Amicus Curiae Brief — American Exploration & Mining Association, Petitioner v. Ryan Zinke, Secretary of the Interior, et al.

Nos. 17-1286 & 17-1290

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------NATIONAL MINING ASSOCIATION,

Petitioner,

v.

RYAN ZINKE, SECRETARY OF THE INTERIOR, ET AL.,

Respondents.

-----------------------------------------------------------------AMERICAN EXPLORATION & MINING ASSOCIATION,

Petitioner,

v.

RYAN ZINKE, SECRETARY OF THE INTERIOR, ET AL.,

Respondents.

-----------------------------------------------------------------On Petitions For Writs Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICI CURIAE ARIZONA MINING

ASSOCIATION, ARIZONA ROCK PRODUCTS

ASSOCIATION, IDAHO MINING ASSOCIATION,

MONTANA MINING ASSOCIATION, NEVADA

MINING ASSOCIATION, NEW MEXICO MINING

ASSOCIATION, OREGON MINING ASSOCIATION,

UTAH MINING ASSOCIATION, AND

WYOMING MINING ASSOCIATION

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------CAROLINE LOBDELL

Counsel of Record

SHAY S. SCOTT

WESTERN RESOURCES LEGAL CENTER

9220 SW Barbur Blvd.

Suite 327

Portland, Oregon 97219

(503) 768-8500

clobdell@wrlegal.org

Attorneys for Amici Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

I.

INTERESTS OF AMICI CURIAE .............

1

II.

SUMMARY OF ARGUMENT ....................

2

III.

REASONS FOR GRANTING THE PETITIONS ........................................................

4

A. The Secretary’s Withdrawal Decision

Must be Vacated ..................................

4

B. The Magnitude of the 1 Million-Acre

Withdrawal by the Interior Secretary

Warrants Review .................................

8

C. Review is Necessary to Avoid Far

Reaching Consequences ...................... 12

IV.

CONCLUSION .......................................... 19

APPENDIX .......................................................... App. 1

ii

TABLE OF AUTHORITIES

Page

CASES

Alaska Airlines, Inc. v. Brock,

480 U.S. 678 (1987) .................................................11

INS v. Chadha,

462 U.S. 919 (1983) ...................................................7

Miller v. Albright,

523 U.S. 420 (1998) ...................................................8

STATUTES

16 U.S.C. §§ 1131 et seq., Wilderness Act of 1964 ....... 11

30 U.S.C. § 21a, Mining and Minerals Policy Act

of 1970 ......................................................... 12, 13, 14

30 U.S.C. §§ 22 et seq., Mining Law of 1872 ................9

43 U.S.C. §§ 1701 et seq., Federal Land Policy

and Management Act of 1976 ......................... passim

43 U.S.C. § 1701(a)(1) ................................................5

43 U.S.C. § 1701(a)(4) ................................................8

43 U.S.C. § 1701(a)(7) .......................................... 5, 12

43 U.S.C. § 1701(a)(12) ............................................12

43 U.S.C. § 1702(c) .....................................................5

43 U.S.C. § 1702(l) .....................................................5

43 U.S.C. § 1714.........................................................3

43 U.S.C. § 1714(a) ....................................................5

iii

TABLE OF AUTHORITIES – Continued

Page

43 U.S.C. § 1714(c)(1) ...................................... 5, 7, 11

43 U.S.C. § 1714(c)(2)(1)-(3) ......................................6

43 U.S.C. § 1714(f ) ....................................................4

43 U.S.C. § 1732(a) ....................................................5

STATUTES AT LARGE

Yellowstone National Park Act of March 1, 1872,

c. 24 § 1, 17 Stat. 32 ................................................11

REGULATIONS

43 C.F.R. § 2300.0-1(a) ..................................................5

MANUALS

603 DM 1.1(A), 1.1(A)(3) (Aug. 1, 2005), Department of the Interior, Departmental Manual ............6

FEDERAL REGISTER

74 Fed. Reg. 35,887 (July 21, 2009), Bureau of

Land Management, Notice of Proposed Withdrawal and Opportunity for Public Meeting;

Arizona ......................................................................6

77 Fed. Reg. 2,563 (Jan. 18, 2012), Bureau of

Land Management, Public Lands Order No.

7787; Withdrawal of Public and National

Forest System Lands in the Grand Canyon

Watershed; Arizona ...................................................7

iv

TABLE OF AUTHORITIES – Continued

Page

80 Fed. Reg. 57,635 (Sept. 24, 2015), Bureau of

Land Management, Notice of Proposed Withdrawal; Sagebrush Focal Areas; Idaho, Montana,

Nevada, Oregon, Utah, and Wyoming ....................16

82 Fed. Reg. 47,248 (Oct. 11, 2017), Bureau of

Land Management, Notice of Intent to Amend

Land Use Plans Regarding Sage-Grouse

Conservation............................................................17

82 Fed. Reg. 60,835 (Dec. 26, 2017), Executive

Order 13817, A Federal Strategy to Ensure

Secure and Reliable Supplies of Critical

Minerals ............................................................ 17, 18

83 Fed. Reg. 7,065 (Feb. 16, 2018), Department

of the Interior, Draft List of Critical Minerals .......18

OTHER AUTHORITIES

Daniel McGroarty, American’s Critical Minerals

Dependency: A Clear and Present Danger?,

Investor’s Business Daily (Aug. 25, 2017) ..............17

Draft Environmental Impact Statement, Sagebrush Focal Areas Withdrawal, U.S. Department

of the Interior, Bureau of Land Management

(Dec. 30, 2016) .........................................................16

Matthew Kandrach, America’s Dangerous Foreign Mineral Dependence, RealClear Energy

(Feb. 21, 2018) ................................................... 13, 17

v

TABLE OF AUTHORITIES – Continued

Page

National Research Council, Hardrock Mining

on Federal Lands, Committee on Hardrock

Mining on Federal Lands, Nat’l Acad. Press.

(1999) ................................................................. 14, 15

Statement of the National Mining Association

William E. Cobb, Vice President of Environmental Services, Freeport McMoran Mining

Company, before the Energy and Natural Resources Committee United States Senate re:

Hardrock Mining on Federal Lands (Jan. 24,

2008) ........................................................................13

U.S. Bureau of Land Management, “Record of

Decision and Approved Resource Management

Plan Amendments for the Great Basin Region,

Including the Greater Sage-Grouse SubRegions of Idaho, and Southwestern Montana,

Nevada, and Northeastern California, Oregon,

Utah,” U.S. Department of the Interior (Sept.

2015) ........................................................................15

U.S. Congressional Research Service, Federal

Land Ownership: Overview and Data, R42346

(Mar. 3, 2017) ..................................................... 14, 15

U.S. Forest Service, “Greater Sage-grouse

Record of Decision, Idaho and Southwest

Montana, Nevada, Utah,” U.S. Department of

Agriculture (Sept. 2015)..........................................16

1

INTERESTS OF AMICI CURIAE.1

I.

Amici Curiae are state mining associations located in the western United States whose members are

producers or suppliers engaged in responsible and sustainable mining activities and mineral production.

Amici Curiae recognize that mining is critically important to the economic health of America and vital to

producing materials used in products and services in

use every day throughout the country. Amici Curiae

advocate for mineral exploration and development to

provide an economic base to their states, and they promote mineral production on public lands as one of our

Nation’s most important assets. Mineral production is

the center of innovation and an advanced society.

1

Pursuant to Court Rule 37.2(a), counsel of record for petitioners and federal respondents received timely notice of the intent to file this Amici Curiae brief. Respondents Gregory Yount

and Grand Canyon Trust did not receive timely notice because

they did not appear as parties on the Supreme Court Docket until

April 6, 2018, and they were notified on that date. All parties have

provided written consent via email to file this Amici brief.

Counsel for Amici Curiae of The Western Resources Legal

Center (WRLC) authored this brief. WRLC is a 501(c)(3) legal education organization and is currently the Nation’s only hands-on

legal training program specializing in legal education advocacy on

behalf of natural resource users located throughout the United

States. WRLC’s legal services in preparing and filing this brief

were provided pro bono. The Amici western state mining associations reimbursed WRLC for costs only associated with preparing

and filing this brief. Pursuant to this Court’s Rule 37.6, the Amici

submitting this brief and their counsel hereby represent that no

party to this case nor their counsel authored this brief in whole or

in part, and that no person other than Amici paid for or made a

monetary contribution toward the preparation and submission of

this brief.

2

Absolutely everything we depend on is either made

from minerals or relies on minerals for its production

and distribution. Mining provides essential power and

materials for nearly every industry and consumer

product, including reliable and affordable energy, electronic devices, transportation, medical technology, and

the construction and maintenance of America’s entire

infrastructure and national security. Amici Curiae’s

members are responsible for providing critically important jobs in communities where they are needed the

most, and they provide the raw materials to power,

build and feed America. All of these innovations and

economic benefits are jeopardized by unfettered largescale public land withdrawals by the Executive branch

such as in this case.

Amici Curiae are the Arizona Mining Association,

Arizona Rock Products Association, Idaho Mining Association, Montana Mining Association, Nevada Mining Association, New Mexico Mining Association,

Oregon Mining Association, Utah Mining Association,

and Wyoming Mining Association. Amici Curiae submit this brief in support of Petitions for Writs of

Certiorari filed by the National Mining Association

(NMA) and American Exploration & Mining Association (AEMA). A more detailed description of Amici by

organization is set forth in the Appendix.

II.

SUMMARY OF ARGUMENT.

Amici Curiae are a group of western state mining

associations with vital interests in mining and mineral

3

development in the western United States. Among

those key interests are maintaining a proper balance

between mineral exploration and conservation, advocating for fair legislative and regulatory burdens on

mining, and promoting economic growth beneficial to

our Nation’s economy and the welfare of its citizens.

This case presents an issue of national importance, because mineral development provides essential materials for energy, national security, and nearly every

industry and consumer product available in our Nation.

The case raises the important question of whether

the delegated large-tract withdrawal authority under

Section 204(c)(1) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1714, survives and can be exercised by the Secretary of the

Interior when the authority is conditioned on a legislative veto (by which Congress intended to retain the

power to disapprove unwarranted withdrawals), where

this legislative veto power has been deemed unconstitutional. Significantly, the legislative veto is embedded

in the same statutory provision as the Section 204

large-tract withdrawal authority and cannot simply be

“severed” without undermining the intent of Congress.

In its decision, the Ninth Circuit Court of Appeals

has rewritten Section 204 to sever the legislative veto

from the large-tract withdrawal authority, which now

gives the Executive branch unfettered secretarial

withdrawal authority over vast tracts of federal lands,

including the over 1 million-acre withdrawal in

4

northern Arizona at issue.2 This decision is resultsbased and unsound. To sever the legislative veto but

retain what is now unilateral withdrawal authority by

the Interior Secretary violates the separation of powers and is based on a flawed analysis of severability

law. The decision is inconsistent with any logical discernment of congressional intent and will have far

reaching negative consequences to America’s mineral

producers and our Nation. This Court should accept review, reaffirm that the Executive branch’s large-tract

withdrawal authority under FLPMA is limited, and restore Congress’s intent in reserving large-tract withdrawal authority exclusively to itself.

The undersigned counsel of record for Amici Curiae provided timely notice of intent to file this brief

under Rule 37. All parties granted written consent.

III. REASONS FOR GRANTING THE PETITIONS.

A. The Secretary’s Withdrawal Decision Must

be Vacated.

The Ninth Circuit misapplied precedent which,

properly analyzed, demonstrates that the legislative

veto at issue is not severable from the Secretary’s

large-tract withdrawal authority under Section 204.

The Ninth Circuit decision is results-driven and will

2

The 20-year withdrawal authority without the legislative

veto is potentially indefinite, because it is endlessly renewable

and not limited to a 20-year maximum. 43 U.S.C. § 1714(f ). For

any mining company, which must make business plans for the

near term, a withdrawal renewable for successive 20-year periods

is permanent for all practical purposes.

5

inevitably lead to far reaching negative impacts on

mineral development.

The Federal Land Policy and Management Act of

1976 (FLPMA) governs public land management including withdrawal criteria and procedures to close

public lands to mineral development. 43 U.S.C.

§ 1714(a). Adopted in 1976, FLPMA reaffirmed federal

ownership of public lands and dedicated them to multiple-use and sustainable-yield management. 43 U.S.C.

§§ 1701(a)(1), (7), 1702(c), 1732(a). The Bureau of Land

Management (BLM) must manage public lands for six

principal multiple-uses: (1) mineral development; (2)

recreation; (3) livestock grazing; (4) rights-of-way; (5)

fish and wildlife; and (6) timber. Id. § 1702(l). Closing

more than 100,000 acres to any one of the above uses

is a management decision that requires a plan amendment and report to Congress. Id. § 1712(e).

FLPMA also narrowly defines and limits the Secretary of the Interior’s ability to withdraw federal

lands from mineral development. Withdrawals must

occur in accordance with Section 204 and “where appropriate.” 43 U.S.C. § 1714(a); 43 C.F.R. § 2300.0-1(a).

Under Section 204 of FLPMA, the Secretary of the

Interior is authorized to withdraw public land from

particular uses for up to 20 years. 43 U.S.C.

§ 1714(c)(1). For withdrawals over 5,000 acres (largetract withdrawals), the Secretary is required to provide a report to Congress as well as an opportunity for

congressional approval or disapproval. FLPMA explicitly limits the Secretary’s withdrawal authority to

instances where the proposed use will cause environmental degradation, or where existing and potential

6

uses are incompatible or conflict with the proposed use.

43 U.S.C. §§ 1714(c)(2)(1)-(3). Thus, the Interior Secretary does not enjoy unlimited discretion to withdraw

federal land from mineral development and must support any large-tract withdrawal decision with facts

documenting the specific purpose and not to exceed 20

years.3

This appeal arises from the Record of Decision

(ROD) following the Department of the Interior’s (DOI)

2009 notice of intent to withdraw 999,549 acres in

northern Arizona in order “to protect the Grand Canyon watershed from adverse effects of locatable hard

rock mineral exploration and mining.” 74 Fed. Reg.

35,887-88 (July 21, 2009). The notice segregated these

lands from location and entry under the 1872 Mining

Law for two years to allow time for National Environmental Policy Act (NEPA) analysis and other studies.

Id. at 35,887. DOI received more than 296,461 comments on the Draft Environmental Impact Statement

(EIS), with more than 99 percent being “form letters”

generated by environmental organizations supporting

the withdrawal. See Ninth Circuit Excerpts of Record

(ER) 298. The State of Arizona, individual state agencies, state legislature, and local governments opposed

the withdrawal. ER 330, 362, 332, 344, 350, 357, 359,

3

The Interior’s Departmental Manual (DM) requires that

“withdrawals shall be kept to a minimum,” be supported by “a

justification for the lands to be withdrawn,” and include “an

explanation of why existing law or regulation cannot protect or

preserve the resource.” 603 DM 1.1(A), 1.1(A)(3) (Aug. 1, 2005),

available at: https://www.ntc.blm.gov/krc/uploads/782/mod01_

603DM1.pdf (last visited Apr. 9, 2018).

7

366, 268, 273, 525, 597. On January 9, 2012, thenSecretary of the Interior Ken Salazar signed a ROD

ordering the Northern Arizona Withdrawal (NAW)

of over 1 million acres (1,006,545 acres) for 20 years.

77 Fed. Reg. 2,563 (Jan. 18, 2012).

The District Court and the Ninth Circuit below

rejected plaintiff-petitioners’ arguments that the Secretary’s massive large-tract withdrawal was ultra

vires. As explained by NMA and AEMA in their Petitions for Review, the intent of Congress in enacting

FLPMA was to preserve for itself oversight of withdrawals of 5,000 acres or more with the ability for Congress to veto the withdrawals. That congressionally

reserved power is critical in this case – where the nature of the withdrawal is far beyond the threshold

5,000 acres and exceeds 1 million acres – an area the

size of a square with 40-mile sides. In adopting

FLPMA, Congress repealed the Executive branch’s express and implied withdrawal authority which had

been recognized through caselaw, and intentionally replaced it with significantly restricted authority, subject

to legislative review. 43 U.S.C. § 1714(c)(1). This legislative veto has been held unconstitutional under INS

v. Chadha, 462 U.S. 919 (1983). However, as discussed

in NMA’s and AEMA’s Petitions for Review, the plain

language, structure, and legislative history of FLPMA

collectively show that the legislative veto is inseverable from the large-tract withdrawal authority, which is

embedded in the same provision. Congress would not

have enacted Section 204(c)(1) and granted unfettered

Executive branch authority to effect 1 million-acre

8

large-tract withdrawals without the legislative veto.4

Any other conclusion ignores Congress’s intent and

leads to an alarming, unintended and unfettered delegation of authority to the Secretary. Amici join in urging that the Court accept review and vacate the

Secretary’s unlawful withdrawal decision.

B. The Magnitude of the 1 Million-Acre

Withdrawal by the Interior Secretary

Warrants Review.

Amici Curiae share concerns similar to those

raised by the Amici States of Arizona, Utah, Montana,

and Nevada before the Ninth Circuit. The Amici western state mining associations advocate for responsible

mining in their home states on open federal lands,

which comprise a major part of the land base in the

western United States. Amici Curiae are very concerned with the magnitude of this 1 million-acre withdrawal, and the absence of verifiable justification in

the record for the decision.5 “Neither available science

4

Congress has declared it United States policy that “the

Congress exercise its constitutional authority to withdraw or otherwise designate or dedicate Federal lands for specified purposes

and that Congress delineate the extent to which the Executive

may withdraw lands without legislative action.” 43 U.S.C.

§ 1701(a)(4) (emphasis added); see also Miller v. Albright, 523 U.S.

420, 456-57 (1998) (Scalia, concurring) (Congress has plenary

power over public lands under Property Clause).

5

See National Mining Ass’n v. Jewell, No. 14-17359 (Brief of

the States of Utah, Arizona, Montana, and Nevada as Amici Curiae in Support of Appellants and Reversal, No. 14-17350 (9th Cir.

filed Apr. 17, 2015) (Brief of Amici States)), Dkt. 29 at 2.

9

nor data presented support the withdrawal’s stated

purpose: protecting the Grand Canyon watershed.”

Brief of Amici States, Dkt. 29 at 2. In one fell swoop,

the withdrawal closes off over 1 million acres of mineral-bearing federal lands to mining.6 These lands are

typical of much of the arid west, where state and local

governments share in the mineral revenues produced

from federal lands that dominate the landscape. Amici

state mining associations, like Congress, have vital interests in opposing unfettered large-scale land withdrawals by the Executive branch without proper

legislative oversight and approval. Amici share core interests in advocating for responsible mining and mineral development, promoting and preserving local

economies, and maintaining a sound balance between

6

The use of metallic minerals locatable under the Mining

Law of 1872, 30 U.S.C. §§ 22 et seq., remains essential throughout

our high technology society. “With more domestic reserves than

any other country, coal remains a key partner in America’s energy

future, reducing our reliance on foreign markets and providing

us with secure and affordable energy. That energy picture also

includes uranium, which is critical for the nuclear industry, and

renewable energy from wind turbines and solar panels made from

minerals like copper, aluminum, zinc, molybdenum and silver.”

National Mining Association website on Core Issues/Energy, available at: https://nma.org/category/energy/ (last visited Apr. 9, 2018).

Uranium is “essential to energy development in a modern

society, and as environmental pressures result in reduced use of

fossil fuels, uranium will become even more important as a source

of clean energy. Allowing the NAW to stand will impose on Utah,

Arizona, and potentially all western states the unnecessary negative economic consequences of this and other inevitable

largescale withdrawals of public lands.” Brief of Amici States,

Dkt. 29 at 5.

10

mineral development and conservation and cultural

interests in affected communities.

In affirming a withdrawal of this magnitude without key safeguards Congress intended under the legislative veto, the Ninth Circuit decision now imposes a

new resource-restrictive precedent with potentially

immense economic impacts throughout the western

United States. Unless vacated, the Interior Secretary’s

massive land withdrawal will have major economic impacts. The projected economic impacts of the withdrawal were summarized for the Ninth Circuit by the

Amici States:

The [FEIS] predicts a significant loss of high

paying mining jobs. Similarly, Tables 4.17-9

and 4.17-11 predict that the withdrawal will

create a direct economic loss of over $3 billion

during the 20 year withdrawal. AR002001

(FEIS 4-290, 4-292). Tables 4.17-13 and 4.1714 predict a reduction in state and local

revenue of $180 million over 20 years. Id.

(FEIS 4-295 through 296). In contrast, for the

communities most proximate to the North

Parcel (Fredonia, Kanab, the Kaibab Paiute

Tribe, and Colorado City) as well as Blanding,

Utah (cite [sic] of the White Mesa uranium

mill), “Alternative A could produce moderate

to major economic benefits over the next 20

years.” AR002001 (FEIS 4-278).

Brief of Amici States, Dkt. 29 at 5 (emphases added).

In contrast, allowing mining for 20 years within the

NAW has been estimated to generate $2 billion in

federal and state corporate income taxes, 1,078 jobs

11

annually (directly and indirectly related to mining in

the project area), and $40 million annually from payroll. Quaterra Alaska, Inc. v. Jewell, No. 14-17351

(App’s. Op. Br. filed Apr. 10, 2015), Dkt. 19-1 at 70.

In determining whether Section 204(c)(1) “will

function in the manner consistent with the intent of

Congress” without the legislative veto, see Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 685 (1987), the Ninth

Circuit erred in giving undue weight to the presence of

a “severability” clause in FLPMA, but failing to

properly consider the “nature” and breadth of the “authority that Congress made subject to the veto.” Id. (“It

is necessary to recognize that the absence of the veto

necessarily alters the balance of powers between the

Legislative and Executive Branches. . . .”). The nature

and breadth of the withdrawal are immense. Without

the legislative veto, the Secretary now has total discretion to exercise undelegated legislative power and lock

up vast tracts of federal lands that are otherwise available to the domestic mining industry and critically important to our Nation’s economy, innovation, and

security.7

7

Congress has legislatively withdrawn special lands deserving of protection for National Parks dating back to 1872 at Yellowstone Park, see Yellowstone National Park Act of March 1, 1872,

c. 24 § 1, 17 Stat. 32, and under the Wilderness Act of 1964, 16

U.S.C. §§ 1131 et seq. These actions were taken through the normal legislative processes involving elected members of Congress,

acting under the Property Clause, and the President. FLPMA

withdrawals under Section 204, in contrast, are made by the unelected Secretary of the Interior. 43 U.S.C. § 1714(c)(1). As such,

the FLPMA withdrawal authority should be narrowly construed.

12

C. Review is Necessary to Avoid Far Reaching Consequences.

Federal lands in the west are important for mineral exploration and development and are vital to

the Nation’s economy and security.8 43 U.S.C.

§§ 1701(a)(7), (12). Under the Mining and Minerals

Policy Act of 1970, Congress declared it the “continuing

policy in the national interest to foster and encourage

private enterprise in (1) the development of economically sound and stable domestic mining, minerals,

metal and mineral reclamation industries, [and] (2)

the orderly and economic development of domestic

mineral resources . . . and minerals to help assure satisfaction of industrial, security and environmental

needs.” 30 U.S.C. § 21a. This policy in favor of mineral

development includes “all minerals and mineral fuels

including oil, gas, coal, oil shale and uranium.” Id. The

Court should accept review to avoid far reaching negative consequences that obstruct the important policies for public lands.

Federal lands make up a large part of the land

base in the west and “account for as much as 86

8

Congress has declared U.S. policy that:

the public lands be managed in a manner which recognizes the nation’s need for domestic sources of minerals,

food, timber, and fiber from the public lands including

implementation of the Mining and Minerals Policy Act

of 1970 (84 Stat. 1876, 30 U.S.C. 21a) as it pertains to

the public lands; . . . .

43 U.S.C. § 1701(a)(12) (emphasis added).

13

percent of the land area in certain western states.”9

Western states, “rich in minerals, account for 75 percent of our Nation’s metals production and will continue to provide a large share of the future metals and

hardrock minerals produced in this country.”10 Id. New

large-tract closures without congressional oversight

seriously interfere with domestic mineral production

and economic development:

Congress has closed lands to mining for

wilderness, national parks, wildlife refuges,

recreation areas, and wild and scenic rivers.

Congress also has granted additional authority to the Executive Branch to close federal

lands to mining. . . . Finally, Congress authorized the Secretary of the Interior to close federal lands to mining pursuant to the land

9

Statement of the National Mining Association William E.

Cobb, Vice President of Environmental Services, Freeport McMoran Mining Company, before the Energy and Natural Resources

Committee United States Senate re: Hardrock Mining on Federal

Lands (Jan. 24, 2008) at 4, available at: https://www.energy.

senate.gov/public/index.cfm/files/serve?File_id=551BC2D2-AF9C4C9E-AD18-6D24D9E82248 (last visited Apr. 9, 2018).

10

“It is noteworthy that federal lands account for as much

as 86 percent of the land area in some Western states and that

those states account for 75 percent of our nation’s metals production. In fact, the U.S. possesses a mineral reserve base worth $6.2

trillion. However, half of the nation’s hard-rock mineral lands are

off-limits or under restrictions for mining. Because of lack of access and regulatory problems, America’s ability to develop domestic minerals has been severely restricted.” Matthew Kandrach,

America’s Dangerous Foreign Mineral Dependence, RealClear Energy (Feb. 21, 2018), available at https://www.realclearenergy.org/

articles/2018/02/21/americas_dangerous_foreign_mineral_dependence_

110274.html (last visited Apr. 9, 2018).

14

withdrawal authority of [FLPMA]. As a result

of these laws and practices, new mining operations are either restricted or banned on more

than half of all federally owned public lands.

These existing laws and authorities are adequate to protect special areas. New closures of

public land, based on vague and subjective criteria without congressional oversight, would

arbitrarily impair domestic mineral and economic development.

Id. (emphasis added).

According to the most recent land data, BLM manages about 248 million acres of surface land in the

western states, including Alaska, of which roughly 90%

are open to hardrock mining. U.S. Congressional Research Service, Federal Land Ownership: Overview

and Data, R42346 (Mar. 3, 2017)11 at 1, 10; see also National Research Council, Hardrock Mining on Federal

Lands, Committee on Hardrock Mining on Federal

Lands, National Academy Press, Washington, DC

(1999)12 at 1, 17-18 & Table 1-1. Approximately 0.06%

of BLM lands are affected by active mining and mineral exploration operations. Hardrock Mining on Federal Lands at 1. The Forest Service manages about 193

million acres in the western states, of which roughly

11

Homeland Security Digital Library, available at:

https://www.hsdl.org/?abstract&did=799426 (last visited Apr. 9,

2018).

12

The National Academies of Sciences Engineering Medicine, free .pdf download available at: https://www.nap.edu/catalog/

9682/hardrock-mining-on-federal-lands (last visited Apr. 9, 2018).

15

80% are open to hardrock mining.13 Id.; Federal Land

Ownership at 1, 10. Together, the two land management agencies are responsible for 38% of the total area

of the western states. Hardrock Mining at 1. “The 12

western states contain 99% of the lands administered

by BLM and 85% of the lands administered by the Forest Service.” Id. at 19. To meet the federal government’s continuing policies of helping to ensure we meet

our domestic, industrial, and security mineral needs,

modern responsible hardrock mining and reclamation

is highly regulated by the States and federal agencies.

Id. at 3, 52.

Amici Curiae have abundant reasons to be concerned about unchecked Executive land withdrawals.

During 2014 and 2015, the prior Administration revised 98 BLM and Forest Service land use plans to

impose highly restrictive greater sage-grouse rules

against mining, ranching and other public lands uses

on roughly 70 million acres of federally managed lands

in 10 western states.14 On September 24, 2015, the

13

“Only a very small portion of Earth’s continental crust

(less than 0.01%) contains economically viable mineral deposits.

Thus, mines can only be located in those few places where economically viable mineral deposits were formed and discovered.”

Hardrock Mining on Federal Lands at 2. As a result, few places

are going to be disturbed by mining because economically viable

deposits are very rare.

14

U.S. Bureau of Land Management, “Record of Decision and

Approved Resource Management Plan Amendments for the Great

Basin Region, Including the Greater Sage-Grouse Sub-Regions of

Idaho, and Southwestern Montana, Nevada, and Northeastern

California, Oregon, Utah,” U.S. Department of the Interior

(Sept. 2015), 1-7, 1-14, 1-33 & Figures 1.3, 1.5, available at

16

Interior Department segregated and proposed to withdraw roughly 10 million acres of public and National

Forest System lands in Idaho, Montana, Nevada, Oregon, Utah, and Wyoming from location and entry under

the United States mining laws as further range-wide

conservation strategy for the sage-grouse. Id. The

agencies contended that too many acres of sagebrush

habitat were being lost to invasive species and wildfire,

conifer expansion, and grazing and mining and energy

development. Id. at 1-7. The two-year segregation was

followed by a Draft Environmental Impact Statement

to justify continuing the mining ban for 20 years.15 The

two-year segregation expired in September 2017. 80

Fed. Reg. 57,635 (Sept. 24, 2015). Then, in October

2017, the current Administration determined that the

proposal to withdraw 10 million acres for 20 years was

unreasonable and a complete overreach, especially in

light of data showing that mining affected less than 0.1

percent of actual sage-grouse habitat, or only about

https://www.blm.gov/or/energy/opportunity/f iles/gbrod.pdf (last

visited Apr. 9, 2018).

U.S. Forest Service, “Greater Sage-grouse Record of Decision,

Idaho and Southwest Montana, Nevada, Utah,” U.S. Department

of Agriculture (Sept. 2015), 18-19 & Table B, available at: https://

www.fs.fed.us/sites/default/f iles/sage-grouse-great-basin-rod.pdf

(last visited Apr. 9, 2018).

15

Draft Environmental Impact Statement, Sagebrush Focal

Areas Withdrawal, U.S. Department of the Interior, Bureau of

Land Management (Dec. 30, 2016), at iv, available at: https://

eplanning.blm.gov/epl-front-office/projects/nepa/70697/94514/114120/

SFA_DEIS_Main_Text_508.pdf (last visited Apr. 9, 2018).

17

171,000 acres of the 10 million acres that was withdrawn. 82 Fed. Reg. 47,248 (Oct. 11, 2017).

Recently, the Administration recognized that a reliable, secure minerals supply chain is of utmost importance in addressing America’s national security,

infrastructure and manufacturing needs. In December

2017, the President issued an Executive Order entitled, “A Federal Strategy to Ensure Secure and Reliable Supplies of Critical Minerals.” 82 Fed. Reg. 60,835

(Dec. 26, 2017). The Executive Order recognizes that

the United States is heavily reliant on imports of certain mineral commodities that are vital to the Nation’s

security and economic prosperity, creating a strategic

vulnerability for both its economy and military to adverse foreign government action, natural disaster, and

other events that can disrupt supply of these key minerals. Id. § 1.16 “In defense applications, the U.S. is

100% dependent for defense-grade aluminum fused

oxide – with the shortage so severe that it has been

approved for purchase into the National Defense

Stockpile.”17 The Executive Order calls on federal

16

“Today, imports make up more than one-half of U.S. consumption of 50 widely-used minerals, and the U.S. is 100 percent

reliant for 20 of those.” Matthew Kandrach, America’s Dangerous

Foreign Mineral Dependence, RealClear Energy (Feb. 21, 2018),

available at https://www.realclearenergy.org/articles/2018/02/21/

americas_dangerous_foreign_mineral_dependence_110274.html

(last visited Apr. 9, 2018).

17

Daniel McGroarty, American’s Critical Minerals Dependency: A Clear and Present Danger?, Investor’s Business Daily

(Aug. 25, 2017), available at https://www.investors.com/politics/

commentary/americas-critical-minerals-dependency-a-clear-andpresent-danger/ (last visited Apr. 9, 2018).

18

agencies to identify ways to both streamline the permitting processes to expedite exploration, production,

processing, reprocessing, recycling, and domestic refining of critical minerals; and to ensure that miners and

producers have electronic access to the most advanced

topographic, geologic, and geophysical data within the

United States; among other actions.18 Id. §§ 1, 3. Our

country’s dependence on mineral imports has doubled

over the past 20 years.19 Today, less than half of the

mineral needs of U.S. manufacturing are met from domestically mined minerals, and we are 100 percent import-dependent for 20 key minerals. Id.

Unfettered Executive withdrawals, such as the

sage-grouse withdrawal that was narrowly averted

and the unchecked Arizona withdrawal at issue, are

clear obstacles that hamper domestic minerals mining

and interfere with the policies of streamlining domestic mineral production and lessening our reliance on

foreign dependence. The Court should accept review to

safeguard against eroding those policies.

18

The Executive Order also required the U.S. Geological Survey to publish a draft list of critical minerals within 60 days. Uranium is one of the minerals on the draft list. 83 Fed. Reg. 7,065

(Feb. 16, 2018).

19

NMA, Press Release (Dec. 20, 2017), available at: https://

nma.org/2017/12/20/presidential-executive-order-recognizes-strategicimportance-minerals-mining-domestic-economy-national-securityinfrastructure/ (last visited Apr. 9, 2018).

19

IV. CONCLUSION.

For the reasons set forth above, the Petitions for

Certiorari should be granted.

Respectfully submitted,

CAROLINE LOBDELL

Counsel of Record

Shay S. Scott

WESTERN RESOURCES LEGAL CENTER

9220 SW Barbur Blvd.

Suite 327

Portland, Oregon 97219

(503) 768-8500

clobdell@wrlegal.org

Counsel for Amici Curiae