By Kerry Shapiro
Last week, President Trump signed an executive order with potentially wide-ranging implications for the mining industry and many other affected stakeholders. The order directs the Department of the Interior (DOI) to review national monuments, particularly those larger than 100,000 acres, that were designated since January 1, 1996, and to recommend if any of those designations should be modified, resized or rescinded.
The Bears Ears National Monument Controversy
Front and center is the 1.35 million-acre Bears Ears National Monument in Utah, established by President Obama in December 2016. The national monument designation has withdrawn the area — some of which is known to have Native American archaeological and cultural sites — from mining and oil and gas exploration and development. Trump has requested a recommendation on Bears Ears in 45 days.
What reportedly concerns locals and politicians alike is that Utah’s representatives worked for three years on a balanced bill that would have protected the Bears Ears area while accommodating mineral and other interests. More than two-thirds of the state’s land is owned by the federal government, and concerns and emotions over land use issues run high.
Also on the list for review is another designation in Utah, the 1.9 million-acre Grand Staircase-Escalante National Monument, designated by President Clinton in 1996.
The Antiquities Act of 1906
The Antiquities Act of 1906 was signed into law by President Theodore Roosevelt and gives the president authority to designate public lands as national monuments. Over the years, Congress has elected to turn some national monuments into national parks.
UPI quoted Trump at the signing of the executive order as saying: “The Antiquities Act does not give the federal government unlimited power to lock up millions of acres of land and water, and it’s time we ended this abusive practice.”
What this means to the mining industry
National monuments have the potential to significantly constrain mineral development within their boundaries. Where claims, leases, contracts or other authorizations allowing for mining and other commercial activities already exist, they can generally continue when the public land is turned into a national monument. New claims or other authorizations for such activities, after a national monument is designated, can be difficult to obtain.
Certain groups have already asserted that there may be legal push-back if Bears Ears is rescinded.
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, construction and building materials industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry Shapiro at firstname.lastname@example.org.
JMBM’s Natural Resources & Mining Practice Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.