by Kerry Shapiro
As reported earlier this week in this blog, the recent Ninth Circuit Court of Appeals decision in Center for Biological Diversity v. Salazar allowed a uranium mine on federal lands in Arizona to re-open after being idled for seventeen years absent any new federal approval or supplemental environmental review. This decision is notable on its own, but carries added significance in California, where it now highlights a potential conflict between federal and state law regarding idle mines and the resumption of mining operations at such mines.
California recently amended a portion of the Surface Mining and Reclamation Act (“SMARA”), Pub. Resources Code section 2710 et seq., to limit the maximum amount of time that a surface mine may remain idle before being required to commence reclamation of the mine site. Specifically, under the “idle mine” provisions in Public Resources Code sec. 2770(h)(2), surface mining operations may obtain what is known as an “interim management plan” or “IMP” that would allow the mine to remain idle for a period of five years with the possibility of having the IMP potentially renewed for two five year renewal periods, for a maximum of fifteen years of allowable idleness before reclamation must be commenced. After this period, reclamation must be commenced.
In contrast to SMARA, the Ninth Circuit’s ruling in CBD v. Salazar makes clear that extended periods of idleness — in this case seventeen years — are allowable under Federal law, including the Federal Land Policy and Management Act (“FLPMA”) and the Bureau of Land Management’s (“BLM”) surface management regulations located at 43 C.F.R. Part 3809, provided that the operator or owner maintains the mine in accordance with the idle mine portion of the plan of operations. The Ninth Circuit made it clear in the CBD decision, however, that no new plan of operations is required to restart mining operations, and that no updated NEPA review was required.
The implication of this ruling is clear: Any mining project on federal lands in California, which must comply both with federal mining laws as well as SMARA’s reclamation provisions, are confronted with conflicting legal regimes. Under federal law, mines can be designed to and actually enter into prolonged periods of idleness, with no defined quantifiable time limit as to the number of years, absent any impact on the underlying approval for the mine. In contrast, under recent amendments, SMARA now limits mines to a maximum of up to fifteen years of idleness after which reclamation must be commenced.
It is the author’s opinion that the SMARA IMP renewal provisions that mandate reclamation within fifteen years of idleness or possibly sooner, may now be in conflict with federal law allowing indefinite idleness, and also promoting the location of mining claims and the development of mineral resources (see, e.g., 30 U.S.C. 21a, promoting the private development of mineral resources). While the State may certainly enact laws that supplement Federal law, it cannot legislate in such a way as to frustrate or interfere with a Federal legislative scheme. Here, the current IMP renewal provision under SMARA may now constrain and conflict with federal land use decisions allowing for longer periods of idleness. Indeed, the SMARA IMP renewal provision may cut against SMARA itself, which states that its policy is also to promote the “production and conservation of minerals[.]” (See Pub. Resources Code sec. 2712(b).) Further, this conflict raises potentially troubling questions regarding the Memorandum of Understanding in place between the Federal government and the State of California that allows SMARA, and in particular the reclamation plan provisions, to apply to mining on federal lands.
The current SMARA IMP renewal provisions also run counter to the oftentimes cyclical nature of many sectors of the mining industry, which can be driven entirely by intermittent demand for certain minerals. By imposing a somewhat arbitrary, flat, 15-year maximum period of idleness, the IMP renewal provision under SMARA fails to account for the often significant periods of time in which demand for particular minerals drops–as evidenced directly by the 17-year period of idleness for Denison’s uranium mine in the CBD case due to low uranium prices. If SMARA is truly intended to promote the protection and development of mineral resources, it should correctly reflect how the markets for the State’s mineral resources actually behave.
Mine owners and operators on federal lands in California may now be faced with a challenge. Technically, state law prohibits periods of idleness over fifteen years, but federal law as recently determined by the Ninth Circuit Court of Appeals, allows longer periods of idleness as long as the reclamation provisions in a federally-approved plan of operations allows for it, with no set maximum. We believe that owners or operators facing this conflict need to work closely with the federal government to ensure their plans of operations are properly documented regarding periods of idleness and criteria for remaining idle. In addition, mining interests in the State should seek to remedy this potentially inconsistent scheme under SMARA.
Kerry Shapiro is a partner at Jeffer Mangels Butler & Mitchell LLP and co-chairs the Firm’s Building Materials Practice. He also serves as Chair to the Legal Committee of the California Construction and Industrial Materials Association (CalCIMA). Kerry has a comprehensive government, land use, environmental, and natural resources practice, with extensive experience working with SMARA, CEQA, the Mining Law of 1872, FLPMA, the Mineral Materials Act, NEPA, and the ESA, in relation to various entitlements and public land matters and related litigation, at federal, state, and local levels. For over 20 years, Kerry has represented the construction and building materials industry on mineral extraction and land development projects, and has secured entitlements for the largest federally-approved sand and gravel project in the United States, obtained the first-ever vested rights confirmation from the State of California for the largest construction aggregate deposit in California, and successfully represented clients before the Ninth Circuit Court of Appeals on federal endangered species and mining law matters. Contact Kerry at KShapiro@jmbm.com or 415.398.8080.