The Troubles with Mill Sites: Resolving Legal and Practical Barriers to Mining on Federal Lands [Note]

Abstract

This Note examines legislative, administrative, and judicial solutions to the problem of properly planning for, classifying, and siting mine waste storage facilities on federal lands. Mill sites, which provide private parties surface access and occupancy rights to federal land for activities ancillary to mining, pose significant practical and legal issues discouraging their use for mine waste storage planning. The first is the occupation issue, characterized at two points: a chicken-and-egg problem in the exploration stages of a mine’s life, wherein a valid mill site must be occupied, even though the federal lands comprising the site cannot be occupied for mining purposes prior to the completion of the Mine Plan of Operations (MPO) review process; then, at the end of the mine life, a mill site featuring waste rock or tailings storage may be a permanent occupation of federal lands, causing both initial regulatory approval and future closure issues. Second, the number of mill sites that a miner may locate in connection with its claims has varied historically, with stricter interpretations resulting in little available real estate for waste disposal. Finally, mill sites must be located on non-mineral land, a status without a clear definition that could vary with time depending on economic conditions. Given the legal and practical issues posed by mill sites—largely dismissed or ignored by the Ninth Circuit—mine planners, government agencies, and the public would benefit from a streamlined solution to mine waste planning. Rising populations and an increasingly technological society make mining just as important today as ever, and interference with the industry’s ability to procure necessary resources is more harmful than helpful to society. Ideally, a waste storage solution would serve to make mine feasibility studies and permitting more efficient, predictable, and reliable while simultaneously upholding American economic and environmental values.