From Washington Monthly, January 11:
As lawmakers push for more domestic mining of critical minerals, they risk making the most retrograde federal law on the books even worse.
In May 2018, the scientist Carol Bruegge drove eight hours from the Jet Propulsion Laboratory in Pasadena, California, to a remote stretch of federal public lands in Railroad Valley, Nevada. She’d visited this vast and whistling expanse of desert many times over the years to adjust the instruments that her team uses to calibrate NASA’s fleet of satellites. But this time was different. Almost immediately, Bruegge noticed that the valley, including the area surrounding the agency’s instruments, had been punctuated with small plastic flags stuck into the ground. One bore a slim piece of paper announcing that, two months earlier, a lithium mining company based in Vancouver, Canada, had staked dozens of claims on U.S. public land across the valley.
The news came as a surprise. NASA had used the Railroad Valley since 1993 to perform the finicky business of calibrating its satellites. The work requires that Bruegge and her colleagues measure the light intensity bouncing off Earth’s surface and then compare those measurements with readings from orbiting satellites’ optical sensors. The trouble is, any old surface won’t do. “There’s a real Goldilocks quality to it,” says one of Bruegge’s colleagues, the NASA scientist Hal Maring, rattling off a list of exacting criteria for an ideal topography. Railroad Valley, he says, is the only place in North America that fits the bill, and one of only three such locations worldwide—the others are in China’s Gobi Desert and Libya’s Sahara. The prospect that a mining firm might disrupt this singular surface made everyone at NASA uneasy. U.S. satellites provide all kinds of vital data that informs both immediate and long-term decisions “that touch nearly every aspect of life on Earth,” Maring says, from the health of agricultural markets to the accuracy of an emergency weather response.
But here’s the rub. The chairman of the mining company that had staked all those claims describes Railroad Valley in nearly identical terms. “There’s nothing like it that we’re aware of in North America and few if any comparable sites anywhere else in the world,” Kevin Moore, the chairman of 3 Proton Lithium, which is now headquartered in Carson City, Nevada, wrote in an email. The company estimates that the brine beneath the valley floor contains a bonanza of valuable minerals, including boron and tungsten, as well as “more than 25 million tons of recoverable lithium.” That would roughly triple the total amount of lithium—the key ingredient in electric car and solar energy batteries—that a recent U.S. Geological Survey previously estimated to be available within U.S. borders.
If the firm can figure out how to extract those minerals profitably, it would go a long way toward satisfying a recent, bipartisan obsession in Washington: to reduce American dependence on China by securing a robust domestic supply chain of the critical minerals essential to building the technology we need to transition to a post-carbon economy. A flurry of recent legislation—including the Energy Act of 2020, the Inflation Reduction Act of 2022, and the Bipartisan Infrastructure Act of 2022—has introduced tax breaks, subsidies, and channels of direct government investment to incentivize the domestic mining and processing of critical minerals. In early 2022, President Joe Biden invoked an older piece of legislation, the Defense Production Act, to “boost mineral development … and provide federal money to help jump-start new mines or expand existing ones.” Within six months, the Department of Energy had dumped $2.8 billion into companies working on mining and processing critical minerals on U.S. soil.
So, who’s in charge of adjudicating this kind of tricky dispute on federal public lands—especially one like this that pits two key government priorities against one another?
Well, here’s the thing. When it comes to almost every industry that uses federal lands—oil, gas, timber, ranching, recreation, some car company that wants to film a commercial outside of Moab, you name it—the answer to that question is what you would expect. Staffers at the Bureau of Land Management (BLM) or the Forest Service, or whatever natural resource agency oversees the parcel in question, weigh the costs and benefits of a proposed land use and decide whether it’s a good idea. If it is deemeda good idea, the bureaucrats will generally allow a company to lease or use the public land for a certain period of time, under certain conditions, under a given fee structure. If not, the request is denied.
If the economic stakes or political ramifications are sufficiently high, the question can get kicked upstairs to the department’s political appointees or to a cabinet secretary, or it may even land on the desk of the president who, being a politician, will generally demand a compromise that mollifies as many constituencies as possible and that can be defended as in the national interest. The process is messy, imperfect, and subject to the whiplash of different administrations’ political priorities, but it’s also reasonably fair.
The Railroad Valley case seemed to demand precisely this kind of robust, high-level analysis by the experts at the BLM, which oversees the region. While 3 Proton Lithium had offered to use an experimental extraction technique to tap the mineral-rich brine without disturbing the valley’s prized surface, NASA had balked at the prospect, saying that Railroad Valley was too important to be “a guinea pig,” per Maring. Meanwhile, industry researchers pointed to alternative sites, like California’s Salton Sea, that contain large quantities of lithium, and where a mine would not compromise. NASA’s mission. But the BLM was silent on the dispute. That’s partly because the agency doesn’t have the staff numbers or in-house expertise to analyze and adjudicate the complex scientific issues involved. But the bigger reason is that when it comes to uncommon minerals and hardrock mining—an imprecise legal category that includes everything from precious metals and certain gravels to lithium brine—the BLM doesn’t have the authority. Unlike every other industry,hardrock mining on federal public lands falls under the auspices of a unique, dumpster fire of a law: the General Mining Act of 1872.
Under this law, any mining company, from any country, is invited to stake as many 20-acre claims as it would like on most federal public lands. That invitation is “self-initiated,” meaning that the company need not ask permission first. It can just walk right onto public lands, stick a flag into the ground, submit a $175 registration fee, and bada bing, bada boom, it’s got itself a claim. Once the company discovers valuable minerals that can be extracted profitably, its claim vests as a “valid and existing claim”—a seemingly flimsy bit of legalese that carries the weight of a legal property right, protected by the Fifth Amendment. A valid claim can’t be revoked by anybody, including the federal government itself. Oh, and any minerals that a mining company finds on that claim are theirs to keep, for free. No royalty payments required. “People hear about this law and they say, no, no, no, that can’t be right,” says John Robison, the director of public lands for the Idaho Conservation League. “Then they learn more and realize it’s even worse than they thought.”
Once a mining firm has a valid claim to federal land, it’s a golden ticket. Neither the president nor the interior secretary has the power to undo valid claims; even an act of Congress decreeing a new national park on that same land wouldn’t do the trick. Instead, the burden shifts to the public to prove that a mine in that location would violate a federal environmental statute. But even then, if a judge determines that a mining operation would violate federal law, the firm’s valid claim remains intact. It can just tweak its proposal or offer up a stronger environmental mitigation plan.
Last spring, 3 Proton Lithium was in the process of determining that it could mine profitably in Railroad Valley and therefore had a valid claim to the land. But before that process was complete, Interior Secretary Deb Haaland used the one blunt, time-limited tool at her disposal: the authority to unilaterally withdraw public lands from “new” mining claims—that is, not already valid claims—for up to 20 years. In April 2023, Haaland withdrew nearly 23,000 acres from new mining in Railroad Valley, including about a third of the area on which 3 Proton Lithium had claims. Bruegge and her colleagues could go on calibrating, for now.
But if Haaland’s withdrawal marked a victory for NASA, the climax of this unlikeliest of duels also left many in Washington agog at how the system had worked. After all, Biden had spent the previous two years captaining a full-court press to dump billions of taxpayer dollars into encouraging domestic critical-mineral mining. And yet here was Biden’s own appointee unilaterally shutting down mining access to potentially the biggest lithium deposit in North America without even so much as an interagency review. “I kept thinking, ‘What the hell is going on here?’ ” Representative Mark Amodei, a Republican from Nevada whose district includes Railroad Valley, told me. “It felt like hypocrisy, the height of bureaucratic hubris.”.....
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