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  • GDP, US$bn: 18,624.5
  • GDP per capita, US$: 56,244.1
  • Population, mn: 321.8
  • Inflation, CPI ave: 1.8
  • FX, LCY/US$: 1.0
  • Budget Balance, % of GDP: -3.1
  • Mining GVA, US$bn: 263.3
  • Mining Industry Value, US$bn: 114.1
Country: United States
Regulatory Risk Rating
70
0
100
Score: 70
Low Risk
There is little doubt that the General Mining Law of 1872 has withstood the test of time; today, the law remains a solid foundation for the development of mineral projects supported by a large and sophisticated group of lawyers, landmen (and women) and administrators. One could examine all modern mining codes in the past decade and, on a comparative basis, invariably find deficiencies that are not found in this stalwart piece of legislative drafting. Were it not for the age of the legislation, and certain pre-set value prescriptions for factors that are not particularly problematic in the law, the MineHutte score would be nearly perfect. That said, the law does not operate alone and, within the ocean of mine permitting approvals, it is easy for miners to find themselves beached on an island of destitution, particularly as a result of well-funded, NGO and other legal challenges aimed at preventing or forestalling development activities in a particular state. The perspective of those in support of development and those against are as polarized as the political views shared by supporters of the Tea Party movement and the Green Party.

Corruption Potential Index

Score: 100
Very Low Corruption Potential

Corruption Risk Index

Score: 95
Very Low Corruption Risk

Regulatory Risk Rating

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Environmental Overview Commentary plus sign

UNITED STATES OF AMERICA - FEDERAL ENVIRONMENTAL REGULATION

GENERAL

The United States of America (U.S.) is a nation comprised of 50 states, the federal district of Washington D.C. and several territories, including Puerto Rico, Guam and the U.S. Virgin Islands. With 3,717,792 square miles (9,629,091 square kilometers) of land, it is considered the third largest nation on the globe. The area known as the continental United States includes 48 of the 50 states, which are contiguously located on the continent of North America, bordered on the north by Canada and to the south by Mexico. The North Pacific and North Atlantic Oceans form the westerly and easterly boundaries, respectively, of the continental United States. The remaining two states of Alaska and Hawaii are geographically separate from the continental US. Alaska, the largest state, with its diverse geography, including mountains, glaciers, tundra and grasslands, is located in the northwestern part of North America to the north and east of the province of British Columbia and the Yukon Territory of Canada, respectively, south of the Arctic Sea and west of the Bering Sea. Hawaii, an archipelago of lush tropical islands with volcanic mountains, is situated in the Central Pacific Ocean just south of the Tropic of Cancer and approximately 2,550 miles (4,104 kilometers) southeast of the U.S. western coastal city of Los Angeles, California.

The geographical terrain of the continental U.S. is markedly varied amongst the many regions of the U.S. In the Northeast one finds the mountains, rolling hills and rocky coastline of New England and, in the South, the tropical beaches of the panhandle state of Florida.   The great expanse of plains, known as the Great Plains, as well as the largest freshwater lakes on the planet, the Great Lakes, are both primarily located in the region of the country known as the Midwest. In the Southwest, there exist large areas of desert, as well as the Grand Canyon in the State of Arizona. The Rocky Mountains, which straddle the Mountain States of Montana, Wyoming, Idaho, Utah, Colorado and New Mexico, forms a part of the continental divide that transverses both American continents. The West includes geographically diverse California with its hundreds of miles of Pacific coastline, which continues north into the densely forested Pacific Northwestern states of Oregon and Washington.

The flora and fauna in the U.S. is very diverse with nearly 3,000 species of vertebrate animals. The mammalian population includes large bears, such as the grizzly and Alaskan brown bear, buffalo, moose, prairie dogs, white-tailed deer and elk. The American bald eagle, a prominent symbol of the American nation, is perhaps the most celebrated of the numerous species of bird. Reptiles are also widely represented and include alligators, gila monsters and the notorious rattlesnake. There are over 18,000 species of flora, predominately flowering plants, but also notably the shortgrass prairie of the Great Plains, the cacti of the deserts of the southwest and west, and the ancient and gargantuan redwoods and sequoia trees found in California and the Pacific Northwest. A vast system of over 6770 national parks and other protected areas, covering more than 1,066,619 square miles (2,607,131 square miles) of land area, serves to shield this wide diversity of nature.

PRINCIPAL LEGISLATION AND REGULATOR

The National Environmental Policy Act 1969, as amended (NEPA) (42 U.S.C. § 4321 et seq.), is the foremost U.S. federal legislation pertaining to the environment. Its implementing regulations are contained in Title 40 C.F.R. Parts 1500-1508 and Title 43 C.F.R. Part 46. The U.S. Congress, in recognition of the impact human activity has on the natural environment, seeks through the regulations set forth in NEPA, to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans” (42 U.S. C § 4331).

NEPA requires a governmental entity that is contemplating taking a “major federal action” that may have a significant impact on the environment to give due consideration to environmental consequences before engaging in that action (40 C.F.R. § 1508.18, see 42 U.S.C. § 4332(2)). NEPA established the Council on Environmental Quality (CEQ) that functions within the executive office and reports on environmental policy to the U.S. President. CEQ is deemed the “caretaker” of NEPA and, among its many responsibilities, is charged with overseeing compliance by federal agencies. NEPA also plays a significant role with regard to operations based on mineral claims and leasing.

As discussed above, the U.S. Bureau of Land Management (BLM), which is governed by the provisions of the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. § 1701 et seq.) is the federal agency primarily responsible for the management and protection of the vast areas of U.S. public land and its natural resources for current and future generations of Americans. The BLM, which operates within the U.S. Department of the Interior (DOI), manages the surface areas of most public lands. The sub-surface mineral estate of federal lands (and in some cases of non-federal lands, known as “split estates”) is almost exclusively managed by the BLM. While our federal commentaries focus on the BLM, it must be kept in mind that other federal land management agencies such as the U.S. Forest Service (USFS) may have surface jurisdiction in some instances.

The BLM seeks to carry out the FLPMA mandates of “multiple use” and “sustained yield” as well as the prevention of “unnecessary and undue degradation” of these lands (see 43 U.S. C § 1702(c) and (h)). The BLM and its local state, district and field offices, are charged, inter alia, with administering the provisions of the General Mining Law of 1872, as amended (30 U.S.C. §§ 22-54 and §§ 611-615), as well as the Mineral Leasing Act of 1920, as amended (30 U.S.C. § 181 et seq. that includes the amendment known as the Mining and Minerals Policy Act of 1970 (30 U.S.C. § 21a et seq.)) through its Mining Law Administration program. The BLM must also meet NEPA requirements, which mandates that environmental concerns be taken into consideration when deciding whether a “major federal action” will be taken on these lands (See 40 C.F.R. § 1508.18). In addition to the federal statutory sources cited above, BLM must refer to the interpretations of DOI policy that are issued by the DOI Office of Environmental Policy and Compliance. The DOI provides guidance with respect to NEPA policy as it pertains to BLM in Chapter 11 of its Departmental Manual (516 DM 11).

While NEPA and FLPMA are at the forefront of U.S. federal legislation enacted to protect the environment, there are numerous (more than three dozen) other important federal environmental acts to be considered including the Federal Clean Air Act (the Clean Air Act) (42 U.S.C. § 7401 et seq.) and its later amendments, which safeguards and seeks to improve national air quality; the Federal Water Pollution Control Act of 1972 and its amendments (the Clean Water Act) (33 U.S.C. § 1251 et seq.), which regulates the quality of surface water and the discharge of pollutants into waters of the U.S.; the Safe Drinking Water Act, as amended (42 U.S.C. § 300f et seq.) (SDWA), which controls the integrity of the national drinking water supply; the Resource Conservation and Recovery Act (RCRA) (42 U.S.C. § 6901 et seq. (1976)) and its subsequent amendments, for the control of hazardous wastes; the Endangered Species Act of 1973 (ESA) (16 U.S.C. § 1531 et seq.), which is designed to protect endangered species of flora and fauna, as well as their ecosystems, and the Surface Mining Control and Reclamation Act of 1977 (SMCRA) (30 U.S.C. §§ 1201-1328; 30 C.F.R. Part 700 et seq.), an environmental act which regulates the coal industry and abandoned mine lands. These Acts often require a miner to obtain environmental permits and authorizations beyond the NEPA requirements discussed herein. Additionally, a state may also pass legislation in seeking to control the environment of that state and require the miner to comply with further permitting, authorization and reclamation requirements.

EIA PROCESS

“The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment” (40 C.F.R. § 1500.1(c)). BLM compliance with NEPA will be required where operations for the extraction of locatable or leasable minerals occur on federal public lands where the BLM manages both the surface land and subsurface mineral estate. Where the management or ownership of the surface and subsurface mineral estate differ (“a split estate”), for example where the BLM manages the subsurface mineral estate, but the surface is held in private ownership, compliance with NEPA may or may not be required depending on various factors (see BLM – NEPA Handbook p. 16). At times, several agencies, either on the federal, state, local or tribal levels, i.e., “cooperating” agencies, may have jurisdiction over the federal land subject to the NEPA process, in which case one agency will become the “lead” that supervises the preparation of the necessary NEPA analysis (40 C.F.R § 1508.5). An interested governmental entity may also request to be invited into the process. The federal aspiration behind the concept of the “lead” and “cooperating” agency is to attain, through the engagement of local government (i.e. state, local and tribal) expertise in the EIS process, an understanding of local issues, a resolution of local and federal conflicts and the joint shaping of plans and policies with respect to activities such as mining. Pursuant to the regulations applicable to “lead” agencies and CAs, created by the CEQ, the CA is required, among other things, to “[p]articipate in the NEPA process at the earliest possible time . . . [, to p]articipate in the scoping process . . . and [to, a]ssume on request of the lead agency responsibility for developing information and preparing environmental analyses including portions of the environmental impact statement concerning [those areas in] which the cooperating agency has special expertise” (40 CFR §1501.6). A memorandum of understanding (MOU) is prepared which serves as a framework for a cooperative relationship between the lead and the CA, defining their interests, roles and responsibilities.

To comply with NEPA, there are several approaches that will be considered: the preparation by the BLM of an environmental assessment (EA) and/or the preparation of an environmental impact statement (EIS), or a determination that a categorical exclusion applies obviating the need for either an EA or EIS. An EIS is a detailed statement that informs the decision-making agency, and the public, of the significant environmental impact of a proposed project on federal land and permits the formulation of “reasonable alternatives” that will avoid or mitigate such environmental impact “or enhance the quality of the human environment” (40 C.F.R. § 1502.1). Where it is anticipated that a mining operation may or will have a significant impact on the environment, as is often the case where a large mining operation is proposed, an EIS will be prepared. If, however, it is not clear whether the environmental impact will be significant, as may be the case in a small mining operation, the BLM will prepare an EA instead.

  • Categorical Exclusion: If the BLM determines that compliance with NEPA is not required, insofar as the proposed operations fall into a category that involves “actions which do not individually or cumulatively have a significant effect on the human environment,” then a categorical exclusion (known as a CX or Catex) will be found and, unless extraordinary circumstances exist, an EA or an EIS will not be required (40 C.F.R. § 1508.4; see 516 DM 2.3(A)). Nevertheless, in most cases of mineral development, the agency will determine that the preparation of an EA or an EIS will be necessary in order to comply with NEPA.

 

  • EA and FONSI: The EA, based on “sufficient evidence and analysis,” determines whether a significant impact on the environment may occur and if there are alternative methods available to reduce that impact (see 30 C.F.R. 1508.9). Upon the completion of the EA, if the BLM concludes that the mining operation will have no significant effect on the environment and makes a “Finding of No Significant Impact” (FONSI), then preparation of an EIS will not be necessary. If, however, the EA does demonstrate that a significant impact on the environment may occur, the BLM will go on to prepare an EIS as well. In some instances, the EA and FONSI are available for public comment.

 

  • EIS: The preparation of an EIS is a multi-step process that includes participation by other agencies and the public through a procedure known as “scoping,” i.e., an “early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action” (40 C.F.R. 1501.7). The scoping procedure is initiated after the publishing of a Notice of Intent by the BLM that notifies the public of the preparation of an EIS (40 C.F.R. § 1508.22). A draft EIS is initially prepared and submitted for review to the U.S. Environmental Protection Agency (EPA). The draft EIS is then made available for comment by other agencies and by the public (40 C.F.R. § 1503.1) and the BLM will respond to those comments when preparing the final EIS as provided in 40 C.F.R. § 1503.4. The BLM will ultimately make a final decision known as a Record of Decision that will govern the contents of the plan of operations and set forth requirements with respect to mitigation of impacts on the environment. The BLM may seek reimbursement for reasonable costs associated with the preparation of environmental analyses undertaken pursuant to NEPA (43 U.S.C. § 1734).

 

OTHER CONSIDERATIONS 

The BLM Land Use Planning: The BLM prepares land use plans (LUPs) that include resource management plans (RMPs) (plans prepared since 1985) and management framework plans (MFPs) (plans prepared prior to 1985) that must conform to provisions of FLPMA, specifically 43 U.S.C. §§ 1711-1712 and 43 C.F.R. Part 1600. An objective of these plans is to foster the FLPMA mandates of “multiple use” and “sustained yield.” In addition, the protection of the environment figures prominently in determining appropriate land management. The purpose of the RMP is “to guide and control future management actions and the development of subsequent, more detailed and limited scope plans for resources and uses” (43 C.F.R. § 1601.0-2). The RMP determines possible “multiple uses” on federal public land that share common characteristics, known as a planning area, and is often prepared in collaboration with other interested parties, including state, local and tribal governments and members of the public in order to achieve common objectives.

The preparation of a LUP triggers the necessity of preparing an NEPA analysis in the form of either an EA or an EIS, inasmuch as it is considered a major federal action. The plan will serve as guidance to the BLM with respect to the approval of future development proposals that affect federal public lands over the course of approximately 10 to 20 years. Any mineral development proposal must be in conformance with the applicable land use plan. If a proposed action does not conform to the pertinent LUP, the BLM can suggest modification to the initial proposal to bring it into conformance with the LUP. Alternatively, the BLM may amend the existing LUP in order to accommodate the proposed action. If neither a modification of the proposal or an amendment of the LUP is feasible the proposal will be rejected.

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Mining Overview Commentary plus sign

UNITED STATES OF AMERICA – FEDERAL MINING REGULATION

GENERAL

Minerals are an important and fundamental component of the economy of the United States of America (U.S.). According to the U.S. Geological Survey (USGS) Mineral Commodities Survey 2015, the leading minerals produced in the U.S. were copper, gold, iron ore, molybdenum and zinc, each producing over one billion dollars in revenue, with metal mine production alone being valued at approximately $31.5 billion. Numerous other minerals are subject to development including beryllium, titanium, potash, phosphate rock, sulphur and sodium, as well as industrial minerals such as crushed stone and gravel. Although the U.S. is a net exporter of 15 minerals, overall, less than one half of the U.S. demand for minerals is met by domestic mining.

U.S. federal mining law promotes mining exploration and development upon federal public lands open to mineral entry in 19 of its 50 states. Nevertheless, the development of a mining claim or the leasing of land for the purposes of mineral development must undergo rigorous environmental assessment prior to the commencement of operations. Behre Dolbear’s 2015 “Where to Invest in Mining” survey sets forth the U.S. as the third most attractive jurisdiction globally for mining investment for a second consecutive year. While noting the nation’s “high investor confidence”, the report also faults the “onerous permitting process that creates sufficient uncertainty to sometimes destroy the viability of new projects”.

The Fraser Institute’s Policy Perceptions Index included ratings for 13 U.S. states: Alaska, Arizona, California, Colorado, Idaho, Michigan, Minnesota, Montana, Nevada, New Mexico, Utah, Washington and Wyoming. Wyoming was the highest placed, with a position of 2nd out of the 109 jurisdictions included in the survey, closely followed by Nevada, which placed in 6th. California was the lowest rated state placing in 59th position.

PRINCIPAL LEGISLATION AND REGULATOR

American law is based upon the system of common law (i.e., judicial precedent) that originated in England, as well as statutory legislation. Decisions by courts and administrative agencies are rendered and statutes are enacted at each of the federal, state and local levels. Mining law, specifically, is highly regulated by statutory laws and regulations, which are subject to interpretation by the judicial system as well as administrative agencies. The primary piece of federal legislation permitting prospecting and the development of mines on federal public lands is the General Mining Law of 1872, as amended (GML) also known as the General Mining Act of 1872.

The GML is found in the United States Code (U.S.C.) and its implementing statutes in the Code of Federal Regulations (C.F.R.), specifically, 30 U.S.C. §§ 22-54 and §§ 611-615 and 43 C.F.R. Groups 3700 and 3800. The GML governs the mining of hard rock “locatable” minerals, that is, base, precious and certain industrial minerals such as gold, silver, lead and copper found on federal public lands open to mineral access. This law does not apply to certain “leasable” minerals (generally, certain industrial minerals) that include coal, sulphur, phosphate, sodium, potassium, natural gas and oil.

The right to mine “leasable” minerals can be obtained from the U.S. government, by lease only, and is primarily legislated through the Mineral Leasing Act of 1920, as amended (Leasing Act) (30 U.S.C. § 181 et. seq.) for public domain lands, the Acquired Lands Mineral Leasing Act of 1947, as amended (30 U.S.C. §§ 351-359) for acquired lands, the Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. § 1701 et seq.) and regulations set forth in 43 C.F.R Part 3500. Likewise, the development or purchase of salable minerals (generally, aggregate and quarry materials), such as sand, rock, and gravel are not “locatable” (except in rare instances) and fall outside of the purview of the GML; these are governed by the provisions of the Mineral Materials Act of 1947, as amended (30 U.S. Code § 601 et seq.; see 43 C.F.R. § 3600 et seq.) and the Surface Resources Act of 1955 (30 U.S.C. §§ 601-615; see 43 C.F.R. § 3830.11).

Other relevant mining legislation includes the Stock Raising Homestead Act of 1916, as amended (SRHA) (see 43 C.F.R. § 3814; Public Law 103-23) and the Agricultural Entry Act of 1914, as amended (30 U.S.C. § 121 et seq.; see 43 C.F.R. § 3813) both of which created split estates through the issuance of patents for surface lands and a reservation of subsurface mineral rights to the U.S. federal government; and the Federal Mine Safety and Health Act of 1977, as amended (Mine Act) (30 U.S.C. §801 et seq.), which sets forth mandatory mine health and safety standards and requires annual inspections by the U.S. Department of Labor's Mine Safety and Health Administration (MSHA) to monitor those standards.

The U.S. Bureau of Land Management (BLM), which is governed by the provisions of the FLPMA, is the federal agency primarily responsible for the management and protection of the vast areas of U.S. federal public land and its natural resources for current and future generations of Americans. The BLM, which operates within the U.S. Department of the Interior (DOI), manages the surface areas of most of these lands. In certain instances, however, other federal land management agencies may have surface jurisdiction, including the U.S. Forest Service, the National Park Service and the U.S. Fish and Wildlife Service, although much of the land administered by the latter two agencies is generally not open to mineral development. The sub-surface mineral estate of federal lands (and in some cases of non-federal lands where a federal mineral interest has been reserved (split estates)) is in nearly all cases managed by the BLM. The BLM seeks to carry out the mandates of FLPMA of “multiple use” and “sustained yield” with respect to these lands and their natural resources as defined in 43 U.S. Code § 1702(c) and (h). The BLM, with its various local state offices, is charged, inter alia, with carrying out the provisions of the GML, as well as the Leasing Act, through its Mining Law Administration program. The BLM is therefore responsible for overseeing the establishment of patented and unpatented mining claims for locatable minerals, as well as the issuance of most mining permits, licenses and leases.

GRANT AND FORMS OF MINERAL TITLE

The GML encourages U.S. citizens to explore, discover and develop, valuable mineral deposits on federal lands that are open to mineral entry. Mining claims may be established by U.S. citizens “who have reached the age of discretion under the law of their State of residence", and business organizations, e.g. corporations and partnerships, duly formed “under the laws of any state” (30 U.S.C. § 22; 43 C.F.R. § 3830.3). Non-U.S. citizens, except those who have undertaken the citizenship process, may not establish a mining claim on public lands under the GML(See 43 CFR § 3830.3).

Of the 50 states that comprise the US, only 19 states, many of which are situated in the western portion of the nation, are available for the location of mining claims on federal public land. These states are Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Louisiana, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. A mining claim can be located in these states as either a lode claim or a placer claim. Mill sites and tunnel sites, constructed in support of these lode or placer mining claims, can likewise be located. Lode mining claims are focused upon for the purposes of this commentary.

The GML provides for two forms of mining claims, the unpatented mining claim and the mineral patent. The mineral patent grants not only exclusive ownership rights to the extracted minerals located on public lands, but usually title to the land itself, thereby rendering the land private. The holder of an unpatented mining claim obtains only a possessory interest in the mining site; a right that is restricted to “prospecting, mining or processing operations and uses reasonably incident thereto;” management of the surface area and other resources thereon remain with the federal government (30 U.S.C. § 612 and 43 C.F.R. § 3712.1). In addition, the U.S. government may permit multiple uses of the same tract of land, for example by the miner of a Leasing Act mineral, to the extent that those uses do not “endanger nor materially interfere” with the ongoing mining activity of the holder of the unpatented mining claim site and vice versa (30 U.S.C. § 526). This possessory interest of the holder of an unpatented mining claim continues so long as the miner remains in conformance with applicable federal and state laws.

Unpatented Mining Claims: The GML and other relevant federal statutes law set forth provisions respecting the “discovery,” “location,” recording and maintenance of a mining claim site; essential elements necessary for the establishment of a mining claim right. Individual states are empowered to define additional requirements with respect to those claims that lie within the jurisdiction of that particular state. The reader should note that special statutory requirements are in place with regard to split estate land created under the Stock Raising Homestead Act of 1916 that includes the filing with BLM of a Notice of Intent to Locate prior to the initiation of exploration by a prospector who is not also the surface owner of land (Public Law 103-23).

 

  • Discovery: Pursuant to the GML, a miner may establish a mining claim, that is, a claimant may assert a right of possession on a parcel of public land with the accompanying right to discover, develop and extract a valuable hardrock mineral deposit (See 30 U.S.C. § 26). A mining claim cannot be established until there is a “discovery” of a valuable mineral deposit on federal land open to mineral entry, known as a “locatable” mineral deposit (See 43 C.F.R. §§ 3830.5 and 3830.10 et seq.). Federal statutes do not specifically designate which minerals constitute a valuable mineral, although 43 C.F.R. § 3830.12 sets forth characteristics attributable to locatable minerals. Whether a mineral is considered a valuable mineral deposit is ultimately subject to interpretation through the application of the “prudent man rule” and the “marketability test” (See Castle v. Womble, 19 L.D. 445 (1894), Chrisman v. Miller, 197 U.S. 313 (1905), and S. v. Coleman, 390 U.S. 599 (1968)). 43 C.F.R. § 3501.5 provides that a “[v]aluable deposit … means an occurrence of minerals of such character that a person of ordinary prudence would be justified in the further expenditure of his or her labor and means, with a reasonable prospect of success in developing a profitable mine.” An important decision by the DOI in Jefferson –Montana Copper Mines, 41 L.D. 321 (1912) on the issue of discovery states:

 

 To constitute a valid discovery upon a lode claim, three elements are necessary:

(1)       There must be a vein or lode of quartz or other rock-in-place;

(2)       The quartz or other rock-in-place must carry gold or some other valuable mineral deposit;  

(3)       The two preceding elements, when taken together, must be such that as to warrant a prudent man in the expenditure of his time and money in the effort to develop a valuable mine.

 

Except in rare instances of “uncommon varieties of mineral materials,” locatable minerals do not include salable minerals, such as clay, rock and gravel (see 43 C.F.R. § 3830.1 et seq.).

 

  • Location of lode mining claim sites: Once a discovery has been made on public land open to mineral entry, the miner must “locate” a mining claim in accordance with federal and state law. Many public lands including national parks and monuments, Indian and military reservations, wildlife refuges as well as campgrounds are deemed excluded and not open for mineral entry. 43 C.F.R. 3832.21 provides that a miner may “locate a lode claim for a mineral that:"

 

(i)        Occurs as veins, lodes, ledges, or other rock in place;

(ii)      Contains base and precious metals, gems and semi-precious stones, and certain industrial minerals, including but not limited to gold, silver, cinnabar, lead, tin, copper, zinc, fluorite, barite, or other valuable deposits; and

(iii)     Does not occur as bedded rock (stratiform deposits such as gypsum or limestone) or is not a deposit of placer, alluvial (deposited by water), eluvial (deposited by wind), colluvial (deposited by gravity), or aqueous origin.

 

Locating a claim is accomplished by identifying the mining claim through the distinct and clear demarcation of the boundaries of the lode claim and recording that and other required information, in the form of a notice or certificate of location, pursuant to federal and state law, as well as the regulations set forth in the C.F.R. (43 C.F.R. § 3832.1; see 30 U.S.C. § 28). The federal requirements that must be met in order to properly locate the mining claim are set out in 43 C.F.R. § 3832.11. However, both federal and state staking and other location requirements must be carefully followed. Generally, a discovery or location monument, as well as a stake at each corner of the mining claim must be affixed. A notice of location, containing the identity of the locator, the date of location, the type of site, a legal description of the site, as well as the name and/or number of the site, must be conspicuously posted at the claim site, in most cases at the point of discovery (43 C.F.R. § 3833.11; see 43 C.F.R. § 3832.12). The dimensions of the mining claim or site cannot exceed 1500 feet by 600 feet, more precisely, 1,500 feet in length along the vein or lode and no more than 300 feet on each side (30 U.S.C. § 23; 43 C.F.R. § 3832.22). Further requirements with respect to establishing extra-lateral rights to minerals in the vein lode or form are set forth in 43 CFR § 3832.21.

 

  • Recordation of mining claims: FLPMA requires that the locator record a copy of the location notice or certificate with the BLM within a period of 90 days after the date of location. In addition, if required by state law, the notice or certificate of location must be filed in the local county recording office. A processing fee, a one-time location fee, and an initial maintenance fee must be paid at the time of recording. In the event the mining claim is later amended or is transferred, recording requirements and fees will again apply (See 43 C.F.R. §§ 3830.21, 25, 3833.1, 3833.11, 3833.21, 3833.22 and 3000.12). Under certain circumstances, additional recordings of the notice or certificate of location may be required in other federal agency offices. A failure to timely record a valid mining claim and/or pay required fees, will result in the claim being deemed abandoned and void by operation of law (43 U.S.C. § 1744; 43 C.F.R. §§ 3830.91 and 3833.1(a)). Once the miner has complied with these requirements, the claimant will be entitled to exclusive possession of the mining claim for the purposes of development and extraction of locatable minerals, so long as the miner maintains the mining site in compliance with all applicable federal, state and local laws (30 U.S.C. § 26; see 30 U.S.C. § 28i).

 

  • Annual maintenance of the mining claim: In addition to paying an initial maintenance fee within 90 days of the location date, a claimant is required to pay an annual maintenance fee for the mining claim site “on or before September 1st of each year in order to maintain a mining claim or site for the upcoming assessment year” (43 C.F.R. 3834.11) The payment of the maintenance fee satisfies the annual assessment work requirement set forth in FLPMA (43 C.F.R. § 3834.11). A waiver of payment of the annual maintenance fee is available to certain qualified miners, including “a small miner,” i.e., a miner holding 10 or fewer mining claims nationwide (43 C.F.R. § 3835.1 et seq.). A small miner who is exempted from paying the annual maintenance fee must instead perform annual assessment work or make improvements to develop the mining claim. Annual assessment work may include, but is not limited to, drilling, excavation or preparation of geological surveys in the sum of at least $100 (43 C.F.R. §3836.10 et seq.). In addition, there must be a timely filing of annual FLPMA documents with BLM and the appropriate state office, as required (see 43 U.S.C. § 1744; 43 C.F.R. §§ 3835.30 et. seq. for Affidavit of Assessment Work and Notice of Intent to Hold (FLPMA documents)).  All required annual assessment work must be completed by noon, September 1st; however, federal and state filing deadlines may vary depending on the document to be filed. A failure to timely comply with any aspect of the above requirements may result in the mining claim being forfeited and deemed void by operation of law (43 C.F.R. § 3830.91, §§ 3835.91-3835.93, § 3836.15, and 43 U.S.C. § 1744). Other grounds for forfeiture are also set forth in 43 C.F.R. § 3830.91. It should be noted that royalties are not presently payable on production income resulting from a mining claim. Nevertheless, there have been attempts made, as yet unsuccessful, in the U.S. Congress to pass legislation requiring the payment of royalties.

 

An interest in an unpatented mining claim may be transferred, in whole or in part. Transfer documents must conform to the state law of the jurisdiction in which the mining claim site lies. In addition, a notice of transfer must also be filed, and a processing fee paid, at the local BLM office (43 C.F.R. Part 3833, Subpart C; see Forbes v. Gracey, 94 U.S. 762 (U.S. Sup. Ct. 1876)). 

Mineral Patents: A patented mining claim grants the possessor ownership rights to once federal public land, as well as its locatable minerals pursuant to the GML. Application procedures for the acquisition of a mineral patent are found in 43 C.F.R. Part 3860. The application is subject to an essentially two-step procedure, which includes an adjudication process that determines whether the application has fulfilled numerous requisites and a mineral examination process. The application requirements include proof of a “discovery”; the preparation of a survey by a Deputy U.S. Mineral Surveyor; the publishing of a “notice of intent to patent”; a certificate or abstract of title showing clear title; a certificate of expenditures and improvements of not less that $500; and a demonstration that the applicant is current with the payment of maintenance fees or assessment work, and the payment of fees. Once the application is deemed compliant, a mineral examination process is undertaken in order to determine the validity of the “discovery” and, if the “discovery” is confirmed, a mineral report is prepared. The application is forwarded to the Secretary of Interior for a final determination on whether all requirements have been met. A patent is ultimately issued by the BLM and the land is available for purchase by the applicant. Nevertheless, it is essential to note that since October 1, 1994, by Acts of Congress, a budget moratorium has prevented the acceptance of new patent applications by the BLM.

Leasable Minerals: The Leasing Act establishes a system for leasing land from the Federal government for the mining of certain minerals that are generally found in bedded deposits and which are not subject to a mining claim pursuant to the GML. Such permits and leases grant the holder an exclusive right to extract a valuable leasable mineral, but no rights to the land (43 C.F.R. § 3501.16). The regulations set forth in 43 C.F.R. Part 3500 pertains to each of the following leasable minerals:

[C]hlorides, sulfates, carbonates, borates, silicates or nitrates of potassium or sodium and related products; sulphur on public lands in the States of Louisiana and New Mexico and on all acquired lands; phosphate, including associated and related minerals; asphalt in certain lands in Oklahoma; and gilsonite (including all vein-type solid hydrocarbons) (43 C.F.R. § 3501.5).

The permit or lease must conform to applicable land use plans. Furthermore, environmental protection requirements must be met by BLM prior to the issuance of the mining permit or lease (43 C.F.R. § 3501.17) (see United States of America – Federal Environmental Regulation). Pursuant to the Leasing Act, a miner issued a permit, license or lease by the BLM may conduct mining operations on federal land or, in some cases, on land that is state or privately owned but subject to federal subsurface mineral rights (split estates).

The BLM may issue the following types of mineral use authorizations:

 

  • Prospecting Permit and Preference Rights Lease: A prospecting permit is issued for the purposes of prospecting and exploration on sites where a discovery of a valuable deposit of a leasable mineral deposit is not known to exist. If that particular mineral deposit is discovered and other qualifications are met, a preference rights lease will be issued to the miner on a non-competitive basis (43 C.F.R. 3501.10 (a) and (c)).

 

  • Exploration License and Competitive Lease: An exploration license may be issued to explore a potential leasable mineral site where the valuable deposit of a leasable mineral is known to exist. Leases on those sites are presented for sale via a competitive bidding process (43 C.F.R. 3501.10).

 

A mining lease or permit may be held by an adult U.S. citizen (or the legal guardian or authorized trustee of a minor citizen), an association of adult U.S. citizens, as in the case of a partnership or trust, a corporation duly incorporated under federal or state (or territory) law, as well by certain other individuals and entities as more fully described in 43 C.F.R. § 3502.10 (see 30 U.S.C. § 184). A citizen of a foreign country may not hold a mining lease or permit, “[h]owever foreign citizens may hold stock in United States corporations that hold leases or permits if the laws, customs, or regulations of their country do not deny similar privileges to citizens or corporations of the United States” (43 C.F.R. § 3502.13).

Lease terms generally vary from 10 to 20 years depending on the mineral in question. There is also a limitation to the amount of acreage that may be permitted or leased depending on the type of mineral mined (43 C.F.R. § 3503.37). Pursuant to the Multiple Mineral Development Act of 1954, as amended (30 U.S.C. Ch. 12), a mining claim may be located under the GML and mineral leases may be issued for mining on the same tract of public land. Each mining operation must be conducted in such a way as to “avoid damage to any known deposit” or “endanger or materially interfere” with other mining operations (30 U.S.C. § 526; see 43 C.F.R. § 3501.16).

In addition to processing and filing fees, annual rentals for prospecting permits and mineral leases, at rates that vary depending on the size of the mining claim and mineral involved, are payable to the BLM (43 C.F.R. § 3504.15). The failure to timely pay rental may result in the automatic termination of a prospecting permit or cancellation of the miner’s lease (43 C.F.R. § 3504.17).  Royalties are also payable for any production income from minerals under lease. Such royalties are payable to the Minerals Management Service, a bureau of the DOI, which is involved in the collection of mining revenues. The amount of royalties collected will depend on various factors, including the type of mineral being mined, as well as the terms of the lease (See 43 C.F.R. §§ 3504.20 - 3504.26). 

Distinct requirements for prospecting permits and leases for the following minerals have been individually codified: coal pursuant to 30 U.S.C. §§ 201-209, phosphates pursuant to 30 U.S.C. §§ 211-214, sodium pursuant to 30 U.S.C. §§261-263, sulphur pursuant to 30 U.S.C. §§ 271-276, potash pursuant to 30 U.S.C. §§ 281-287, oil and gas pursuant to 30 U.S.C. §§ 221 to 222-237, oil shale pursuant to 30 U.S.C. §§ 241-242 and coal pursuant to 30 U.S.C. §§ 201-209.

DEVELOPMENT CONSIDERATIONS

FLPMA requires that any development of mineral resources on federal land must prevent “unnecessary or undue degradation” and “reclaim disturbed areas” as defined in 43 C.F.R. § 3809.5 (43 C.F.R. 3809.1(a)). Before commencing mining operations, a miner of a locatable mineral must adhere to the regulations pertaining to surface management of federal public land. These regulations are found in 43 C.F.R. Part 3809 and are known as the “3809 regulations.” The 3809 regulations do not pertain to leasable or salable minerals (see 43 C.F.R. Parts 3400, 3500 and 3600 for regulations for leasable and salable minerals). The BLM has developed three classifications with respect to mining operations and surface disturbance: casual use, notice-level operations and plan-level operations (43 C.F.R. § 3809.10). 

  • Casual use: involves activities that cause “no or negligible disturbance of the public land lands or resources” (43 C.F.R. §3809.5). In the case of casual use, the BLM does not require notification but does require the undertaking of a reclamation process if any disturbance is created. Examples of casual use, including collecting specimens by using non-motorized methods such as hand tools, are set forth in 43 C.F.R. § 3809.5.

 

  • Notice-level operations: Notice-level operations require the submission of a mining notice to BLM 15 days prior to starting “exploration causing surface disturbance of 5 acres or less of public lands on which reclamation has not been completed” (43 C.F.R. § 3809.21(a)). By definition, “[e]xploration means creating surface disturbance greater than causal use that includes sampling drilling, or developing surface or underground workings to evaluate the type, extent, quantity, or quality of mineral values present” (43 C.F.R. § 3809.5). The mining notice must comply with 43 C.F.R. § 3809.301. The BLM will determine if the mining notice is complete or, alternatively, that a miner may not conduct the activities set forth in the notice insofar as the miner cannot “prevent unnecessary or undue degradation” to the land (43 C.F.R. § 3809.311). Notice-level operations may be conducted for two years and the notice may be extended for an additional two years, with additional extensions available (43 C.F.R. §§ 300 and 3809.333). A financial guarantee must be provided (43 C.F.R. §§ 3809.500, 3809.503, 3809.551 and 3809.552) and reclamation of the disturbed surface is required (see 43 C.F.R. §§ 3809.420).

 

  • Plan-level operations: Plan-level operations involve surface disturbance of more than five acres of public land or the removal of “1,000 tons or more of presumed ore for testing” for “bulk sampling” and necessitates the submission of a “plan of operations” to the appropriate local BLM office, as well as BLM approval (43 C.F.R. § 3809.10 and 3809.11). Although, no particular form is required, the plan must show that no “unnecessary or undue degradation” to the land will be caused as a result of the mining operation to be undertaken. In addition, the plan of operation must provide a) operator information; b) a description of the proposed operation, including, but not limited to, where appropriate, detailed maps, a beginning-to-end schedule of operations, and road access plans; c) a detailed reclamation plan; d) a monitoring plan that details future compliance with the plan of operation (after approval) and environmental regulations, which requires a myriad of additional information, including information helpful in determining potential environmental problems and corrective actions, and programs for the monitoring of the environment, such as air, water, and noise quality plans; and e) an interim management plan setting forth the measures to be undertaken in order to prevent “unnecessary and undue degradation” to the land in the event of a temporary closure of mining operations, for example, isolating or controlling toxic materials (43 C.F.R. §§ 3809.401(b)).

 

The BLM may require the miner to provide additional “baseline and operational environmental information,” for example, information on geology and hydrology. This information is used in determining whether the plan of operations is in compliance with the National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C. §4321, et seq.) and FLPMA mandates (43 C.F.R. §§ 3809.401(c)(1)). In addition, the BLM may request an estimate of reclamation costs and, after review of that estimate, make a determination of the final reclamation cost, which will dictate the amount of the financial assurance that must be secured as a guarantee that reclamation will be performed (43 C.F.R. § 3809.401; see 43 C.F.R. § 3809 Part 500).

Once the plan of operations is submitted, it will be published and open for public commentary. Within 30 calendar days of receiving the miner’s plan of operations, the BLM will review the submitted material and then notify the miner on whether the plan submitted is complete and meets all the content requirements under 43 C.F.R. § 3809.401(b). If the BLM determines that the plan does not comply with the requirements of § 3809.401(b), the miner will be required to complete the plan as directed by the BLM. Alternatively, the BLM may determine that the plan is complete in that it satisfies the requirements of § 3809.401(b), however, the plan is not subject to BLM approval until one or more additional measures have been undertaken. Very importantly, such additional measures may include the completion by the BLM of an environmental review as per the dictates of NEPA (See United States of America – Federal Environmental Regulation).

Once the plan of operation is completed, that is, the requisites of 43 C.F.R. § 3809.401(b) have been met, NEPA requirements have been complied with, including the preparation of an environmental assessment and/or an environmental impact statement and public commentary has concluded, BLM will either approve the plan of operations, require specific amendments to the plan, or disapprove (or withhold approval of) the plan for reasons that may include that the mining operation “would result in unnecessary or undue degradation to public lands” (43 C.F.R. § 3089.411). Any adverse decisions may be appealed (43 C.F.R. § 3809.800).

Once the plan of operations is approved and a financial guarantee has been provided, mining operations may commence (43 C.F.R. § 3809.412). BLM will conduct on-site inspections to confirm that the mining operations follow the surface management requisites set forth in the 3809 regulations (43 C.F.R. § 3809.600). It must be pointed out that the process to obtain the various required permits and approvals can be very time-consuming and often takes years to achieve. There are, however, time limitations that may be requested by the miner applicant (40 C.F.R. § 1501.8(a)).

OTHER CONSIDERATIONS

  • The U.S. federal government recognizes 566 Indian tribes and Native Alaskans. Both surface areas and subsurface mineral estates of land are held in trust for these tribes and Native Alaskans and are administered by the Bureau of Indian Affairs. Tribal lands are not open to mining claims. Nevertheless, tribal authorities may lease tribal land pursuant to the Indian Mineral Leasing Act of 1938 (25 U.S.C. § 396 et seq.), subject to the approval of the Secretary of the Interior. Furthermore, the Indian Mineral Development Act 1982 (25 U.S.C. §§ 2101-2108) permits Indian tribes to enter into private negotiations and joint ventures with mineral developers for the exploration and extraction of minerals subject to BLM's approval.

 

  • The U.S. Forest Service regulates surface areas of National Forest system. 36 C.F.R. § 228 Part A sets forth regulations on prospecting for and mining of locatable minerals on these federal lands. Although management of these lands remains with the Secretary of the Interior, these regulations require that mining operations be conducted in a manner which “minimize[s] adverse environmental impacts on National Forest System surface resources” (36 C.F.R. § 228.1). These regulations include the requirements for plans of operation, if the proposed operation “might cause significant disturbance of surface resources” (36 C.F.R. § 228.4).

 

  • The U.S. Securities and Exchange Commission (SEC) regulates reporting obligations of companies under their jurisdiction. SEC Industry Guide 7 requires the disclosure of provable and probable reserves by publicly owned mining companies.  In addition, the Dodd-Frank Wall Street Reform and Consumer Protection Act, section 1503 requires public mining companies to disclose mine safety and health violations to the SEC.

 

ENVIRONMENTAL REGULATIONS

See United States of America – Environmental Overview Commentary. 

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