By Daniel Jorjani
I’ve noticed a tendency over the years I’ve served at the Department of the Interior. Former mining towns — which can trace much of their wealth and land ownership to the 1872 Mining Law making certain federal lands available for mining — balking at nearby mine operations and adopting a “not in my back yard” posture to halt those activities through lawsuits, implicitly but necessarily, working to shift those operations to someone else’s neighborhood.
This tactic is familiar: proponents of changing a law do not succeed in accomplishing their goal through the representative democracy process and — having failed to persuade legislators to change the law — the advocates turn to the judicial branch to try to gut the offending law. In context of the Mining Law, the town attempts to radically revise a 150-year-old grant of rights by reversing the department’s straightforward application of that law.
There is nothing illegitimate about asking courts to settle legal disputes, and statutes have no doubt been subjected to flawed interpretations that judicial review can highlight and resolve. But in this case, the proponents of reinterpretation are not simply petitioning the courts to settle a legal dispute, they are attempting to subvert the Mining Law’s longstanding grant of rights to use open lands to develop minerals. And what happens if such arguments win the day and mining operations cease to exist on our federal lands here in the United States? Mining doesn’t stop, of course, it simply moves somewhere else. That’s bad for the environment. Unlike many other countries, the United States has strong environmental laws enforced at multiple levels of government. Moving mineral development abroad also leads to the loss of associated American jobs, where employees are protected by robust labor laws.
We know that mining and its associated employment will move abroad because we simply cannot live without mineral production. Minerals produced under the Mining Law include, among many others, copper, silver, gold, lead, zinc, molybdenum and uranium. The United States is already import-reliant for 31 out of 35 critical minerals.
President Donald Trump and his administration are working to encourage the identification of new sources of critical minerals, increase exploration and mining activities, and streamline leasing and permitting processes to expedite, among other things, the exploration, production and processing of critical minerals.
Of course, citizens are right to pay attention to the natural environment and to the effects mining can have on the landscape, vegetation, wildlife and recreation. The government rightfully prosecutes abuses of the laws that govern mining and protect our environment from unnecessary harm. But in this case, the aversion to local mining is not supported by the facts.
The United States has a multitude of federal environmental laws that provide transparency and protection for Americans. These include the Clean Air Act, the Clean Water Act and the National Environmental Policy Act, to name just a few. These laws help federal, state, and local regulators address environmental concerns and minimize impacts of concern. It’s not a coincidence that there have been no Superfund sites associated with mining operations under the Mining Law since the Bureau of Land Management began regulating them in 1980.
Congress can and has considered reforms to the 1872 Mining Law, but this administration is acting within the scope of its authority under that law to safely and effectively advance the production of minerals domestically, as a good steward of federal resources and a good neighbor enforcing strong regulatory controls.
I am therefore pleased that the Department of the Interior Solicitor’s office is able to further the administration’s goals with its August 17 issuance of a legal opinion (M-37057) that builds on prior analyses of the Mining Law and clarifies the legal principles that support the department’s longstanding application of that law. The opportunity for citizens to access and use our country’s public lands to develop minerals has contributed to America’s progress and historical innovation. I am hopeful that our work at the Solicitor’s Office will reaffirm and advance the department’s commitment to protecting and managing the nation’s natural resources for the benefit of the American people.
Daniel Jorjani is solicitor of the U.S. Department of the Interior.
