May 16, 2023 - The Department of the Interior today released a Solicitor’s Opinion (Opinion) to outline approaches that applicants may take to site waste rock and tailings facilities on federal lands under the General Mining Act of 1872 (Mining Law) to enhance permitting certainty and consistency for mining operators. The Department also announced completion of a Court-remanded analysis for the Thacker Pass mine approval in Nevada, consistent with the Opinion.
“As we work across the Biden-Harris administration to provide clarity for the permitting and exploration of energy resources in the United States, today’s Opinion will support the timely review of mining proposals on federal lands and is one step of many the Department of the Interior is taking to update guidance for mining companies to reflect the realities of the 21st century,” said Deputy Secretary Tommy Beaudreau, who serves as chair of the Interagency Working Group on Mining Regulations, Laws, and Permitting. That group, comprised of experts in mine permitting and environmental law from across the federal government, is working on recommendations to update the Mining Law and reviewing existing mining laws, regulations and permitting processes.
The Mining Law allows development of valuable minerals where there has been a discovery. Applicants may also use valid claims for mining-related activities, such as for waste rock or tailings. The new Opinion acknowledges recent judicial decisions affirming that the Mining Law and the relevant Bureau of Land Management regulations do not allow for approval of those facilities on federal lands where there is no evidence of mineral discovery. In these instances, the Opinion provides a number of options companies may choose, including submitting additional evidence of discovery on the relevant mining claims; redesignating the relevant mining claims as mill sites (areas that support a mine, but are subject to different standards); applying for a permit, lease or right-of-way from the BLM; or seeking a land exchange to gain title to the land.
The Opinion confirms that BLM is not required to subject every claim without evidence of discovery in a proposed plan of operations to a detailed and independent examination of the relevant mineral content, consistent with longstanding practice. The Opinion applies only to the waste rock and tailings facilities at issue in recent opinions, and withdraws previous Solicitor’s Opinions on this topic, determining them to be materially flawed.
In February 2023, the District Court for the District of Nevada largely upheld the approval of the Thacker Lithium Mine in Nevada, while remanding to the BLM an analysis of mineralization on the claims being used for waste rock and tailings. The BLM has updated the record to reflect evidence of mineralization on nearly all of the claims underlying the waste and tailings sites. Materials can be reviewed on BLM's National NEPA Register webpage.