the context of the whole mine permitting timeline, yet they provide

important opportunities to identify and mitigate issues and concerns that could cause lengthy

delays later if not addressed proactively.

The IWG also recommends that the USFS amend its regulations to require bonds and reclamation

plans for notice level activities that do not cause significant surface disturbance, and allow more

of those projects to move forward without needing plans of operation. We also suggest that the

USFS require public and Tribal notification of all non-casual-use applications received, regardless

of size or disturbance level, in a manner similar to the recommendation to BLM on notices.

4. Make compliance performance records available to the public. (P)

Incentivizing conscientious mineral development activities can provide a useful complement to

regulatory action. The IWG believes that the compliance record of any entity with significant

involvement in mineral exploration, production, processing, upgrading, site reclamation, or other

components of mining operations should be available to regulatory agencies, Tribal governments,

State and local governments, local communities, and the public at large as exploration and

development proposals are being considered and after operations commence. This information

should be included as part of the public mineral website referenced above, and links should be

provided to the applicable regulatory agency where compliance information can be obtained.

Mining operations are also associated with other permits, such as those for water use, water

discharge, water disposal, and hazardous waste disposal. Having all the information linked and in

one place would provide a comprehensive view of a project.

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E. Tribal Recommendations

The IWG developed a number of recommendations to improve Tribal engagement and consultation

for mining projects on Federal land. Background relevant to these recommendations is in Section VIII

of this Report.

1. Enact legislation to require meaningful, robust, and early consultation between the Federal

government and Tribal governments. (L)

Congress should enact legislation that establishes clear legal standards for consultation on all

infrastructure projects, but in the case of mining, it should at minimum:

a. Require adherence to consultation practices—such as those outlined in E.O. 13175, the

White House Memorandum on Uniform Standards for Tribal Consultation, and DOI’s

Tribal Consultation policy and procedures—for agency actions on hardrock mining

proposals that may have Tribal implications;

b. Include consensual mechanisms or a consensus-seeking model for developing regulations

that relate to Tribal self-government, Tribal trust resources, or Tribal Treaty and other

rights that apply to Federal government actions regarding mining with Tribal implications,

whether on Indian land or not, and the full range of impacts from such actions;

c. Require agencies to make good-faith efforts to invite Tribes to consult early in the planning

process and throughout the decision-making process and engage in robust, interactive,

pre-decisional, informative, and transparent consultation when planning actions on

hardrock mining with Tribal implications;

d. Strengthen measures to prevent or discourage agency failure to conduct proper formal

consultations with Tribes on agency actions with Tribal implications, including, but not

limited to consultations under the NHPA, Native American Graves Protection and

Repatriation Act, Archaeological Resources Protection Act, and NEPA; and

e. Provide exemptions from disclosure under Freedom of Information Act requests to

protect sensitive, specific information on burial or religious locations that contain human

remains or objects, or on sacred sites; to prevent grave-robbing, vandalism, and other

disturbances on religious or sacred sites; and to protect Indigenous Knowledge that is

shared with Federal agencies during the planning, environmental review, and permitting

processes.

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2. Improve Agency Consultation Procedures and Training. (P)

Federal agencies with permitting authority over any aspect of hardrock mineral exploration or

mining—whether on or off Federal lands—should develop Tribal consultation policies and training

on those policies consistent with the November 30, 2022 Presidential Memorandum on Uniform

Standards for Tribal Consultation.

Consultation policies should require government-to-government consultations on potential

hardrock mining impacts on off-reservation treaty reserved rights, subsistence rights, sacred and

cultural resources, including submerged sites, and use of Indigenous Knowledge during the mine

permitting and NEPA processes.

But these processes will not be fully effective until training is robust and regular and there are

sufficient resources for staff to understand best practices and implement those actions. Having

stand-alone Tribal consultation offices at BLM and the USFS will be key to successfully integrating

these actions.

3. Provide adequate resources for Tribal consultation. (L)

The IWG recommends that Congress ensure that Federal agencies have adequate resources to

carry out Tribal consultation obligations and establish a program to provide funding to Tribal

governments to allow those governments to more meaningfully engage in consultations and to

reimburse costs incurred by Tribal governments during consultations. Some examples of this

practice that could be built upon include FIPSC providing resources to Tribes to facilitate

consultation on FAST-41 projects

299

and EPA providing funding for communities looking to

intervene in superfund cases.

300

4. Issue new policy guidance on NHPA implementation. (P)

The IWG recommends that the BLM and USFS issue policy guidance on NHPA with more specific

language on the importance of individual Tribes’ cultural heritage resources and the impacts of

their loss, as well as details about existing Treaties, such as the information found on the Tribal

Treaty Database.

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As one commenter indicated, “to know one tribe is to know only one tribe.”

299

Permitting Council Press Office, “Federally Recognized Tribes Receive Groundbreaking Investment to Aid in FAST-41

Covered Infrastructure Project Permitting Reviews,” Dec. 2022. https://www.permits.performance.gov/fpisc-

content/federally-recognized-tribes-receive-groundbreaking-investment-aid-fast-41-covered.

300

U.S. Environmental Protection Agency, https://www.epa.gov/superfund/technical-assistance-grant-tag-program.

301

Oklahoma State University Libraries, https://treaties.okstate.edu/.

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Much of the existing guidance does not effectively reference the different cultures of different

Tribes. Application of this new policy guidance would create an increased sense of awareness of

the diversity of different Tribal Nations, even within the same affected areas. New policy guidance

that is more specific to individual Tribes can enhance awareness about a Tribe’s treaty and

reserved rights, which can include potential rights to access, hunt, fish, gather, and practice their

culture in a specific area, among other things, and lead to new commitments to providing the

statutorily required technical and financial assistance opportunities that Tribes can use to expand

their historic preservation programs. This will facilitate information sharing between Tribes and

the Federal government regarding cultural resources, so future consultations can run more

efficiently.

Current funding is insufficient to assist Tribes in their efforts to support the implementation of

the NHPA. In addition to increasing funding for federal agencies specific to reimbursing Tribes for

their expertise and the costs incurred for helping federal agencies carry out 106 responsibilities,

Congress should increase Historic Preservation Fund funding for Tribal Historic Preservation

Offices to ensure important areas are identified in advance and avoided. Congress should also

make funding available to Tribes that are not eligible to have or who otherwise do not have a

Tribal Historic Preservation agreement with the NPS. Tribes must have land in trust or a

reservation in order to be eligible for annual Historic Preservation Fund resources to support

their Tribal Historic Preservation Officer. Today, under half of federally recognized Tribes have

such an agreement but still maintain the same role in the Section 106 process reviewing

undertakings off of current Indian lands.

5. Provide additional protections for Tribal cultural sites, sacred sites, and resources. (L, R)

The IWG recommends that Congress create statutory incentives encouraging mining interests to

make sincere and meaningful efforts to obtain Tribal concurrence or support before undertaking

exploration or production projects that may significantly impact Tribal cultural and sacred sites. In

instances where Indian Tribes are consulted and the Tribe does not consent, the withheld consent

should be documented, and Federal agencies should consider imposing additional stipulations or

conditions to ensure that, to the maximum extent possible, the mining operator mitigates adverse

effects, if any, on the Indian lands and resources.

The IWG also recommends that BLM and the USFS consider adding protections in their mining

regulations specific to Tribal sites and resources, such as including a new performance standard at

43 C.F.R. § 3809.420 (BLM) and 36 C.F.R. § 228.8 (USFS).

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6. Develop a system for automatic Tribal notification when notices or plans are proposed in an area

of Tribal interest. (P)

The IWG recommends that the BLM and USFS develop a system analogous to the Federal

Communication Commission’s Tower Construction Notification System, which alerts Tribes

when companies propose to erect a communications tower on land of interest to that Tribe.

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This system allows Tribes to confidentially indicate areas of geographic interest and then receive

notifications when a communications tower is proposed for those areas. In the context of mineral

exploration and mining, Tribes would be notified when notices or plans are received in an area

identified as posing interest to a Tribe. Tribes should be engaged in the development of this system

to ensure that it meets Tribal needs and provides adequate safeguards for confidential Tribal

information. The National Association of Tribal Historic Preservation Officers is currently working

on a database that includes some of this functionality, and the IWG encourages the Federal

government to engage more closely with this Tribally-led effort to determine if it can provide

lessons or a foundation for additional Federal efforts.

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The IWG notes that this system could be useful across numerous infrastructure and permitting

applications—far beyond communications towers and mining operations—and encourages

engagement with other relevant agencies in its development.

7. Require exploration plans instead of notices when operations would impact Tribal resources or

treaty rights, listed species, etc. (R).

The IWG recommends that the BLM and USFS update the types of activities and impacts that do

not qualify for notice-level operations to include activities that impact Indian Tribes or resources

reserved by treaties with those Tribes, require a CWA permit, impact Federally protected species

or designated critical habitat, or may impact sites that are listed on or eligible for listing under the

NHPA, including sites of religious or cultural significance to Tribes. That level of impact should

require the submission of an exploration plan or plan of operations.

8. Incorporate Indigenous Knowledge (IK) during the environmental and permitting review for an

exploration plan, mine plan of operations, or associated permit (P).

The IWG recommends that the BLM and the USFS issue guidance to ensure that IK is consistently

included and considered, as appropriate, in decision making, in line with the November 30, 2022

302

“Tower Construction Notifications.” https://www.fcc.gov/wireless/systems-utilities/tower-construction-

notifications/tower-construction-notifications-0.

303

National Ass’n of Tribal Historic Preservation Officers, Land Area & Name Directory, https://www.nathpo.org/land-

approach/.

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OSTP/CEQ memo. This guidance should articulate how potentially sensitive IK is to be collected,

treated, and protected, as appropriate, through consultation, environmental review, historic

preservation review, and permitting processes.

9. Invite Tribes to participate as cooperating agencies in the NEPA process. (P)

The IWG recommends that Federal agencies encourage the inclusion of Tribes with a current or

historical presence or interest in potentially impacted areas as cooperating agencies during the

NEPA process. This recommendation is in addition to engaging with all impacted Tribal entities in

fulfillment of consultation obligations.

10. Include Tribes in pre-application meetings, and allow Tribes to review baseline information in

updating and expanding the BLM Nevada permitting process. (P)

Elsewhere in this report, the IWG recommends broader adoption of the Nevada BLM’s approach

to mineral development permitting. The BLM Nevada process, however, does not specify that

baseline information should be shared with Tribes. The IWG recommends that in updating and

nationalizing this process (recommendation C.1), the BLM and USFS encourage potentially

impacted Tribes to provide baseline information, including IK, and review draft baseline data that

Tribes have an interest in before the baseline data is finalized. That will help ensure that baseline

data includes IK and information important to Tribes and Tribal resources to support meaningful

analysis of impacts on Tribes during the NEPA process.

11. Include Tribes in the determination of appropriate financial assurance levels and post-mining land

use. (R)

The IWG recommends that, in areas where Tribes or the Federal agency identify cultural or

subsistence resources connected to any Tribe, the appropriate agency should make every effort

to include those Tribes in discussions about desired post-mining land uses. The IWG recommends

that these discussions occur during the NEPA process as well as during reclamation plan updates,

and that discussions give Tribal Governments an opportunity to provide meaningful input into the

adequacy of reclamation plans. Reclamation plans and financial assurance amounts for all mines

should also be made easily available to the public (see recommendation D.2). The IRMA Standard

requires similar engagement on reclamation plans and financial assurance levels with all potentially

affected communities and interested stakeholders.

304

Initiative for Responsible Mining Assurance, IRMA Standard Chapter 2.6.2.5 and 2.6.4.5., “Planning and Financing

Reclamation and Closure.” June 2018, pp. 72-73. https://responsiblemining.net/wp-

content/uploads/2018/07/IRMA_STANDARD_v.1.0_FINAL_2018-1.pdf.

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12. Provide funding to Tribal Governments to allow them to more effectively engage in reviews of

mining proposals and shared monitoring of operating mines. (L, P)

The IWG supports providing appropriated funding to allow Tribes to attend meetings, retain

technical experts, review mine plans, conduct studies, produce reports, and more. This will

strengthen Tribes’ capacity to participate in the NEPA and permitting processes during

consultation and as a cooperating agency. Canada’s Indigenous Natural Resource Partnerships

Program is a model that Congress can consider replicating domestically. Another potential model

Congress could explore for providing community support is the Technical Assistance Grant

program under CERCLA. Although that program is not used to meet the goals of this action and

is for sites that are already contaminated, not for proposed operations, the precedent and

mechanism are valuable to consider.

The IWG also recommends that Federal agencies use existing authorities to provide funding or

technical assistance to Tribes for the same purposes. One positive effort is the recent

announcement by FPISC that it will set aside $5 million for Federally recognized Tribes to enhance

Tribal engagement in the permitting review and authorization process for FAST-41-covered

projects.

305

If successful, this and other efforts should be expanded in both the amount of funding,

and the scale and scope of projects covered.

The IWG also encourages operators to provide financial assistance to impacted Tribes and

communities for the review of plans and oversight of mining operations. Assistance should be

provided without effecting the conclusions made or positions taken by any Tribe. This is a

component of the IRMA Standard,

306

a commitment of ICMM member companies,

307

and is taking

place at certain mines in the U.S., such as with the Community Environmental Monitoring Program

funded by Eagle Mine.

308

305

Supra., note 300

306

Initiative for Responsible Mining Assurance, IRMA Standard Chapter, 1.2.3., “Community and Stakeholder Engagement

Requirements Strengthening Capacity,” June 2018, pp. 22. https://responsiblemining.net/wp-

content/uploads/2018/07/IRMA_STANDARD_v.1.0_FINAL_2018-1.pdf.

307

ICMM Indigenous Peoples and Mining Position Statement, Commitment 3 (“Where required, support should be

provided to build community capacity for good faith negotiation on an equitable basis.”).

308

Supra., note 191

125

13. Encourage additional Federal and private sector support for Tribally-led assistance organizations.

(L, P)

Direct government or proponent assistance to Tribes to cover consultation or technical review

costs is only a start. The IWG believes that greater trust and larger and more durable benefits can

be achieved through the growth of independent Tribally-led organizations that advocate for and

provide assistance to Tribes that are confronted with mining proposals that may impact their

lands, resources, practices, or rights.

One example of such an organization, the FNMPC (described in more detail in section VIII.D),

seeks to assist Canadian First Nations obtain equity stakes in mining projects, a model the IWG

believes should be encouraged in the United States, when desired by Tribes, as a way to ensure

that financial benefits from mining projects also flow to impacted Tribes in a more significant and

durable way than through Tribal Benefit Agreements. Other Tribally-led organizations focused on

providing technical and financial resources to U.S. Tribes include the First Nations Development

Institute,

309

the Tribal Lands Assistance Center,

310

and The MICA Group,

311

and the IWG believes

that organizations and efforts such as these should be encouraged.

The IWG believes that the fact that these organizations are Tribally-led is key to their credibility

and effectiveness, and that they perform a role that cannot be replicated by the Federal

government, despite the tremendous value and importance of Federal Tribal assistance efforts.

The IWG encourages Federal agencies, Congress, mining companies, philanthropies, and others

to—when and as appropriate—partner with, provide support for, or encourage the development

of such organizations.

F. Operational Standards

The IWG has several recommendations for updating operational standards in BLM and USFS

regulations to promote national consistency for mining on Federal lands, provide clarity to the mining

industry, and incorporate best practices for the protection of surface resources. Section IV.B. of this

Report provides relevant background.

309

First Nations Development Institute, https://www.firstnations.org/.

310

Tribal Lands Assistance Center, https://triballands.org/.

311

The MICA Group, https://micagroup.org/.

126

1. Require adherence to the Global Industry Standard on Tailings Management (GISTM). (R)

Many companies, including all members of the ICMM, adhere to the Global Industry Standard on

Tailings Management (GISTM) or other standards for tailings management, and the IWG agrees

with the industry comment letter that stated, “The application of the [GISTM] would substantially

improve the management standards across the industry for tailings in the U.S.”

312

Because of the

devastating impacts that can occur from tailings dam failures and other incidents that may occur

during operations or reclamation, and because many tailings dams require maintenance and

monitoring in perpetuity, the IWG recommends that BLM and USFS require that mining

operations on federal land, at a minimum, comply with the GISTM and develop tailings

management plans that incorporate best practices for operation and closure, conduct risk and

failure assessments for tailings dams, and require independent engineering review of tailings

facilities during design, operations, and closure. The IWG recommends that BLM and USFS update

their requirements for tailings operations and performance standards to require these and other

best practices to promote the highest level of protection against tailings incidents that could

significantly impact surface resources and downstream resources, including Tribes and

communities.

2. Improve the standard of care and provide consistency in Interior and USFS regulations. (R)

The IWG recommends that the BLM and USFS review their mine plan of operation requirements

(see also recommendation C.4) and performance standards and modernize those standards and

requirements for consistency across agencies. Updated requirements and standards should take

into account current best regulatory practices for water, waste, and tailings management,

environmental restoration by qualified persons, and also include climate change considerations

(see also recommendation C.8). This can be done by modernizing the USFS Mining Regulations,

which were last substantially updated in 1974. BLM should consider more narrow updates to its

mining regulations to take into account best practices since they were last updated in 2000.

In addition, there are areas where the performance standards could be made clearer. For example,

the USFS’s general standards for mitigation are vague and may be applied inconsistently. Greater

protection could be achieved by adopting consistent protective requirements across both

agencies. The BLM requires operators to “take mitigation measures specified by BLM to protect

public lands,” while the USFS requires that operations minimize adverse impacts to the extent

feasible. The BLM requires concurrent reclamation and requires source control as a preference

for managing acid-forming, toxic, or other deleterious materials. The USFS requires reclamation

312

BHP Corporation’s Response to Request for Information to Inform IWG on Mining Regulations, Laws, and

Permitting, 2022.

127

upon the earliest practicable time during operations, or within one year of the conclusion of

operations, including isolation, removal, or control of toxic materials. One mining company

commented that adherence to the Global Acid Rock Drainage Guide to minimize acid mine

drainage could provide additional environmental protections.

313

Specifically, the IWG recommends that the BLM and USFS update their regulatory definitions and

standards, consistent with their applicable authorities, to include additional specifications as to

what qualifies as UUD or significant disturbances.

3. Improve enforcement resources, authorities, and tools. (L)

Several commenters identified a need for improved inspection and enforcement of hardrock

mining operations to ensure compliance with existing environmental standards and reclamation

goals. Other comments highlighted the need for the BLM and USFS to increase the numbers of

mineral professionals, principally to increase capacity for permit processing but also to ensure

proper inspection and monitoring of operations. One comment advocated for BLM and the USFS

to establish “document control systems” to contain all documents related to a mining operation,

including inspection, monitoring, and enforcement documents, and to make this information

publicly available so that the public has awareness of the compliance of mining operations and

impacts on Federal lands; this was also discussed at recommendation D.4.

The 1999 National Research Council report recommended that Federal land managers in the

BLM and USFS should have both: (1) authority to issue administrative penalties for violations of

their regulatory requirements, subject to appropriate due process, and (2) clear procedures for

referring activities to other Federal and State agencies for enforcement. The Council’s report

stated that more consistent and accessible procedures for deciding when to refer apparent

violations to other agencies and the ability to issue reasonable administrative penalties, subject to

appropriate due process, would improve the efficiency of agency operations and enhance the

protection of the environment.

Interior amended its regulations in 2000 to provide for administrative penalties. However, a

subsequent review led to BLM removing the civil penalty provisions from its regulations in 2001.

The IWG believes Congress should grant BLM and USFS unambiguous authority to administer

civil penalties to improve and assist in effective enforcement of operational standards.

313

Albemarle Corporation’s Response to Request for Information to Inform IWG on Mining Regulations, Laws, and

Permitting, 2022.

128

G. Mine Closure & Closed Mines

All mines, at some point, will close. Having a science-based reclamation and closure plan in place paired

with sufficient financial assurances will build trust that mining can be conducted safely and effectively

and the landscape properly restored at the end of operations. However, widespread legacy

contamination exists despite extensive remediation efforts by the EPA, other Federal agencies, and

State agencies. Reclamation and remediation can be difficult and take long periods of time, particularly

in the absence of adequate resources to address sites where no responsible parties remain. As

mentioned above (Recommendation C.13), Federal agencies meet regularly at a national level to

leverage expertise, coordinate, and share experiences to more efficiently prioritize and remediate

mine sites on Federal lands. However, there are an extensive number of abandoned mine sites on

Federal lands, far more than current Federal agency resources can address. Further information

regarding estimated numbers of AML and environmental impacts from mining can be found in the

March 2020 GAO Report: Abandoned Hardrock Mines: Information on Number of Mines, Expenditures,

and Factors that Limit Efforts to Address Hazards.

314

1. Enact Good Samaritan protections. (L)

Federal agencies lack the resources needed to address the multi-billion-dollar liability created by

legacy abandoned mines. Inadequate Federal funding makes cooperation with Tribes, States,

industry, and NGOs critical to addressing sometimes severe and ongoing hazards. EPA has

developed Good Samaritan policies and tools to reduce barriers under CERCLA for Good

Samaritans to clean up abandoned hard rock mines. However, even with this extensive guidance

and administrative direction, many NGOs and companies are not interested in engaging in

reclamation without legislation to clarify liability for potential mine discharge during or after

reclamation. Good Samaritan treatment of ongoing mine discharges was identified as a promising

opportunity by the GAO, as well as a wide range of groups commenting to the IWG, ranging

from environmental organizations to State governments to the mining industry itself.

315

As the

GAO explained:

Good Samaritans have avoided taking certain cleanup actions—in particular, addressing

mine tunnels that perpetually drain highly contaminated water—at abandoned

hardrock mines because they are concerned about potentially being held legally

responsible under CERCLA [the Comprehensive Environmental Response,

Compensation, and Liability Act or Superfund] and the CWA. Specifically, a Good

Samaritan undertaking cleanup actions at an abandoned hardrock mine might become

314

Supra., note 10, p. 1.

315

Id.

129

a responsible party under CERCLA and thereby would be responsible for the entire

cost of cleaning up the site…. Colorado and Montana state officials and various

stakeholders said they generally decide not to undertake such projects, even if they

could make incremental improvements, because of the risk of being held responsible

for meeting and maintaining water quality standards in perpetuity.

316

As one industry association noted, “[t]hese liability concerns affect numerous stakeholders—local

communities, conservation groups like Trout Unlimited, and mining companies alike.”

317

The IWG recommends that Congress enact Good Samaritan legislation, limiting liability for non-

responsible parties who seek to characterize, assess, and cleanup abandoned mine sites, subject

to appropriate safeguards. Good Samaritan laws should provide for public review and comment

on remediation proposals, exclude entities that were previously involved in operations at the

contaminated site, prevent liability waivers from being provided for operations that are not related

to addressing the legacy site, and require Tribal consultation on any proposals that could impact

Tribal lands or resources. The IWG agencies are willing to work with Congress to ensure that

any legislation maximizes intended benefits while not creating unintended impacts or conflicts with

other laws and regulations.

2. Encourage remining and reprocessing of previously disturbed sites. (L, P)

The IWG recognizes that, in addition to acting as Good Samaritans, mining companies may seek

to conduct operations on previously mined sites in order to conduct profitable activities, such as

reprocessing waste rock or mill tailings to capture valuable minerals. As an industry commentor

explained, “[s]ome historic, pre-regulation mine sites still contain mineral resources…. Modern

mining at a historic site creates an important opportunity to integrate the cleanup and remediation

of historic, un-reclaimed mine features into a modern mine designed to protect the environment

and achieve conservation objectives.”

318

Where operations would occur on abandoned mine lands, remining or reprocessing may present

an opportunity to address existing contamination and ongoing pollution discharges. If there is

potential for recovering valuable materials, interested parties should work with appropriate

regulators to evaluate legal options, such as Bona Fide Purchaser Agreements or State Voluntary

Cleanup Programs, to conduct cleanups. Some Federal support for reprocessing is already

occurring. For example, the USGS has made BIL funding available for States to identify and

316

Id.

317

Supra., note 109

318

Id.; See also, Supra., note 181

130

characterize mine waste sites for the USGS mine waste inventory,

319

and DOE recently announced

$16 million to build a refinery for critical minerals extracted from acid mine drainage,

320

building

on DOE’s pre-existing research support for such efforts.

321

The IWG recommends that BLM, USGS, OSMRE, USFS, DOE, EPA, and other relevant agencies

investigate any regulatory or other barriers to more widespread reprocessing of mine waste in

situations where there is the potential for positive environmental outcomes coupled with

enhanced recovery of needed minerals. Congress should consider legislation to reduce barriers

that cannot be addressed administratively, provided sufficient safeguards are included to ensure

local communities are engaged in the development of reprocessing proposals and positive

environmental outcomes are achieved. As comments also noted, re-mining should only be an

option available to companies that were not involved in prior mining activity at that site.

3. Prohibit mine operations that would result in the need for perpetual water treatment. (L)

The IWG recommends that Congress prohibit any new mine operation that is likely to require

perpetual treatment of water relating to any aspect of mining operations, except under certain

narrow circumstances, such as those allowed by the IRMA Standard.

322

Such a statute would align

with requirements adopted by Colorado

323

and New Mexico

324

allowing for operations that

require perpetual treatment in only limited circumstances. Avoiding perpetual water treatment

obligations would further both agencies multiple-use and sustained-yield mandates, dramatically

decrease the risk of UUD, and reduce potential future public financial liability for perpetual mining-

related releases.

319

U.S. Geologic Survey, “USGS makes $5 million available from the Bipartisan infrastructure Law for mine waste

research,”

February 14, 2023. https://www.usgs.gov/news/national-news-release/usgs-makes-5-million-available-bipartisan-

infrastructure-law-mine-waste.

320

U.S. Department of Energy, “Biden-Harris Administration Invests $16 Million to Build America’s First-Of-A-Kind

Critical Minerals Production Facility,” April 4, 2023. https://www.energy.gov/articles/biden-harris-administration-invests-

16-million-build-americas-first-kind-critical-minerals

321

See, for example, U.S. Department of Energy, “DOE Awards $19 Million for Initiatives to Produce Rare Earth

Elements and Critical Minerals,” April 29, 2021.

322

Initiative for Responsible Mining Assurance, “IRMA Planning and Financing Reclamation and Closure” in IRMA Standard

for Responsible Mining. June, 2018, Chapter 2.6.6., pp. 69. https://responsiblemining.net/wp-

content/uploads/2018/08/Chapter_2.6_ReclamationClosure.pdf.

323

Colorado HB19-1113 - Protect Water Quality Adverse Mining Impacts.

324

New Mexico Mining Act at Chapter 69 - Mines, Article 36 Section 69-36-12-B.

131

4. Strengthen review of mines left in extended non-operating status. (R, P)

Numerous commenters urged Federal action on mines that remain in non-producing status for

an extended period. The 1999 National Research Council report recommended that the BLM

and USFS “adopt consistent regulations that a) define the conditions under which mines will be

considered to be temporarily closed; b) require that interim management plans be submitted for

such periods; and c) define the conditions under which temporary closure becomes permanent

and all reclamation and closure requirements must be completed.”

325

The BLM has regulations

requiring review of operations that have been inactive for 5 years, but the USFS does not, and

commenters stated that BLM has been inconsistent in how it implements its regulations. The IWG

recommends that both agencies update their regulations and practices as needed to provide for

regular review of mines placed in non-producing status, ensure that interim management plans

are being followed as intended, and consider requiring companies to update plans of operation

after a certain period. The IWG also recommends that financial assurances be evaluated and

adjusted, as appropriate, to ensure that sufficient funds are available to cover reclamation costs

should non-producing operations fail to return to production.

5. Enact reforms to financial assurances laws. (L)

The IWG recommends that Congress address the following shortcomings of current financial

assurance requirements through legislation:

(a) Bankruptcy exception for reclamation bonding and trusts.

Currently, many courts hold up the disbursement of financial assurance while bankruptcy

proceedings are ongoing. The government expends significant time and resources ensuring

courts honor the nature of the financial assurance instruments and that those funds remain

available to complete the reclamation when companies declare bankruptcy. The IWG

recommends that Congress expressly exempt financial assurance bonds or trusts for

reclamation and other government-required environmental work from bankruptcy to limit

the time and effort agencies spend in litigation, to prevent the lengthy delays that can occur

in beginning reclamation when funds are tied up in litigation, and to minimize the risk that

reclamation obligations will fall on the shoulders of the American taxpayer. This should not

be done just for mines but for all environmental remediation, including oil, gas, RCRA, and

CERLCA financial assurances.

(b) Tax umbrella or exemption.

325

Supra., note 55, p. 8.

132

Mine operations frequently use long-term financial mechanisms (LTFMs) to cover the cost of

post-mine closure requirements, such as long-term water treatment. An LTFM is designed to

generate annual interest that covers capital and operating expenditures for continued

treatment. However, accurately determining LTFM levels is difficult given the year-by-year

nature of tax codes. If taxes are estimated incorrectly, the interest may not be enough to

cover the annual funding requirement, and part of the principal would need to be used to

cover the deficit. This shortfall would be amplified when combined with the discount rate

estimations used for net present value calculations. The result is that the LTFM may not be

able to cover the post-closure requirements for the duration needed for adequate treatment.

Specific legislation for trusts that are established for the continued funding of long-term Federal

land reclamation should be created to either allow these trusts to receive a set tax amount at

the time of trust establishment or to make the LTFM tax-free.

The IWG recommends that Congress enact legislation directing any financial assurances

remaining after completion of all necessary reclamation and remediation work performed on

behalf of an operator who filed for bankruptcy to be deposited into a fund to support

reclamation and remediation of AMLs that are subject to funding shortfalls. In cases where

the government has completed reclamation on behalf of a bankrupt operator and there are

remaining financial assurance funds, under Interior regulations, the unused portion of the funds

are returned to the party from whom the funds were collected. Returning unused funds to

insolvent or absent operators is complicated and resource-intensive, in particular where

reclamation takes years to complete or the operator is or was subject to bankruptcy

proceedings, and may serve to further disincentivize the operator from performing the

reclamation themselves. The IWG recommends that Congress revise the tax code to direct

that unspent funds, if and when they exist, be transferred to the abandoned hardrock mine

reclamation program established under section 40704 of the BIL and used to support

abandoned mine cleanup.

6. Review agency reclamation assumptions for unforeseen costs as part of bonding estimate. (P)

Today, agencies set the projected cost for reclamation based on existing plans and information,

and build in some increase to provide a margin of safety for taxpayers due to the size and duration

of the expected reclamation. Currently the BLM allows for a contingency based on the following

guidance from Handbook H-3809-1:

133

A contingency cost is included in the reclamation cost estimation to cover unforeseen

cost elements. Calculate the contingency cost as a percentage of the [operation and

maintenance] cost as follows: up to and including $500,000, use 10 percent; over

$500,000 to $5 million, use 8 percent; over $5 million to $50 million, use 6 percent;

and greater than $50 million, use 4 percent.

326

Under USFS regulations and policies, the level of contingency varies based on the complexity and

type of operation and the level of information available to define the operation and its associated

effects on surface resources. For plans that are 30–50 percent accurate, the recommended

contingency is to add an additional 30–50 percent (divided between scope and bid contingencies)

of the direct costs to the total estimate. For a very detailed plan of operations, typically a

constructed and well-developed operating mine where most of the components exist and are

measurable on the ground (as opposed to conceptual in a drawing), the accuracy of the plans is

closer to 95 percent, and therefore the recommended contingency range is between 15–30

percent of the direct costs (again, split between scope and bid).

327

However, neither agency’s reclamation bonds account well for catastrophic events such as tailings

dam failures or a massive release of polluted water like at the Gold King Mine. The USFS Bond

Guide explains that a contingency is not a way to estimate the cost of worst-case scenarios, such

as a tailings dam failure, but rather is meant to address errors that exist in every estimate resulting

from the use of assumptions and conceptual information rather than actual measurement of the

work to be performed.

The IWG encourages BLM and USFS to establish joint bonding policies to the extent possible.

The IWG recommends that both of these policies be reviewed to ensure they accurately provide

for unforeseen overages in cases when the government must perform the required reclamation.

This review should determine whether separate guidance may be required for a contingency

applied to a long-term cost estimate, as the extended time frame decreases the level of accuracy

in known quantities and increases the likelihood of unforeseen overages.

7. Strengthen requirements for financial assurance instruments. (R)

As discussed in Section X.A, BLM has determined that insurance policies are a poor form of

financial insurance, particularly as taxpayers may assume financial responsibility for reclamation if

payments on the insurance policy lapse. However, BLM still officially allows insurance policies to

be used as acceptable financial assurance, although it does not currently hold any. To ensure that

326

Bureau of Land Management, “Surface Management Handbook H-3809-1,” September 2012, sec. 6-15 p., 131.

327

Supra., note 268.

134

insurance policies are not accepted in the future, the IWG recommends that BLM remove

insurance from the list of acceptable financial assurances.

The IWG recommends that the USFS provide specific guidance in requiring and establishing LTFM,

similar to the guidance contained in the BLM’s 43 C.F.R. § 3809.555 regulations. Specifically, the

IWG recommends that USFS regulations be amended to include the use of equity investments as

well as negotiable securities in a trust fund, creating more flexibility in a dynamic financial climate.

This update is essential to developing a sustainable approach to long-term bonding on national

forest lands.

8. Revise MOUs for governing bonding roles and responsibilities and bond release reviews. (R, P)

MOUs between Federal agencies and States—such as the one between BLM, USFS, and the State

of Nevada—are effective tools for ensuring that bond amounts are sufficient to address

reclamation costs. In some instances, these MOUs have become outdated and a change in Federal

statute and/or regulation has occurred, or there have been changes to individual State statutory

or administrative codes and rules. The IWG recommends that existing MOUs between Federal

and State agencies be reviewed and updated as appropriate to provide a consistent standard for

setting financial assurance requirements. The IWG recommends that Federal parties to an MOU

establish intervals for MOU review in order to ensure that the MOUs remain sufficient and current

and that Federal parties clearly track all MOUs currently in effect. The IWG further recommends

that the MOUs clearly indicate, or be revised to indicate, that with respect to financial assurances,

any monies held by the State for reclamation of mining activities on Federal land need to be

available to Federal agencies engaging in reclamation or remediation of those lands. Creating

financial assurance release clauses where all regulatory parties review and concur should be

considered. The IWG also recommends that, to the extent possible, MOUs follow a consistent

template and approach in order to provide consistent direction to agency staff and mine

operators.

9. Develop a Reclamation Handbook. (P)

BLM staff indicated to the IWG the potential value of having consistent standards for reclamation

that are clear, achievable, and appropriate for an operation. USFS currently has reclamation

guidance. Alignment between the two agencies would be welcomed, and the IWG recommends

that the two agencies work together to create one shared reclamation handbook for field staff to

provide such standards.

135

H. Government and Private Sector Capacity

1. Provide adequate resource support for Federal permitting agencies and historic preservation

offices. (L)

The IWG recommends that Congress provide sufficient support to Federal agencies to hire, train,

and retain experts in mining, mining engineering, environmental science, environmental

engineering, project permitting, and related fields, and that Federal experts in these areas be

dedicated to evaluating and monitoring mineral exploration, mine plans, designs and operations,

environmental analysis, reviewing environmental monitoring and remediation plans, and

monitoring and overseeing compliance with mining and environmental requirements and

permitting-related work. This should also include investments in Tribal Historic Preservation

Offices and State Historic Preservation Offices, which would allow historic preservation offices to

engage more effectively in project reviews and conduct cultural resource inventories in advance

of specific project proposals, which would accelerate NHPA compliance and allow for earlier

avoidance of potential cultural resource conflicts.

As shown in Figure 1 (page 20), the number of mining claims on Federal land has increased

significantly in recent years, which could lead to additional demands on Federal agencies to process

exploration and mining plans in the near future. Even at the current level of activity, the Federal

agencies that handle mine permitting lack the resources needed to consistently process permits

swiftly. The GAO has identified a shortage of agency resources, including “staff, staff expertise,

funding, infrastructure, training, and/or computer technology,” as the second most cited challenge

affecting the hardrock mine plan review process.

328

Limited agency capacity is a challenge that was

previously summarized in the 1999 National Research Council report: “Some land management

offices report that they have too few people to conduct inspections, review proposed operating

plans, process appeals, and conduct other required activities. This concern extends beyond the

number of people…. Offices responsible for regulating mine projects may not always have access

to the trained and experienced personnel required.”

329

These challenges persist today. As noted

by industry commenters:

[F]ederal resources devoted to reviewing and permitting mining operations on federal

lands remain inadequate. Some BLM and Forest Service offices are short-handed or

lack expertise to review specific elements of exploration or mining plans. A lack of

resources, including people and technology, limits the ability of federal land managers

to timely review and process mining plans and will ultimately limit the nation's ability

328

Supra., note 5

329

Supra., note 55

136

to explore for and produce minerals to meet national security and climate change

objectives.

330

Another large mining interest voiced a similar concern, explaining that:

BLM and the FS need to substantially increase the number of qualified mineral

professionals including but not limited to mining engineers, economic geologists,

mineral examiners, hydrologists, air quality specialists, and geochemists who are

qualified to evaluate environmental baseline studies and Mining Plans of Operation.

Albemarle recommends increasing qualified staff at EPA, the Corps, and other agencies

frequently involved in mineral project NEPA review and permitting…. Increasing

agency staffing levels in districts with high levels of mineral exploration and

development activities would help reduce the agency review times that are currently

contributing to permitting delays.

331

The IWG encourages Federal agencies to, consistent with applicable laws and regulations, review

resource availability for human capital development and retention, including the use of interagency

tools such as transfer authority and reimbursable agreements.

While the BIL and Inflation Reduction Act (IRA) provide a much-needed influx of short-term

resources for permitting, a sustained focus on hiring, training, and retaining agency mining experts

is needed to expedite the environmental analyses and permitting needed to increase domestic

critical mineral supplies, protect the environment, and engage interested Tribes and stakeholders.

Simply put, no application will be processed quickly if agencies lack the experts to conduct the

review. The need for additional resources is also true for those agencies such as the FWS, EPA,

and USACE, which also have NEPA review, project authorization, and permitting responsibilities.

2. Build out the Federal database of mineral data and reporting requirements. (L, R, P)

The IWG recommends that BLM and USFS collaborate to collect consistent information and

share this information in a unified format that is accessible and understandable to the public.

Alternatively, Congress could assign such responsibility to another agency, such as the USGS.

Federal mining and mineral data are fragmented and incomplete. While the USGS is considered

the world leader for mineral data and has significant but short-term resources from the BIL and

IRA to collect new geophysical data, the Federal government cannot answer simple questions such

as the quantity of minerals being produced from Federal lands. More comprehensive reporting by

330

Supra., note 181

331

Supra., note 313

137

operators and better ways to access mineral data would significantly improve our knowledge of

potential mineral deposits, how to develop them as sustainably as possible, and how to assure a

fair return for taxpayers.

The IWG recommends implementing uniform, transparent, and systematic data reporting

throughout the mine life cycle (for example, on production of target commodities; byproduct

generation; waste rock management; the quantity of water diverted, disposed and consumed; the

quantity and quality of waste and process water discharges; greenhouse gas emissions; and

environmental indicators such as surrounding land, air, and water quality) in standardized machine-

readable formats that can facilitate external analysis using automated methods. Part of this

requirement could be met by expanding the USGS National Mineral Information Center's surveys

of industry and by granting those surveys mandatory response authority where appropriate, while

providing that the responses may remain proprietary or on close hold within the federal

government as appropriate.

Building a comprehensive database from Federal data gathering efforts, such as the USGS’ Earth

MRI,

332

can help prioritize areas with higher mineral potential and lower resource conflicts and

environmental sensitivities prior to exploration and development. Once projects move forward,

having a Federal protocol for data collection and publicly available data would enhance project

management and permitting across the country. This requires investment in the modernization of

data management systems (e.g., storage, maintenance, and service) as well as the development of

advanced techniques in data processing, such as the use of artificial intelligence to create derivative

products that have immediate application to decision-making.

Sustained support of Earth MRI beyond the BIL would facilitate a longer-term planning horizon

needed to continue expanding geophysical data coverage of the nation, incorporate new data

types important for other minerals (such as industrial minerals), and develop data analyses that

can be used to identify prospective areas for mineral resources and help with environmental

assessments (such as for applications to water resource planning and surface water-groundwater-

mine water interactions).

Drilling data and mine maps could also further our understanding of the subsurface and lead to

better delineations of mine wastes and mineral resources in three dimensions. The IWG

recommends that company data from exploration and production on Federal lands be made

available to Federal and State geologic surveys, subject to appropriate protections for proprietary

information. Requiring mining companies to provide exploration data to the USGS and State

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Earth Mapping Resources Initiative (Earth MRI). https://www.usgs.gov/special-topics/earth-mri.

138

geological surveys could greatly enhance our understanding of mineral potential and provide

multiple ancillary benefits, including assisting in future assessments of national mineral resources

and more effective land management planning.

3. Increase Federal investments in new technologies for data collection. (L, P)

Field staff told the IWG of the need to invest in new technologies to allow BLM and USFS to

improve data collection and oversight. Staff suggested the adoption of standardized electronic

forms for compliance inspections, tablets or other mobile devices with GIS-based data collection

tools and high-resolution imagery, and the use of drones to assess site conditions. Staff believe

these kinds of tools and moving towards electronic submission of mining plans and notices would

make permitting more efficient. The IWG agrees and recommends that the BLM and USFS

consider options to incorporate such enhancements.

The IWG also recommends the agencies explore eliminating the requirements to maintain physical

case files and conduct correspondence by certified mail and transitioning to electronic case file

data management and conducting official correspondence via email.

Field-based data collection could be enhanced using modernized, less invasive, and less expensive

acquisition of data and samples from difficult-to-reach areas (such as unstable areas, subsurface

structures, previously mined shafts and adits, and mine waste areas) using autonomous vehicles

or novel drilling techniques. Previously mined areas in particular have the potential to greatly

expand our understanding of the subsurface while providing the data needed for stabilizing these

areas against potential environmental and physical hazards.

4. Increase Federal support and investment in research. (L)

The IWG considered recommendations suggesting that Congress reinstate the U.S. Bureau of

Mines (USBM) to oversee all hardrock mineral development on Federal lands and lead Federal

mining research efforts. While some research functions were transferred from the USBM to other

agencies, a number of USBM research offices and centers were permanently closed, and Federal

research and development support in fields such as mining, environmental science and technology,

and minerals and materials sciences has been lost. The IWG does not believe that re-creating the

USBM is necessary to facilitate research efforts that could be effectively conducted or overseen

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by existing agencies, such as the DOE or DOI, but the IWG does recommend that those research

efforts be re-established at one or both of those departments.

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Other research needs identified by the IWG include improved procedures for characterizing the

potential for acid rock drainage and metal leaching, models for predicting impacts on water quality,

understanding the interaction between groundwater flow and mining, mining practices that reduce

surface disturbance and greenhouse gas emissions, improving water treatment, and management

and reclamation of tailings, waste rock, and overburden. Additional research could also lead to

improved yields from both mining and reprocessing. As highlighted by the recent OSTP/CEQ

guidance to federal agencies, there is also a need to ensure that this research considers all lines of

evidence appropriate to federal decision-making, including Indigenous Knowledge.

334

Numerous other research needs exist, such as those outlined in a 2002 National Research Council

study, ranging throughout the mining life cycle, from extraction to reclamation to post-closure.

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Advancements can lead to new technologies that reduce production costs, improve production

efficiency, enhance the quality of existing mineral commodities, and create opportunities to

economically extract mineral commodities that are now considered technologically or

economically inaccessible. Research can also advance new technologies that improve mine waste

management, mine reclamation and remediation, and water and ecosystem restoration; prevent,

avoid, reduce, or minimize the environmental impacts of mining, milling, and mineral processing;

and lead to better opportunities to beneficially reuse mined lands. Additionally, re-establishment

of the former USBM’s role in technology transfer could improve the implementation of research

into practice and advance improved technologies throughout the entire mining life cycle.

Investments in both data collection and research will also allow for the professional development

of a new generation of subject matter experts whose knowledge can support efforts to modernize

the mining and permitting systems in the U.S.

5. Create a grant program for mining schools. (L)

The IWG recommends that Congress authorize grants to mining schools to train personnel in

modern, efficient, and effective mining and environmental management practices and in mining-

relevant geoscience and engineering fields that have diminished over recent decades. Both industry

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The USBM is still in the U.S. Code, so technically it exists, but as it has had no funding for over 25 years and other

agencies have been given many of its responsibilities, providing new funding to the USBM would be effectively the same

as recreating it.

334

Supra., note 213

335

Supra., note 284

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and the Federal government struggle to find personnel with the necessary training or experience

to address complex mineral development-related issues. Sustained funding is needed to recruit

and retain trained personnel within agencies and industry.

6. Provide the USFS and FWS with full cost recovery authority. (L, R)

While the BLM has the ability to charge cost recovery fees to applicants and retain the revenue,

the USFS and FWS do not have statutory authority to do so. The IWG recommends that

Congress provide the USFS and FWS with this authority.

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Appendix I: List of Acronyms

ACHP ......................................................................................................................... Advisory Council on Historic Preservation

AML ........................................................................................................................................................................ Abandoned Mine Lands

BIL ............................................................................................................... Bipartisan Infrastructure Law [Public Law 117-58]

BLM ........................................................................................................................... United States Bureau of Land Management

CAA ............................................................................................................................................................................................... Clean Air Act

CBA ...................................................................................................................................................... Community Benefit Agreement

CBO ............................................................................................................................................................ Congressional Budget Office

CEQ ............................................................................................................. White House Council on Environmental Quality

CERCLA ........................................ Comprehensive Environmental Response, Compensation, and Liability Act

CWA .................................................................................................................................................................................... Clean Water Act

DOC .............................................................................................................................................................. Department of Commerce

DOE .......................................................................................................................................................................... Department of Energy

DOI ................................................................................................................................................................. Department of the Interior

EA ..................................................................................................................................................................... Environmental Assessment

EIS ....................................................................................................................................................... Environmental Impact Statement

EJ ..................................................................................................................................................................................... Environmental Justice

E.O. .......................................................................................................................................................................................... Executive Order

EPA .................................................................................................................................................. Environmental Protection Agency

FAST-41 .............................................................................................. Title 41 of the Fixing America’s Transportation Act

FLPMA ......................................................................................................................... Federal Land Policy and Management Act

FNMPC ............................................................................................................................... First Nations Major Projects Coalition

FPIC ............................................................................................................................................... Free, Prior, and Informed Consent

FPISC ................................................................................................ Federal Permitting Improvement Steering Committee

FRN ......................................................................................................................................................................... Federal Register Notice

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FSM .............................................................................................................................................................................. Forest Service Manual

FWS ...................................................................................................................................... United States Fish and Wildlife Service

FY ............................................................................................................................................................................................................ Fiscal Year

GAO ............................................................................................................................................. Government Accountability Office

GISTM ............................................................................................ Global International Standard on Tailings Management

ICMM ........................................................................................................................ International Council for Mining and Metals

IEA ................................................................................................................................................................. International Energy Agency

IFC ................................................................................................................................................... International Finance Corporation

IGF ............................... Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development

IK .................................................................................................................................................................................. Indigenous Knowledge

IRA .............................................................................................................. Inflation Reduction Act [Public Law No. 117-169]

IRMA ........................................................................................................................ Initiative for Responsible Mining Assurance

IWG ............................................................................................................................................................ Interagency Working Group

LTFM................................................................................................................................................ Long Term Financial Mechanisms

MRI ................................................................................................................................................................Mapping Resources Initiative

NEPA .............................................................................................................................................National Environmental Policy Act

NFMA ............................................................................................................................................. National Forest Management Act

NGO ............................................................................................................................................... Non-Governmental Organization

NHPA .......................................................................................................................................... National Historic Preservation Act

NMA ............................................................................................................................................................. National Mining Association

NMFS ................................................................................................................................................National Marine Fisheries Service

NOI .......................................................................................................................................................................................... Notice of Intent

NPDES ........................................................................................................ National Pollution Discharge Elimination System

NPS ............................................................................................................................................................................... National Park Service

NWRS .............................................................................................................................................. National Wildlife Refuge System

OECD .............................................................................. Organisation for Economic Co-operation and Development

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ONRR ................................................................................................................................... Office of Natural Resources Revenue

OSMRE ........................................................................................ Office of Surface Mining Reclamation and Enforcement

OSTP ............................................................................................. White House Office of Science and Technology Policy

PDAC ................................................................................................... Prospectors and Developers Association of Canada

RCRA ......................................................................................................................... Resource Conservation and Recovery Act

RFI ........................................................................................................................................................................... Request for Information

ROD ................................................................................................................................................................................ Record of Decision

SDWA ................................................................................................................................................................ Safe Drinking Water Act

SIA ....................................................................................................................................................................... Social Impact Assessment

SMW ................................................................................................................................................................................Small Miner Waiver

SOPA ...................................................................................................................................................... Schedule of Proposed Actions

TSM ............................................................................................................................................................... Towards Sustainable Mining

UUD ......................................................................................................................................... Unnecessary or Undue Degradation

UNDRIP ............................................................... United Nations Declaration on the Rights of Indigenous Peoples

USACE ............................................................................................................................ United States Army Corps of Engineers

USBM .................................................................................................................................................... United States Bureau of Mines

USDA ............................................................................................................................ United States Department of Agriculture

USFS ............................................................................................................................................................. United States Forest Service

USGS .................................................................................................................................................. United States Geological Survey

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Appendix II: Summary of Public Comments Received from March 31,

2022, Federal Register Request for Information

Kearns & West was contracted by the Department of the Interior’s Office of Collaborative Action

and Dispute Resolution to assist with coding and categorizing comments received through listening

sessions, Tribal consultations, and the public comment process for the Federal Register Notice (FRN)

from March 31, 2022: Request for Information to Inform Interagency Working Group on Mining

Regulations, Laws, and Permitting (Docket DOI-2022-0003). This report integrates comments

received by written responses to the FRN, comments made during the Tribal listening sessions and

consultations, and a series of 10 expert interviews with mining subject matter experts in industry,

academic, government, and non-governmental organizations.

The comments received through listening sessions, consultations, and interviews were recorded and

categorized into key takeaways. Kearns & West participated in the listening sessions and Tribal

consultations in August 2022 (August 15th, 25th, 26th, 29

th,

and 30th). The comments received were

analyzed by identifying recommendations and then organized into categories/codes found in the

recommendations. These categories/codes allowed the project team to develop key takeaways by

grouping similar comments together by the categories and regulations and to create descriptive

summaries of these comment groupings. In addition, the project team conducted ten expert

interviews with participants from academic, industry, and government organizations. The key

takeaways from those conversations have been integrated into the appropriate sections below with

the names and affiliations of the interviewee listed for reference.

The written comments received from the FRN were sorted into several categories. There are 26,978

comments, including 26,676, attributed as form letters (from 16 master form letters). These letters

were identified by the PEPC (Planning, Environment & Public Comment) team at the National Park

Service as letters that had most of the content identical to the master form letters. Next, the team

reviewed 960 comment letters that had a large portion of matching content for any unique

recommendations. Out of the remaining 302 individual letters and attachments, the project team

identified requests to categorize them into 126 letters and reviewed the attachments for them. Finally,

the project team identified recommendations made in these letters and organized them into several

categories (or codes).

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Table 1: Types of Written Comments

Type of Written

Comment

Count of Written

Comment

Form Letters or largely

form letters

26,676

Total Unique Letters

(some with

attachments)

302

Unique Letters with

Recommendations

126 (285

recommendations)

Total Comments

26,978

The structure of the key takeaway sections below consists of a theme that the project team identified

based on a comment review. Within each overarching theme, the project team identified key

takeaways for each theme. However, the team included individual quotes from comments where a

comment reflects the heading, even if it does not belong to a broader key takeaway. The bolded text

refers to the number of comments where each theme emerged from the comments. Under each

theme, the project team identified key takeaways, numbered with bulleted examples of quotes that

illustrate the takeaway. The illustrative quotes contain references about the sector area that each

recommendation came from in addition to the file name from the letter submitted to the Federal

key takeaways (80) are bulleted under each numbered heading topic (59 topics).

A. Access to and Use of Public Lands

• Several comments recommended that patents under the mining law should be eliminated.

Eight individual recommendations centered on this theme.

 From an NGO letter: “The location-patent framework gives outsized power to the

mining industry in determining where and when to dig up a publicly owned resource

on publicly owned land. And with that degree of control, the mining industry cannot

earn a legitimate social license, for it is not expected to demonstrate that its use of

public lands and minerals serves the public interest. That must change if environmental

interests and the views of Tribes and public-lands communities are to be truly

respected when our common mineral wealth is mined.”

• Give more authority to land managers and land management agencies—Five individual

recommendations centered on this theme.

 From an NGO letter: “Additional authority to land managers to balance mining uses

with other uses of public lands, including authority to decide whether to approve

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mining plan of operations and to reject proposals that may cause substantial

irreparable harm.”

• Several comment letters requested that additional authority be given to federal agencies

involved in mining enforcement and regulation. Federal agencies should have the explicit

authority to deny projects, strengthen regulations, and enact protective regulations. 9 individual

recommendations centered on this theme.

 From an NGO letter: “Make agencies' authority to deny projects explicit: The location-

patent system is incompatible with meaningful consultation and genuine environmental

safeguards. To fashion an efficient, environmentally fair, and culturally respectful

mineral-development policy, federal law must vest our civil servants with authority to

comprehensively plan for mining on public lands and to make resource-allocation

decisions that account for competing public values. As the law now stands, the agency

staff carrying out the day-to-day management of the nation's mineral estate believe

that, absent a mineral withdrawal, they are powerless to forbid mining to preserve

other values of public lands.”

• Updating existing mine operations to promote critical mineral production at existing sites

should be prioritized over development of new mine sites. 3 individual recommendations

centered on this theme.

 From an academic letter: “It is also helpful to remember that the solutions to ensuring

a safe and secure supply of critical minerals do not rest solely in the creation of new

mines. The land use planning process could be used to identify opportunities to

develop critical minerals from existing mining operations and abandoned mine lands,

including mine and mill tailings. We support efforts to incentivize remining and

reprocessing of abandoned mine and mill sites. Done properly, redeveloping such sites

could reduce impacts compared to development of undisturbed sites. If critical

minerals can be obtained by reprocessing mine and mill waste, and contaminated sites

can be remediated as part of that process, such actions should be a top priority,

provided that all environmental standards are included in the mine development

proposal.

• Certain areas of land should be considered off-limits to mining due their outstanding ecological,

conservation, recreation, cultural, or other values. New mining projects should not be

approved if they would impair water resources, scenic values, wildlife habitat, sacred sites, or

other important conservation or cultural resources. 11 individual recommendations centered

on this theme.

 From an NGO letter: “Yes, areas that should be off-limits to mining are areas of

ecological and cultural significance, including, but not limited to those that are

important to maintain climate-resilient and connected habitats; areas that are critical

habitat for threatened and endangered species; areas that are of cultural significance

to Tribes based on historic and ethnographic investigation and consultation with tribal

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councils and elders; and areas within National Wildlife Refuges and other public land

designations incompatible with mining operations or impacts. The Nature

Conservancy's Resilient Land Mapping Tool is the resource to identify areas with

important conservation and climate values that would be unsuitable for mining.

Permitting agencies should identify other areas using the best available science and

through direct consultation with tribes and other entities with access to the relevant

data.”

• There should be no more mineral withdrawals; existing statutory and administrative tools for

withdrawing lands are effective. Nine individual recommendations centered on this theme.

 From an academic letter: “Keep all federal public lands open to mineral entry and do

not close the roads that we, as taxpayers, paid to build and open. Recognize 11R.S.

2477 was a standing offer of a free right of way over the public domain," the

acceptance of which occurred ‘without formal action by public authorities’ for roads

or trails that existed prior to FLPMA (Pub. L. 94-579) on October 21, 1976 as a valid

existing access '4right of way’, ‘rights of ingress and egress" and public highway

following NEPA ‘Preserve important historic, cultural, and natural aspects of our

national heritage’.”

• Some comment letters advised that any consideration for withdrawal from mineral entry on

public lands must first ensure that all valid existing rights are protected and have a potential

mineral survey conducted. Seven individual recommendations centered on this theme.

 From an academic letter: “Any withdrawal from mineral entry on the public lands must

first have a potential mineral survey conducted which will include: historic mining claim

inventory and data on minerals mined, historic access to those mining claims

documented and mapped, geological mapping of the lands affected, use of geotechnical

and geophysical surveys of the potential withdrawal lands, geochemical analyses of

potential mineralization by geologist conducting the geological mapping, and in cases

of previous mapping and surveys, conduct geochemical sampling of areas identified to

have mineral potential. Report such finding to the public for coordination on the

decision to withdraw any public lands from mineral entry.”

A. Fair Return and Diligent Development

• Several comment letters supported the collection of royalties on mining activities. 20 individual

recommendations centered on this theme.

 From an academic letter: “Collecting a federal royalty will provide much-needed capital

to the federal government to reclaim abandoned mine lands and will advance a fairer

return on the use of public lands for the American people.”

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• Several comment letters advocated for a leasing system versus the current claims system, with

several suggestions on practices for doing so. 36 individual recommendations fell under this

theme.

 From an academic letter: “Based on my experiences with both the scientific and legal

aspects of mining, American mining laws must move past the claims system and

implement a leasing system to protect environmental features while protecting

domestic mining opportunities. Where a claims system transfers land to a private party

who has discovered a valuable mineral deposit, a leasing system will allow federal

control of the land and provide more oversight for land managers.”

• One comment letter received discussed claim maintenance fees.

 From an academic letter: “The most recent proposal for revenues institutes an 8%

royalty on new mines, a 4% royalty on existing mines, a hard rock mining reclamation

fee, and an increase of the annual claim maintenance fee. This round of reforms has

the potential to raise over 3 billion dollars for the next 10 years and are the best

option for royalties on federal lands.”

• One comment letter received discussed claim maintenance fees escalation.

 From an industry letter: “Albemarle supports more efforts to address abandoned mine

lands and points to the annual claim maintenance fees and service fees as a potential

source of additional funding. Albemarle believes that the mining industry generally is

willing to participate in remediating mining legacy issues and has the expertise to do

so. However, the potential for liability under the Clean Water and Superfund is a

major hurdle. Albemarle also supports Congress's enactment of S. 3571, the ‘Good

Samaritan Remediation of Abandoned Hardrock Mines Act’ to begin to address the

liability concerns.”

• Many comment letters received advocated for improved reclamation efforts and the

establishment of Good Samaritan legislation. Letters contained an extensive variety of

recommendations on the reclamation of abandoned sites, components for a successful mine

reclamation program and well-founded Good Samaritan legislation. 62 total recommendations

centered on this theme.

 From a State government letter: “Addressing Abandoned Mine Lands - The State

supports creation of a program that incentivizes reclamation of abandoned mine lands,

regardless of underlying land ownership. Such a program should (1) require landowner

consent, (2) limit the assumption of pre-existing contamination, waste, or reclamation

liabilities by an operator that implements an approved remediation or reclamation

plan, and (3) generate transferable credits that can be used by an operator to mitigate

or offset impacts from new mineral activities approved by applicable regulatory

agencies. Alternatively, an abandoned mine land fund could be financed by the revenue

generated from a net income production payment or royalty to help reclaim

abandoned mines.”

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• Several comment letters recommended increasing the funding provided for all stakeholders

involved in the mining process. This includes increasing funding to agencies and land managers

and ensuring funding is available to communities and states. 10 individual recommendations

centered on this theme.

 From a multi-organization letter: “To ensure that impact plans are effective, mining

reform should consider additional steps, including Funding should be made available to

communities for planning and community engagement. Rural communities require the

capacity to convene meetings, access data, and information, and conduct necessary

assessments. Funds for community planning should be in addition to impact payments

related to mining activity and should be earmarked for capacity building, technical

assistance, and community engagement. The federal mining impact board could

provide funding and services. The process should be aligned with existing rural

development programs and expertise, such as the Rural Partners Network. A Civilian

Climate Corps or similar program that places staff directly in mining communities

could provide capacity for communities.”

• One comment letter received discussed a revenue-sharing program.

 From an NGO letter: “Mining reform should impose a royalty on new extraction.

However, royalties should not be shared directly with state and local governments

without mechanisms to stabilize and provide for intergenerational benefit. 1) We

recommend that the U.S. Treasury establish a permanent fund to invest all or most

royalties from hard rock mining (only royalties spent to implement impact plans and

CBAs should not be invested). The fund should be invested to earn income, and the

fund should make stable and predictable distributions to state and local governments

in lieu of direct annual revenue sharing payments. Examples of permanent funds

include the New Mexico State Land Grant Permanent Fund and the Southern Ute

Indian Tribe Permanent Fund. 2) Another option is to distribute federal mining

royalties to a national NGO who would establish and manage a permanent fund on

behalf of states and communities. This arrangement would facilitate a diversified

investment strategy that the U.S. Treasury may be limited from pursuing. A NGO also

could best ensure the permanence of the fund from future changes in federal policy

and spending. Several proposals in the Congress would establish a ngo and permanent

fund, including legislation from Senator’s Wyden and Crapo and Senator Bennet.”

B. Permitting Process Recommendations

• Some comment letters recommended utilizing the state of Nevada’s permitting process as a

model. 6 individual recommendations centered on this theme.

 From a State government letter: “Permitting Certainty (#7) Consistency is needed in

the permitting process among federal land managers, including the BLM and USFS.

Mining is inherently site-specific, requiring the evaluation of mining proposals to be

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site-specific as well, as envisioned in the NEPA process. However, with authority

delegation reserved for the BLM Field Office Manager and the USFS District Ranger,

the permitting process has the potential to be individualized resulting in process

inconsistencies, which can translate to uncertainty. Increased use of consolidated

subject matter experts at BLM State Offices or National Forest level as part of

dedicated mining Environmental Assessment or Environmental Impact Statement

teams would increase evaluation consistency and accountability and decrease

permitting times.

 From an industry interview: “BLM in Nevada will use pre-submission process that

allows identification of information needs, collection, etc. It allows for an upfront

conversation about environmental concerns, data collection. Pre-submission meetings

allow for identifying big issues particular to the site/project up front. Universally

applying this pre-submission process would be helpful across all agencies and

locations.”

• Many comment letters recommended streamlining the permitting process. Permitting

timelines need to be shortened and solidified. Comment letters provide various strategies to

achieve these goals. 41 individual recommendations centered on this theme.

 From a State government letter: “South Dakota supports streamlining the federal

permitting process for mining companies which would help expedite the mining of

critical minerals in the United States. In South Dakota, a mining company can be issued

a mine permit in a process that can take no more than two years to complete. This

includes baseline data collection, extensive staff review of environmental issues, and

public participation in mine permit applications. This compares to anywhere from

seven to ten years or more for a mining company to navigate through the federal

application process and appeals process through litigative measures. These delays can

have a negative impact on a company's ability to develop and mine critical mineral

deposits in the United States.”

• Several comment letters made recommendations regarding the legal components of the

permitting process. 6 individual recommendations centered on this theme.

 From an industry letter: “To facilitate and expedite the responsible domestic

production of uranium and other critical minerals, the permitting process must be

streamlined. This can be done without sacrificing the ‘hard look’ required by the NEPA

process. Excessive NEPA appeals and litigation create these delays and uncertainties.

NEPA can unfortunately be manipulated to use appeals and litigation to purposely

create lengthy and costly project delays that have little or nothing to do with the merits

of a case.”

• A few comment letters supported the establishment of baseline data collection and reporting

of mining sites. 3 individual recommendations centered on this theme.

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 From a multistakeholder organization letter: “A broad range of environmental, social,

and economic impacts are explicitly included in the IRMA Standard impact assessment

requirements. The IRMA Standard requires the collection of baseline data describing

the prevailing environmental, social, economic, and political environment before mining

operations begin to allow the assessment of the potential impacts of the proposed

mining project.43 The IRMA Standard also requires the assessment of potential

impacts of "extreme events" (e.g., weather events intensified by climate change).”

 From an academic interview: “Soil, pH, plant biotic systems are heavily impacted by

mines. Develop soil health metrics. Consider climate change as are of planning. Take

baseline measurements to show what plant species are present prior to the mine,

then plan rehabilitation after the life of a mine considering climate change. Replanting

the same plant species present at the baseline measurement may not make sense.”

• Some comment letters highlighted the need to increase local outreach to affected

communities. This ensures community members can be knowledgeable, participative, and

empowered throughout the project process. 5 individual recommendations centered on this

theme.

 From an academic letter: “Use newspapers, social media, local radio and TV to

communicate the project and the opportunity for community participation. Give local

participation and comments more weight in permit decisions and do not ignore local

customs of all residents and examine and disclose the economic impacts of the

permitting decisions.”

• Several comment letters advised that the permitting process and related regulations should

have greater consistency and predictability. 8 individual recommendations centered on this