WASHINGTON (CN) — A D.C. Circuit panel heard a challenge on Tuesday to a 2003 rule that allows mining companies to claim an unlimited amount of land around a mining site for mining-related activities like chemical processing and waste dumping.
The challenge, brought by a coalition of environmental organizations in 2009, centers on whether a section of the 1872 Mining Law — from which the 2003 rule derives — unambiguously limits mining companies to a single, five-acre mill site.
If there is any ambiguity, the three-judge panel indicated, the court will have to defer to the Interior Department’s decision, as per the Chevron doctrine, a 40-year-old legal framework that instructs judges to defer to an agency’s interpretation in such cases.
However, the Supreme Court is set to hear oral arguments regarding the doctrine on Wednesday in a challenge brought by small government idealists that may find success with the high court’s conservative majority.
While the potential regulatory shakeup could affect the panel’s future decision-making process, the three judges, U.S. Circuit Judges Gregory Katsas, Florence Pan and Douglas Ginsburg, must still adhere to Chevron until the Supreme Court decides.
“As of today, Chevron still applies,” said Roger Flynn, an attorney for the Western Mining Action Project.
Flynn represented plaintiffs Earthworks, the Western Shoshone Defense Project, High Country Citizens’ Alliance, Great Basin Resource Watch and Save the Scenic Santa Ritas.
He argued there is no ambiguity in the 1872 law and that Congress did not intend for mining companies to be able to claim thousands of acres surrounding a mine, in some cases “quadrupling the mine’s size.”
In 1954, the Bureau of Land Management made that a possibility, issuing guidance that allowed mining companies to claim more than one mill site per mining claim.
Former Interior Department Secretary Bruce Babbitt reversed that practice in 1997, issuing an opinion that expressly advised that each mining claim was limited to one mill site claim, and that companies could only acquire more land through other means like land exchanges or acts of Congress.
Babbitt’s opinion led to a 1999 proposed rule, which was reversed in 2003 under former President George W. Bush.
Flynn argued that, when the reversal came under 2003, there was no opportunity for public comment on an issue that would have significant ramifications for the country, particularly in the West.
Between 2010 and 2014 the Land Bureau and U.S. Forest Service approved 68 new mining plans on federal land across 12 Western states, including Alaska, totaling 35,945 acres, according to a 2017 Government Accountability Office report.
While newly approved mines in Arizona, New Mexico and Colorado appear to have use limited acreage (four mines in Arizona occupied 52 total acres, two in New Mexico used 38 acres and three in Colorado used 32 acres) mines in Nevada and Wyoming went well beyond.
In Nevada, 11 approved mines occupied 16,600 total acres. In Wyoming, 21 projects were granted 17,920 acres. Utah, with the third-most projects, received 674 acres for eight projects.
Judge Pan, a Joe Biden appointee, appeared willing to agree with Flynn that Congress could not have intended for mining land use to “go to infinity,” but stressed that his position was utterly dependent on there being no ambiguity in the 1872 law.
“If it is ambiguous, we have to defer to the agency,” Pan said.
Katsas, a Donald Trump appointee, wanted textual evidence that Congress wanted to limit mill site claims to five acres but did not feel the 1872 law provided that.
“You have to read into the statue for something that isn’t really there,” he said.
Brian Toth, a Justice Department attorney representing the Interior Department, urged the court to accept the 2003 interpretation as the best analysis of Congress' intent.
The statue, in his view, clearly aimed to limit the size of each claim to just five acres without any limit to the number, so that mining companies would have to justify the necessity of each additional claim.
Pan expressed doubt that a 19th century Congress considered and approved of the idea that companies could make unlimited claims.
Elizabeth Dawson, an attorney of firm Crowell Moring, represented the National Mining Association as an intervenor in the case. She argued that there was no ambiguity whatsoever.
“The court can and should determine the law does not limit the number of claims, so long as they are related to mining,” Dawson said. “Congress wanted room for growth.”
Ginsburg, a Ronald Reagan appointee, appeared willing to accept that position.
“It’s likely Congress never contemplated this,” he said. “They didn’t put a limit because they didn’t think there should be one.”
Follow @Ryan_Knappy
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
