10/19/2020 - Regulatory Tracker

Forest Service Locatable Minerals Regulations

by EELP Staff

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Why It Matters

 The federal government owns approximately 30% (700 million acres) of the United States’ onshore subsurface mineral estate. This includes the right to mine the natural resources underground, including “locatable minerals.” Locatable minerals include most hardrock minerals such as gold, silver, lead, mica, gypsum, and gemstones. They do not include “salable minerals” (e.g., sand, stone, and gravel) or “leasable minerals” (e.g., oil, gas, coal, and shale).

Approximately one billion dollars’ worth of hardrock minerals are extracted from these lands each year. These extractive activities also sometimes cause adverse environmental impacts including acid mine drainage, erosion, sedimentation, and the release of cyanide and other chemicals.

Current Status

On September 13, 2018, the Forest Service issued an Advance Notice of Proposed Rulemaking, soliciting comment on the classification of locatable mineral operations, the process of submitting and reviewing a plan of operations, and the process for modifying such plans.

History

May 10, 1872 Ulysses S. Grant signs the General Mining Act of 1872, much of which still governs mineral extraction in the United States.

July 23, 1955 Congress enacts the Multiple Surface Use Act, detailing the classification of locatable minerals.

Dec. 31, 1970 Congress declares it is federal policy to encourage private development of mineral resources in the United States.

Aug. 28, 1974 The Forest Service adopts regulations governing locatable and other minerals and requiring mining operations to minimize adverse environmental effects.

1999 The National Research Council issues a report examining the adequacy of the hardrock mining regulatory regime and identifying areas for improvement.

June 6, 2005 The Forest Service issues a minor revision to the 1974 regulations regarding when a plan of operations is required from a developer.

Jan. 2016 The Government Accountability Office issues a report reviewing the hardrock mining plan review process, recommending that BLM and the Forest Service “improve the quality of mine plan submissions.”

Trump Era

March 28, 1017 President Trump issues Executive Order 13,783, “Promoting Energy Independence and Economic Growth,” directing agencies to avoid burdening domestic energy production.

Dec. 20, 2017 President Trump issues Executive Order 13,817, “A Federal Strategy To Ensure Secure and Reliable Supplies of Critical Minerals.” The order defines critical minerals as those that are “essential to the economic and national security of the United States” and have a supply chain that is vulnerable to disruption. The order directs agencies to streamline permitting processes and address vulnerabilities in those supply chains.

Sep. 13, 2018 The Forest Service publishes an Advance Notice of Proposed Rulemaking, opening a one-month comment period in preparation for proposing a rule.  The notice identifies several areas for potential changes, including creating a uniform application process for potential extractors, ensuring mining plans are complete before environmental review commences, and increasing consistency with corresponding Bureau of Land Management regulations.

The notice requests comments on a number of specific areas, including the classification of locatable mineral operations, the process of submitting and reviewing a plan of operations, and the process for modifying such plans.

The notice does not yet include specific proposed changes. But because the notice is responding to executive orders directing agencies to expedite environmental review and remove obstacles to development, critics worry that the proposed rule will reduce public process and other requirements designed to improve the quality of mining plans and operations. Some industry organizations, on the other hand, believe the notice is a sign of progress in eliminating unnecessary burdens on mineral development.

June 2, 2020 Senator Lisa Murkowski, Representative Rob Bishop and others send a letter urging Interior Secretary David Bernhardt and Secretary of Agriculture Sonny Perdue to finalize rules that would facilitate the domestic production of locatable minerals on federal lands.