Mining Committee Report

I. Federal Cases

In Earthworks v. Department of the Interior, the D.C. Circuit upheld a Bureau of Land Management (BLM) Final Rule interpreting Section 42 of the 1982 Mining Law to allow a mining claim holder to claim several parcels of land for mill sites, so long as no parcel exceeds five acres. The Final Rule withdrew a 1997 proposed rule that limited claim holders to just one such five-acre parcel of land per mining claim. In 2009, environmental organizations sued BLM and the Department of the Interior to challenge the Final Rule under the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). In June 2024, the D.C. Circuit affirmed the district court’s ruling that the Final Rule did not violate NEPA or the APA. First, the court ruled that BLM’s interpretation of Section 42 was not unreasonable because “[t]he operative words of section 42 plainly contain no limit on the number of mill sites a claim owner may locate,” and this interpretation was supported by legislative history and precedent. Second, the court found that the agency did not violate NEPA by failing to prepare an Environmental Impact Statement (EIS) prior to abandoning the never-effective 1997 proposed rule. Because the Final Rule merely codified the status quo, it was not a major federal action and an EIS was unnecessary. Third, the BLM did not violate the notice provision of the APA when it issued the Final Rule without additional notice and comment because the Final Rule was a “logical outgrowth” of the proposed rule.

In Rayco v. Bernhardt, the Central District of California determined that the Department of Interior (DOI) must verify the physical location of a mining claim through ground truthing rather than relying solely on its legal description of the claim. But the court also upheld the DOI’s application of a statute that withdrew land from mining claims, even though the statute was passed after the patent application was filed. Plaintiff Rayco, LLC challenged the DOI’s denial of mineral patent applications for lands within the Mojave Natural Preserve (Preserve). Since 1948, Rayco and its predecessors mined a portion of the Preserve for volcanic cinders. In 1991, Rayco applied to patent 657 acres it purportedly used for mining. After nearly 30 years, the DOI issued the following decisions: (1) declared null and void all but ten acres of land consisting of the mines Rayco used, and (2) denied patents to mill sites associated with the ten acres of land that were not invalidated. Rayco challenged these decisions under the APA. On summary judgment, the Central District of California found partially for Rayco and partially for the DOI. First, the court determined that the DOI acted in an arbitrary and capricious manner when it made no factual findings as to the actual physical location of the 1948 claim, relying instead entirely on the legal description. Under California law, questions to the location of a mining claim are often decided by considering multiple pieces of evidence, and disputes between the site of a location claimed by survey and a location on the ground are often resolved in favor of the location on the ground. Second, the court found that the DOI’s denial of the patents for mill sites was a valid reading of the California Desert Protection Act (CDPA). The CDPA withdrew the Preserve from location, entry, and patent under U.S. mining laws in 1994. BLM’s denial of the mill site patents did not constitute a retroactive application of the CDPA, even though Rayco submitted the application prior to the CDPA’s enactment, because the patent had not yet been issued and Rayco did not have property rights until the patent was issued. The court vacated and remanded to allow the DOI to properly consider the question of the 1948 on-the-ground location.

In Stone v. High Mountain Mining Company, LLC, the Tenth Circuit reversed a district court decision that a mine’s method of processing wastewater violated the Clean Water Act (CWA) because it constituted an unpermitted discharge of pollutants into navigable waters of the United States. The High Mountain Mine used four settling ponds to process wastewater from the mine’s processing plant. Plaintiffs argued that High Mountain violated the CWA, because it allowed polluted water from the settling ponds to seep through the bottoms of the ponds, enter the groundwater, and flow into the South Platte River without obtaining a National Pollution Discharge Elimination System (NPDES) permit. The district court found that the settling ponds were point sources that channeled pollutants through groundwater. But the Tenth Circuit reversed, holding that the district court did not analyze all of the County of Maui v. Hawaii Wildlife Fund factors, which are used to determine whether a discharge to groundwater qualifies as a direct discharge to a navigable water. Specifically, the Tenth Circuit held that the court erred by relying only on evidence supporting the first two Maui factors—time and distance— but it was required to make findings on the additional Maui factors. The district court erred by discounting those additional factors because the parties did not put forth sufficient evidence of them, which the Tenth Circuit determine inappropriately shifted the burden to defendant to provide that its settling ponds were not the functional equivalent of a direct discharge. The court remanded to the district court for further proceedings, including potentially reopening the evidentiary hearing.

In Good River Farms v. TXI Operations, L.P., the Fifth Circuit confirmed that, under Texas water law, a mine owner was responsible for the flooding of a neighboring pecan farm. The owner of the pecan farm sued the owner of a mine property adjacent to the Colorado River, claiming that the mine created a large pit filled with groundwater that flooded the farm property during a 120-year flood event. A jury found the mine owner violated the Texas water code by diverting or impounding the natural flow of surface waters in a manner that damaged the farm’s property and also committed negligence. The jury awarded the farm owner $659,882.00 in damages. On appeal from a motion for judgment as a matter of law, the Fifth Circuit affirmed the verdict. First, the court found that the mine could be held liable under Texas Water Code § 11.086, which applies only to “surface water” and not a watercourse or state-controlled floodwater. The mine argued that once the surface water from its pit touched the Colorado River, it was “state-controlled floodwater,” and the farm could not prove that its damage occurred because of water that came from the mine. The Fifth Circuit disagreed, holding that the property-damaging water did not have to be purely surface water, so long as defendant’s conduct diverted or impounded surface water in a way that causes damage to another when that water overflows. The water did not become Colorado River water and lose its surface water characterization when it left the mine property because it flowed perpendicular to the river, never joining the river’s defined course or channel. The Fifth Circuit also upheld the negligence verdict. The mine argued that it could not be held liable for controlling floodwaters, but the jury found that it was foreseeable that the surface water accumulating in the mine pit could have overflowed and resulted in damage to the farm’s property, and the mine had a duty to control the surface water on its property.

In Signal Peak Energy, LLC v. Haaland, the District of Columbia District Court became the first court to interpret the presumptive two-year deadline for environmental impact analysis under NEPA that was added to the 1970 statute by the Fiscal Reform Act. Signal Peak Energy, LLC, the developer of a coal mine in Montana, sued the Office of Surface Mining Reclamation and Enforcement, alleging than it had a ripe claim for relief since the agency had published a schedule anticipating it would miss the deadline. The agency began its analysis of a proposed mine expansion in December 2022, but by February 2024 it was still at least two years away from finishing. Signal Peak requested a court order requiring the agency to finish the analysis by early December 2024, which the company contended was the applicable deadline. In August, the District of Columbia ruled in the agency’s favor, concluding that the case was “not yet fit for a judicial decision.” While the court conceded it was “unlikely” the agency would meet the alleged December 2024 deadline, it reasoned that because the agency “ha[d] not yet missed” the deadline, there was no statutory violation. In other words, the developer could not sue until the agency had, in fact, missed its deadline. The agency ultimately did not complete its NEPA analysis by the December date, with which the government disagrees. Signal Peak has moved for lifting of the stay. The agency recently responded that because the two-year deadline for NEPA review was added by the Fiscal Responsibility Act amendments in 2023, the two-year clock won’t run out until mid-2025 (still a year ahead of its estimated completion date). The court’s ruling could significantly affect mining and other major infrastructure projects. In essence, the decision means the two-year deadline for NEPA analysis is not prospectively enforceable, so there is no immediate recourse if an agency is behind the statutory pace.

In Friends of the Floridas v. U.S. Bureau of Land Management, environmental plaintiff, Friends of the Floridas challenged the BLM’s decision to approve American Magnesium, LLC’s Foothill Dolomite Mine Project (Project) under NEPA and the Federal Land Policy and Management Act (FLPMA). The Project will involve extraction of dolomite ore from underneath federal lands in southern New Mexico and an off-site refining facility to process the dolomite into magnesium. BLM approved the project in 2020 after finding there would be no significant impact and more detailed environmental analysis was unnecessary. The District of New Mexico ruled largely in favor of BLM, finding that the agency adequately considered the potential environmental effects of the mine project, except with respect to potential water quality impacts from the off-site refining facility. For instance, BLM’s analysis identified that American Magnesium’s operations would produce waste sludges, but it did not consider how those wastes would be stored or handled. Notably, in affirming the bulk of BLM’s analysis, the court noted that, despite the recent “demise” of the Chevron deference doctrine in Loper Bright Enterprises v. Raimondo, the U.S. Supreme Court nonetheless continues to recognize Auer (aka Seminole Rock) deference. Specifically, courts give agencies some deference when they interpret their own regulations—but not statutes. Likewise, courts may rely on an agency’s body of specialized experience for guidance when interpreting statutes. At the same time, the court noted its skepticism about even more limited deference doctrines, including Auer. The court ultimately required BLM to supplement its analysis on the water quality issues, but it allowed American Magnesium to continue with the Project in the interim. The court ruled that vacating BLM’s decision entirely was unnecessary, since BLM simply needed to “better articulate [its] reasoning” for approving the project. Friends of the Floridas recently appealed to the Tenth Circuit. That appeal is currently pending, but the Tenth Circuit’s decision could affect the scope of NEPA review required for major mining projects, and it may also shed light on the appropriate scope of courts’ deference to agencies after Loper Bright.

In Hualapai Indian Tribe v. Haaland, the District of Arizona issued a preliminary injunction against exploratory drilling for lithium deposits on federal land in Arizona’s Big Sandy Valley (the Project). The Hualapai Indian Tribe sued the BLM over its approval of Arizona Lithium Ltd.’s request to conduct lithium exploration activities. The Tribe asserted that by approving the project, BLM had violated NEPA and the National Historic Preservation Act (NHPA). The Project is “adjacent to” an area called Ha’Kamwe’, which includes natural hot springs. The Hualapai people consider this area to be sacred and use it for culturally significant activities. The Tribe claims BLM violated NEPA and NHPA by failing to properly evaluate the potential impacts of the project on the character and surrounding environment of Ha’Kamwe’ and to consult adequately with the Tribe regarding those impacts. The Tribe moved to preliminarily enjoin Arizona Lithium from drilling while the case is pending. The District of Arizona granted the Tribe’s requested relief in early November. The court found that the Tribe was likely to succeed with its NEPA and NHPA claims, that there was a significant risk of irreparable harm to the Tribe’s cultural practices and “degradation of the area’s sacred character,” that it was fair to grant an injunction, and that an injunction would promote the public interest. The court’s decision is significant for major infrastructure projects throughout the nation, including mineral exploration and development. Although the court recognized the critical importance of rapid domestic mineral development to support the clean energy transition, it reasoned that such interests “do[ ] not outweigh the potential damage” of Arizona Lithium’s project to “the Haulapai Tribe life-way.”

In 2024, in Apache Stronghold v. United States, the en banc Ninth Circuit affirmed the denial of a preliminary injunction seeking to block a congressionally mandated land exchange on religious freedom grounds. In 2014, Congress passed a statute compelling the Forest Service to convey approximately 2,400-acre federally-owned parcel in the Oak Flat area to Resolution Copper Mining LLC, in exchange for over 5,000 acres of Resolution’s Arizona land holdings, which will be converted to conservation uses. Resolution plans to develop a large copper mine that, once it reaches production, could supply up to a quarter of the United States’ domestic demand for copper. In 2021, the U.S. Forest Service (Forest Service) authorized the project, but rescinded its authorization after several organizations and tribes, including Apache Stronghold, a nonprofit organization, sued to halt the land exchange. Apache Stronghold argued that giving the green-light to Resolution’s plans for Oak Flat would substantially burden the Apaches’ free exercise of religion—specifically by “destroying” sacred sites—in violation of the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act (RFRA). The District of Arizona, a panel of the Ninth Circuit and ultimately the Ninth Circuit en banc ruled that the government’s management of its own lands can never constitute the sort of “substantial burden” that is redressable under the first amendment and RFRA.

In a 260-page decision initially issued on March 1, 2024, and then amended and reissued on May 14, 2024, the Ninth Circuit affirmed the denial of Apache Stronghold’s request for preliminary injunction. One majority of the court overruled the narrow definition of “substantial burden” endorsed by the original Ninth Circuit panel and concluded that RFRA and the Religious Land Use and Institutionalized Persons Act of 2000 should be interpreted uniformly. A different majority of the court held that RFRA does not prevent the government from disposing of its own land, even if that makes it more difficult (or even impossible) for a person to exercise their religion, so long as the government does not “discriminate against,” “coerce,” or “penalize” religious activity. The second majority concluded that Apache Stronghold was unlikely to succeed on the merits of its claims and thus not entitled to preliminary injunctive relief. Several concurring opinions also supported this conclusion. Five judges dissented, asserting that the alleged destruction of Oak Flat would be a “substantial burden” under RFRA and there should be no exception for government property. Apache Stronghold has petitioned the U.S. Supreme Court for a writ of certiorari.

In Northern Dynasty Minerals Ltd. v. U.S. Environmental Protection Agency, Northern Dynasty Minerals Ltd. and Pebble Limited Partnership (the Plaintiffs) challenged the Environmental Protection Agency’s (EPA) February 2023 Final Determination, in which EPA prohibited the specification and use of certain waters as disposal sites for the Pebble Deposit in southwest Alaska. According to the EPA, “‘discharges of dredged or fill material to construct and operate the [proposed Pebble Mine]’ presented ‘unacceptable adverse effects on anadromous fishery areas’” in the Koktuli River watersheds. On August 15, 2024, over EPA’s objections, the District Court of Alaska granted Plaintiffs’ motion to amend and supplement their complaint to include an additional defendant—the United States Army Corps of Engineers (USACE)— based on claims that the USACE denied a section 404 permit in reliance on the Final Determination. One week later, the court granted intervention, with certain conditions, for three sets of entities that altogether consist of 23 entities that claim cultural, economic, and other interests in the Bristol Bay region. Intervenors include two consortiums of federally recognized tribes, the Bristol Bay Native Corporation, the Alaska Native Claims Settlement act regional corporation for the Bristol Bay region, two non-profit corporations focused on economic development and the commercial salmon fishing industry in the region, and a national advocacy network for the long-term sustainability of Bristol Bay wild sockeye salmon. This suit joins two others filed against the EPA in support of the same mining project—Alaska v. Environmental Protection Agency and Iliamna Natives Ltd. v. United States Env’t Prot. Agency. Litigation over the future of this massive gold and copper ore deposit amongst the numerous parties is expected to continue well into 2025.

II. Federal Policy

The Critical Minerals Security Act of 2024—S.B. 3631—will require the Secretary of the Interior to submit reports to Congress on critical mineral and rare earth element resources around the world and to provide input on strategies for the development of advanced mining, refining, separation, and processing technologies. Within one year of passing the act and every two years after the first report, the Secretary will be required to submit a critical mineral and rare earth element resources report that must include an assessment of resources under the control of foreign entities, availability of critical mineral resources in the United States, and information related to the production, or lack of production, of said mineral resources. The Secretary, in conjunction with the Secretary of Energy and the heads of other relevant agencies, must issue a strategy report, outlining a plan to collaborate with allied countries to develop advanced mining, refining, separation, processing and recycling technologies as well as development of a method to sharing intellectual property related to mineral resource development with allied countries. This bill was passed out of the Senate Energy and Natural Resources committee and placed on the Senate Legislative Calendar under General Orders on November 21, 2024. The House also passed H.R.8446, the Critical Minerals Consistency Act of 2024, which added copper, electrical steel, fluorine, silicon, and silicon carbide to the critical minerals list.

The Mining Regulatory Clarity Act of 2024—H.R. 2925—aims to secure the right to use mining claims for ancillary activities. The bill was drafted in response to the Ninth Circuit’s Rosemont decision, which required Forest Service approval of ancillary facilities on mining claims to be contingent on such claims being “valid,” upending 40 years of mining regulatory precedent and impacting mining projects across western states. The Mining Regulatory Clarity Act clarifies that mineral claimants shall have the right to use and occupy public lands without discovery of valuable mineral deposits if the claimant makes timely payment of location and maintenance fees. It was passed out of the House on May 8, 2024, and referred to the Senate Committee on Energy and Natural Resources on May 9, 2024.

The Energy Permitting Reform Act (EPRA) was introduced on July 22, 2024, by Senate Energy and Natural Resource Committee Chairman Joe Manchin and John Barrasso as a bipartisan permitting reform agreement. EPRA aims to accelerate and streamline the energy infrastructure permitting process vital for the U.S. to ensure affordable, reliable energy while reducing emissions. One primary goal of the EPRA is to expedite judicial review of agency permitting decisions. By modestly increasing review timeline certainty, the EPRA hopes to alleviate the uncertainty and costs associated with protracted challenges to energy projects. In addition, the EPRA would hit numerous areas of natural resources law, including requiring changes in the timeline and availability of certain leases for coal, oil and gas projects; increasing DOI’s goal for permitting renewable energy on federal land; imposing time limits on public interest applications related to liquified natural gas; simplifying regulations related to transmission build outs; requiring categorical exclusions and streamlined permitting for geothermal projects; allowing construction extensions for hydroelectric projects; and clarifying requirements related to federal permits on federal land for oil, gas, and geothermal projects. For mining specifically, section 210 of the EPRA would modify the requirements for a “mill site” claim, clarifying federal laws post-Rosemont. The EPRA would allow mining projects to use mill site claims for ancillary activities on both mineral and nonmineral lands. Currently, mill sites are only permitted on nonmineral lands. Because determination of mineralization is often a long and difficult process, this fix would allow for the use of lands in an economical way. Additionally, it would allow mines to dispose of waste rock within a reasonable distance from the actual mineral recovery site. The changes in EPRA would also allow for the deposit of mill site claim fee revenues into the Hardrock Mining Reclamation Fund.

In Section 40206 of the Bipartisan Infrastructure Law, Congress directed the Bureau of Land Management and the Forest Service to develop a set of performance metrics to coordinate to publish a “performance metric for evaluating the progress made by the Executive branch to expedite the permitting of activities that will increase exploration for, and development of, domestic critical minerals, while maintaining environmental standards.” Shaped by extensive public comment, the BLM Performance Metrics are designed to improve efficiencies in and streamline the permitting process, and BLM has stated it will use them to track permitting performance for all minerals subject to the Mining Law of 1872. The BLM’s major final performance metrics include tracking (i) the percentage of operators that engage in pre-plan submittal coordination with cooperating agencies; (ii) the percentage of milestones met during the mining pre-plan submittal coordination process; (iii) the median time to complete NEPA reviews for mining plans; and (iv) various other reported data, including regarding the size of operations, type of proposed commodities, and whether there is any pending or related litigation.

Congress passed the Good Samaritan Remediation of Abandoned Hardrock Mines Act of 2024, which was signed into law by President Biden on December 17, 2024. The Act directs the EPA to establish a seven-year pilot program to allow “Good Samaritans” to obtain permits to remediate abandoned or inactive hardrock mines and facilities associated with such mines. A Good Samaritan is defined under the statute as a person that is (i) not a past or current owner or operator of the abandoned site; (ii) had no role in the creation of the historic mine residue; and (iii) is not potentially liable under any law for the remediation, treatment, or control of the historic mine residue. Under the pilot program, the EPA “shall” issue up to fifteen Good Samaritan permits, the issuance of which are subject to public comment and will be considered a major Federal action subject to NEPA. The Act sets forth detailed provisions concerning the information that must be included in the permit application, the type of activities that the permit does and does not authorize, and various other provisions. The EPA is also directed to coordinate with other land management agencies and state, local, and tribal governments, when applicable.

III. State cases

In Montana Trout Unlimited v. Montana Department of Environmental Quality, the Supreme Court of Montana reversed the trial court’s revocation of a permit issued by the State’s Department of Environmental Quality for the proposed Black Butte Copper Mine along a key tributary of the Smith River. The court addressed three major issues related to the permitting process, and found that for each one, the agency’s decision to approve the permit complied with the relevant state environmental statutes. Specifically, the agency’s evaluation of the impact of the proposed tailings facility—which involved mixing tailings with cement and other binders and depositing certain concentrations both underground and aboveground—was backed by extensive scientific evidence, expert examination, and engineering tests, and thus complied with both Montana’s Metal Mine Reclamation Act and the Montana Environmental Policy Act (MEPA). The Montana Supreme Court also found that the agency complied with MEPA through its “hard look” at the environmental impact of the mine’s total nitrogen discharges into a nearby creek, and in its consideration of alternatives to the mine operator’s proposed action. The Montana high court’s decision reinstated the Black Butte Copper Mine permit.

In San Carlos Apache Tribe v. State, the Arizona Supreme Court issued the most thorough judicial analysis of what constitutes a “new source” under the Clean Water Act. The case arose after the Arizona Department of Environmental Quality issued a permit renewal for a long-permitted copper mine. The Tribe argued that mine modifications including the drilling of a new shaft required the mine to be treated as a new source. Doing so, the Tribe argued, required the permit renewal to be denied because of the impaired status of the receiving water. Elaborating on the text of the CWA regulations, the court set forth a three-step, sequentially performed analysis for determining if a source is a new source. The analysis considers the nature of the source and when its construction commenced; the source’s relationship to additional sources located on the same site, if any; and whether a new source performance standard is “independently applicable” to the source. Applying its test, the court held that the mine’s relatively newer shaft was not by itself a “new source” under the CWA because it “support[s] the same process that has always existed at the site, which is extracting ore by any means or methods,” and therefore “there are no processes that are substantially independent of the existing process to extract ore.” The court further held that a shaft is not in and of itself a “mine,” and thus the shaft at issue did not have a new source performance standard “independently applicable” to it. The court accordingly found that Arizona Department of Environmental Quality acted within its discretion by issuing to the mine operator a permit renewal for the facility, including the shaft. In November 2024, the U.S. Supreme Court denied the San Carlos Apache Tribe’s petition for certiorari.

In Montgomery, Trustee of Tri-Mont Irrevocable Trusts v. ES3 Minerals, LLC, the Texas Court of Appeals found existence of a floating royalty interest in oil and gas production based on the historic meaning of the deed’s text. There, the Texas Court of Appeals reviewed a 1955 deed, which conveyed a nonparticipating royalty interest using the following operative language: “[T]he Grantors do hereby expressly include in this conveyance, a non-participating royalty of one-fourth (1/4th) of the landowner's usual one-eighth (1/8th) royalty on oil and gas produced and saved from said land” (the Clause). The appellants, successors-in-interest to the grantee, argued that the Clause conveyed a “floating” 1/4 royalty interest, meaning the royalty interest would vary “depending on the royalty in the oil and gas lease in effect.” The appellees, successors-in-interest to the grantors, contended that the Clause instead conveyed a fixed 1/32 royalty interest of total production. The court applied the “fundamental” deed interpretation principle that “a text retains the same meaning today that it had when it was drafted.” Citing the Texas Supreme Court case Van Dyke, the court noted that for “mineral conveyance[s] or reservation[s] executed in the early to mid-twentieth century,” the term “1/8” in the context of royalty interests should be interpreted as “a placeholder for future royalties generally” (meaning a floating royalty interest) rather than a fixed arithmetical value. This interpretation is a rebuttable presumption that reflects historical usage at this time. Given that the clause conveyed “[1/4] of the landowner’s usual [1/8] royalty on oil and gas produced,” the court presumed this meant 1/4 of future royalties generally, i.e., a floating 1/4 royalty interest. Following Van Dyke’s directive, the court then examined the entire deed to determine if its text rebutted this presumption. As it did not, the court reversed the trial court’s decision in favor of appellees and held that the deed conveyed a floating 1/4 royalty interest to appellants.

IV. State Policy

A. Arizona

In May 2024, the Arizona House of Representatives passed HB 2685 to add new requirements to Arizona’s mining statutes. Under new Section 27-112, the Arizona Geological Survey must create a map and inventory “of all known areas that contain aggregate resources and all existing mining facilities” according to county. Arizona’s Mine Inspector may request that the state geologist update these maps and inventories from the previous publication. Section 27-1271 has been amended to include new required content for a mine owner or operator’s proposed reclamation plans. Proposed plans must now also include the distance and direction from the nearest 15 occupied residential structures to an aggregate mining facility, measured from the outside of the structure to the closest crest of excavation. Proposed plans must also include a statement that the owner or operator has notified residential property owners within a half mile of the aggregate mining operation about the proposed plan. This notice must (1) state that the owner may request a copy of the proposed plan from the inspector and (2) be sent at least fifteen days before submitting the reclamation plan. Section 27-1273 has been amended to allow the inspector to consider feedback from the state geologist or other officials when reviewing reclamation plans. Advocates are touting the new law as closing a loophole that would allow mines in Arizona neighborhoods and broaden the power of the State Mine Inspector to consider site-specific circumstances, like the proximity to residences and schools, when reviewing new aggregate mining applications.

B. Idaho

Idaho updated its permitting process for small scale mining, which is defined as “the use of any equipment to dig, scrape, dredge, or otherwise move streambed materials from below the ordinary high watermark in search of minerals.” Miners are required to submit an Idaho Department of Water Resources (IDWR) Small Scale Mining Authorization Permit if they are conducting “small scale mining activity below the ordinary high water mark” of a river or stream channel using mechanized equipment. Small scale mining is also limited to streams and rivers listed as “open” to dredging in the IDWR Small Scale Mining Program Instructions. It is the applicant’s responsibility to check whether streams and rivers listed in their application are open to dredging.

C. Montana

In 2023, Montana passed HB 576 to amend the definition of “material damage” for water resources. The new law limits “material damage…with respect to protection of the hydrologic balance to (1): “significant long-term or permanent adverse change by coal mining”; or (2) “long-term or permanent exceedance” or “adverse change” to a water quality standard if caused by coal mining or reclamation operations.” For alluvial valley floors, “material damages” is limited to “degradation or reduction by coal mining and reclamation operations of the water quality or quantity supplied to alluvial valley floor that significantly decreases the capability of the alluvial valley floor to support agricultural activities.” With respect to subsidence caused by underground mining operations, “material damages” is limited to damages caused by:

1. “any functional impairment of surface lands, features, or structures;”
2. “any physical change that has a significant adverse impact on the affected land’s capability to support any current or reasonably foreseeable uses or causes significant loss in production or income;” or
3.  “any significant change in the condition, appearance, or utility of any structure or facility from its presubsidence condition.” 

The Federal Office of Surface Mining Reclamation and Enforcement (OSMRE) has indicated it will reject this law and its loosening of water quality standards. In a letter to the Montana Department of Environmental Quality (MDEQ), OSMRE official Jeffrey Fleischman stated the bill would limit DEQ’s ability to counter short-term, high pollution events. Fleischman also stated the bill was “inconsistent with” and “less effective” than federal laws. As states cannot adopt mining regulations that are weaker than federal standards, his assessment will likely nullify Montana’s law. The letter required MDEQ to either propose policy changes in 30 days or not implement the new law.