New Mexico Supreme Court to Determine if Copper Rule Prevents, Rather Than Encourages, Ground Water Pollution

Posted on September 23, 2016 by Thomas Hnasko

The New Mexico Water Quality Control Commission enacted what is arguably the most comprehensive copper mine remediation rule in the country.  The Copper Rule requires copper mines to uniformly implement prescriptive measures of pollution control and to protect ground water at “foreseeable places of withdrawal.”  But does the Copper Rule really prevent pollution, as required by the New Mexico Water Quality Act?  Not so, say the Attorney General and various NGOs, who appealed the case to the New Mexico Court of Appeals.  They claimed that the Copper Rule’s uniform monitoring criteria, which require the placement of a monitoring well network as close as practicable around the perimeter of mine units, does not sufficiently protect ground water and therefore fails to satisfy the Water Quality Act’s mandate that contaminant concentrations not exceed permissible standards at places of withdrawal.  The Court of Appeals affirmed the Commission’s rule-making in Gila Resources Information Project v. N.M. Water Quality Control Comm’n, holding that the determination of a “place of withdrawal” has always been and remains a matter committed to the Commission’s discretion. [Link to Case.] 

The New Mexico Supreme Court will now consider whether the New Mexico Water Quality Control Commission has the authority, under the Water Quality Act, to adopt the regulations imposing prescriptive pollution controls and defining by rule, rather than on a case-by-case basis, the type of monitoring controls which essentially define protectable ground water as that existing on the exterior of active mine units.  After a number of swings of the bat, the petitioners in the Supreme Court have refined their arguments. They now claim that the Water Quality Act requires a case-by-case determination of a place of withdrawal, based on particular aquifer characteristics, rather than a definition derived by rule.  To succeed with this challenge, the petitioners must overcome the legislature’s mandate, in the 2009 amendments to the Water Quality Act, that the Commission adopt uniform monitoring requirements for the entire copper industry.  The battle seems to be whether the Copper Rule is sufficiently flexible to protect all places of withdrawal – regardless of where located – or whether the rule imposes a de facto definition of a place of withdrawal based on criteria that may not be tailored specifically to the aquifer characteristics at a particular site.  Oral argument is set for September 28, 2016.

The California Supreme Court Hoovers Up More Pieces of the Mining Law of 1872

Posted on September 1, 2016 by James Holtkamp

Once both a paradigm of brevity in the federal code and a fertile source of work for generations of mining lawyers, the Mining Law of 1872 has been picked away at (pun intended) for many years. The romance of throwing a pack and a pick on a mule, nailing an old tobacco tin to a post with a location notice, and wresting riches from your very own mining claim is largely gone. The restrictions in federal and state law on surface disturbances from mining have made operations by individuals on mining claims more anachronistic than ever.

On August 22, 2016, the California Supreme Court knocked off another big chunk when it unanimously held that California’s ban on suction mining for gold is not preempted by the Mining Law. People v. Rinehart, No. S222620 (Aug. 22, 2016). Mr. Rinehart was convicted of engaging in suction dredge mining for gold on his mining claim in violation of a moratorium on the practice imposed by the California Department of Fish and Wildlife. Not surprisingly, the department found that suction dredge mining has significant adverse impacts on water quality, protected species, and the environment generally.

Rinehart went ahead with suction dredge mining anyway, and when charged criminally, argued that the Mining Law preempted any state laws that would restrict his right to mine on his mining claim. He was convicted, but the California Court of Appeals reversed the conviction, agreeing with Rinehart that the Mining Law preempts any state restriction on mining on a mining claim.

The Supreme Court reversed the Court of Appeals, explaining in great detail how the Mining Law was not intended to allow mining without regard to the application of state police power on a duly located mining claim, notwithstanding that the purpose of the law is to facilitate the development of mining on public lands. The court relied heavily on precedents going back over a century, including a series of U.S. Supreme Court decisions holding that in order to displace the application of state law on federal lands, Congress must act affirmatively. The court was doubtless influenced by an extensive amicus brief filed by the United States, which agreed that the state’s moratorium was not preempted by the Mining Law.

The California decision is not surprising given the increased emphasis on state and federal regulation of the environmental impacts of mining operations, which began with the major environmental legislation of the 1970s. For example, many years ago the BLM and Forest Service issued regulations requiring permits for surface disturbances on unpatented mining claims. The federal Surface Mining Control and Reclamation Act and the various state programs operating under delegation from that statute also regulate surface impacts of mining operations. Other environmental laws, including federal and state clean water statutes, air quality laws, and waste management requirements have been applied to mining operations without regard to whether the right to mine is based on fee simple ownership, leasehold interests, or unpatented mining claims.

Opponents of the Mining Law view the law as an anachronistic give-away of federal resources but have not succeeded in repealing it. But environmental regulations such as the suction dredge mining moratorium in California and increasingly insurmountable economic challenges in operating a small mining operation are slowly strangling the Mining Law. It is death by a thousand . . . picks.