Showdown at Railroad Valley

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 deemed a 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.” 

By late last summer, lawmakers were furious over Haaland’s land withdrawals, including the Railroad Valley incident, and were generally exasperated with the litigation surrounding the permitting of new mines at a time when everyone was pushing for new domestic mining for critical minerals. “Why [are] the administration and the [interior] secretary blocking access to minerals and making it more difficult … to mine them here at home?” Wyoming Republican Senator John Barrasso argued at a Senate hearing in September, summing up the anger of many of his colleagues. This frustration seemed to deliver unto Washington the rarest of events: broad-based bipartisan consensus that the system governing hardrock mining in this country is in desperate need of reform. After 151 years, the time was finally ripe. 

But that’s also where the consensus ended. As we enter 2024, half of Washington, including the Biden administration, is pushing to scrap the 1872 law and move hardrock mining into the same leasing-and-royalty system that governs other extractive industries, while the other half is pushing for a plan that makes the law’s sweetheart deal even sweeter, removing the few existing governmental guardrails and offering miners an even easier path to use public lands as they see fit. It’s all very Wild West. And this battle, unfolding this year on Capitol Hill, may very well shape the future of American public lands for the next century and a half. 

The 1872 General Mining Act passed in the wake of the Civil War, in an era of Native American displacement, homesteading acts, railroad land grants, and a push to settle the western frontier at all costs. But even in that context, the statute was almost immediately unpopular, decried as backward looking, poorly written, and vulnerable to fraud. In 1880, a public land commission had already published a list detailing the abuses that had occurred under the law in its first years, and by 1897, Congress moved to give the then-nascent Forest Service explicit authority to adopt regulations to protect public resources. (The Forest Service, cowed by the increasingly powerful mining industry, didn’t act.) 

By the turn of the century, as conservationism came into vogue and politics were increasingly veined with a populist fury, the law became an infamous exemplar of how to transfer public wealth into private hands. Under pressure, Congress began slowly reining in the scope of the law by removing from its auspices a range of industries, including coal, oil, and gas, and, later, common forms of building materials like sand, gravel, and stone. The 1920 Mineral Leasing Act, for example, pushed the petroleum industry into a leasing system, in which they could request to use federal lands and pay “not less than” a 12.5 percent royalty to the U.S. Treasury on the public resources they extracted. (The Biden administration recently proposed increasing that rate to 16.67 percent, the first hike in more than a century.) 

By the time this stampede of new regulation petered out, hardrock mining was the only industry that remained under the 1872 law. One reason was political fatigue, says John Leshy, an expert on U.S. public lands law and a former top attorney at the Interior Department. Another reason was that the hardrock mining industry, unlike petroleum, was geographically localized to a handful of big mines in Montana and Utah, making the 1872 law’s giveaway both less visible and less politically salient in faraway Washington, D.C. Yet another reason, Leshy adds, was that lawmakers were hesitant to impose regulations on an industry with a romantic public image. No one wanted to constrain the iconic American miner toiling with his pickax and mule—even if, by the 20th century, the miner in question was likely a giant multinational operation controlled by East Coast financiers. 

The result of this congressional inaction was painful. Over the course of the century that hardrock miners operated with legal impunity on federal public lands, they befouled more than 40 percent of American headwaters and abandoned some 500,000 toxin-leaching mines—a legacy that continues today. “Every day, many millions of gallons of water loaded with arsenic, lead, and other toxic metals flow from some of the most contaminated mining sites in the U.S.,” according to a 2019 Associated Press investigation, “and into surrounding streams and ponds without being treated.” Unlike the coal industry, which is required to pay to clean up its own mines, the 1872 law lets the hardrock miners off scot-free. Instead, American taxpayers are left with the roughly $50 billion cleanup bill, according to the EPA. The economic blow to taxpayers is arguably much worse, since the industry’s pollution likely foreclosed economic development in ways that are hard to measure. You can’t run a fishing outfit on a river where toxic runoff killed all the fish. 

The first real guardrails on this free-for-all arrived in the 1970s with the passage of a raft of new environmental and public lands legislation, including the National Environmental Policy Act of 1970, the Clean Water Act of 1972, the Endangered Species Act of 1973, and the Federal Land Policy and Management Act of 1976. Those laws, and many others, required federal land regulators to perform environmental reviews prior to authorizing mining operations. Pro-mining groups often point at the roughly three dozen federal environmental laws and regulations that now touch different aspects of mining to argue that enough has been done. 

The problem is that this perspective fails to take into account that, when it comes to hardrock mining on federal public land, all those powerful environmental laws and regulations must operate within the 1872 law’s warped legal architecture. Thanks to that law, mining companies generally already have property rights over the public land in question prior to submitting an operating plan to the BLM or Forest Service. That means that those agencies can’t simply say no, full stop, on the grounds that a mine would be a bad use of public lands. Doing so would likely trigger a “takings” lawsuit, in which a company could claim that the agency’s action extinguished its Fifth Amendment–protected property right to the land. This power imbalance dramatically narrows federal land agencies’ authority over hardrock mining. A staffer managing the timber or oil industry can ask, “Is this proposal a good use of public lands?” A staffer managing hardrock mining, however, is backed into a corner: “Since this firm already has property rights over this land, what can be done?” Roger Flynn, an attorney and founding director of the nonprofit law center Western Mining Action Project, says that sentiment is pervasive. “BLM will say, ‘Sorry, it’s nondiscretionary,’ ” he says. “Or, ‘It’s mining, there’s nothing we can do, our hands are tied.’ ”

As a result of this dynamic, the BLM and Forest Service generally approve every new mining plan that comes in the door. In the more than 30 years he’s worked in mining law, Flynn counts only a few instances where either agency denied a mining plan. In 2016, BLM and Forest Service officials said they were “unaware of an instance where an agency had disapproved of a mine plan based on the results of an environmental analysis,” according to a Government Accountability Office report. 

This practice of green-lighting every new mining plan has the effect of shifting the regulatory burden away from the agencies and onto the courts: Staffers just approve everything, then wait to be sued. Usually, the lawsuits are brought by tribal and public interest lawyers on the grounds that a mining plan would violate state or federal environmental laws or regulations. Sometimes these lawsuits are focused on a narrow procedural violation, and sometimes they’re broader in scope, arguing that a mining plan runs afoul of, say, the Endangered Species Act or the Clean Water Act. Most of the time, judges hearing such cases will make as narrow a decision as possible. It’s not a judge’s job to consider broadly the best use of federal public lands. On occasion, a judge will determine that a mining plan is in violation of a federal environmental law and cannot proceed as proposed. But even that decision does not revoke the miners’ property rights over the land; they can always submit a new plan of operation. 

The only end run around this process is a federal land withdrawal—that blunt tool that Haaland used in Railroad Valley. The interior secretary, the president, and Congress all have the power to withdraw lands from new mining claims—but even those withdrawals are not all-powerful. They too are always subject to valid and existing claims. This means that if a miner already has a valid claim to the land, they get to keep it—even if it’s right smack in the middle of a brand-new national park or monument. In 2012, for example, Interior Secretary Ken Salazar issued a withdrawal of federal public lands outside of the Grand Canyon. A uranium mine held claims there, but had not yet begun producing. An Indian tribe and conservationist sued, challenging whether the mine’s claims were valid. But a federal judge sided with the company: Salazar’s land withdrawal could not prevent the mine from moving forward. Biden recently used his authority to establish a national monument on that same piece of land, but that, too, is subject to the mining company’s valid and existing claims. The land is still a national monument—it just has a uranium mine in the middle of it. (With uranium prices rising, the mine is now ramping up operations.) 

This kludgy, court-dependent regulatory process is bad for everyone. Mining advocates don’t like being forced into litigation, and they don’t like land withdrawals, which often unilaterally remove tens of thousands of acres of federal lands from new mining exploration. But conservationists and tribal groups don’t like the process either. Their lawsuits are often the only means by which mining operations are held accountable to existing laws. The process is also expensive, inefficient, and time consuming, and it puts an inappropriate burden on courts. If the federal government were functioning properly, bureaucrats would have both the resources and the explicit authority to examine a new mining plan, determine if it would violate environmental laws, and then, crucially, weigh whether a particular type of mine would serve the public interest on a particular parcel of the public’s land. But they don’t do any of that—not even close. Even as their workloads are ballooning, federal land agencies are understaffed, under-resourced, and underfunded. “The mining companies have essentially unlimited resources to push their mining projects,” Flynn says. “The agencies are so outgunned.” 

Pretty much everyone hates this system—just for different reasons. Native Americans, ranchers, fishermen, and conservationists have been among the most vocal in their complaints, but fiscal conservatives hate it, too, because it allows an industry that produced $90.4 billion in non-fuel mineral commodities in 2021 to pay nothing in royalties for what they extracted from public lands. (“No one thinks simply giving away valuable minerals for nothing makes fiscal sense,” Autumn Hanna, the vice president of Taxpayers for Common Sense, informed Congress in 2021.) There’s even a populist, MAGA-ish argument against it. Conservative folks who live in rural areas bear the brunt of the mining industry’s environmental degradation in their backyards, while foreign and coastal elites take home the riches. They get the gold, the bumper sticker reads, and we get the shaft. 

And, of course, the mining industry and pro-mining advocates hate the current system too, because it’s inefficient and often results in either years of litigation or a land withdrawal. An interagency working group launched by the Biden administration found that it takes most mining projects an average of three to five years to finish their federal environmental reviews, and some take as long as 15 years. “If you’re going to deal with BLM, you better not be an old person,” says Amodei, the Nevada Republican. 

So why is this universally reviled system still the law of the land? It’s long been true in Washington that doing nothing is easier than doing something—and that’s especially true when a small group of well-connected multibillion-dollar corporations benefit from the status quo. The issue has also lacked a champion with enough political heft to whip the necessary votes. In fact, the opposite has been true. For many years, the former Democratic leader Harry Reid, a Nevadan whose father was a miner, kept a tight lid on mining reform proposals in the Senate. 

Even without Reid’s influence, the politics in Washington are tough. While most Democrats support overhauling the 1872 law, they run into stiff opposition from lawmakers in their own party who hail from the handful of western states where most hardrock mining on federal public lands actually takes place. Democratic Senators Mark Kelly of Arizona and Catherine Cortez Masto and Jacky Rosen of Nevada, and independent Senator Kyrsten Sinema of Arizona, for example, benefit directly from the largesse of Big Mining. The National Mining Association and the wealthy players tend to donate generously to campaign coffers. These senators also fear upsetting an industry that employs thousands of people in their states, at above-average wages. This handful of lawmakers enjoys outsized influence in Congress because the 1872 law is niche: It only applies to the 19 states that contain unreserved federal lands, and even then, the majority of hardrock mining on such lands takes place in just 10 western states, and mainly in Nevada. As a result, most lawmakers are not directly affected by the 1872 law and defer to their mining-state colleagues on the issue. 

But there’s reason to believe that after nearly 152 years of trying and failing to reform the 1872 law, change may really be afoot. In the past five years, lawmakers’ attention to securing a domestic supply of critical minerals has ramped up significantly, driven by a rising fear of China, concern over human rights violations, and a rapid shift to clean technologies. This has had the effect of training a spotlight on domestic mining and the 1872 law, even if that’s more politics than sound policy. (The 1872 law is a mess, but the vast majority of the operations that currently fall under it are mining for gold—which is used for making jewelry, not buttressing our national security. And the easiest path for the United States to secure a reliable supply chain for, say, uranium is to forge deals with very close allies, including Canada and Australia, which have a lot of it.)

The industry also has a newly acute reason to push for a rewrite of the 1872 law. In 2022, the Ninth Circuit affirmed the so-called Rosemont decision, which found that the 1872 law does not allow miners to dump tailings and waste rock on ordinary (nonvalid) mining claims on public lands, as they’d always done. They must instead get the government’s permission to use federal lands for that purpose. The decision “exposed a defect of the 1872 law,” Leshy says, “that environmentalists hoped would push industry to negotiate reform.” 

So what, exactly, could reform look like? The Biden administration, as well as most Democratic lawmakers, support scrapping the 1872 law and moving hardrock mining into the same system that governs all other industries on federal public lands: You’ve got to ask permission first, then lease the land, then pay royalties to U.S. on the valuable public resources you’ve removed. “I’m not saying we need to rewrite mining law every century,” former Deputy Interior Secretary Tommy Beaudreau told reporters with a wink after releasing a 169-page interagency report on mining reform in September. “But maybe every other century.” The report recommended sending a portion of the collected royalties back to the states where the mining occurred, to support local communities. (And, perhaps, sweeten the deal politically in mining states.) It also recommended a series of tweaks to make environmental reviews more efficient and faster for critical minerals, as well as avenues requiring the input of Native Americans and other communities who live near a proposed mine site. 

For years, New Mexico Senator Martin Heinrich and Arizona Representative Raúl Grijalva, both Democrats, have each proposed versions of a similar plan. They argue that Native Americans must have a voice in the permitting process, and that federal land managers ought to have the power to deny mining permits that are unnecessary or inappropriate, or pose too large a risk to cultural sites, water, wildlife, or the recreation industry. In 2023, their combined bill suggested between a 5 and 8 percent royalty for existing mines. The bill was endorsed by hunter and angler advocacy groups and by wildlife advocates. 

The proposal with by far the most energy on Capitol Hill—endorsed by both Republicans and mining-state Democrats, as well as by the National Mining Association—would, against all logic, double down on the 1872 law. The Mining Regulatory Clarity Act, a bicameral, bipartisan bill, would remove the part of the 1872 law that requires that miners discover valuable minerals before receiving a valid property right over the land. Instead, the bill says that miners’ claims would be valid immediately. You’d just be able to walk onto federal public land, hammer in your stake, and voilà, you’ve got yourself a constitutionally protected property right. The bill’s sponsors say such language is necessary to streamline litigation, clarify the part of the law targeted by the Rosemont decision, and limit bureaucratic power, like interior secretary land withdrawals, which would no longer apply to any land that had been claimed by anybody for any reason. 

Those who oppose the bill, meanwhile, are mashing the panic button. The provision requiring that miners discover valuable minerals before securing property rights has been in the 1872 law since its passage, and for good reason, says Leshy, the public lands expert. Without it, he predicts an explosion of litigation and extortion as opportunists amass legal property rights over tens of millions of acres of unreserved public land—knowing that when anyone, including the government, wants to use that land for any reason, they’ll have to pay up. 

It’s hardly a theoretical danger. In the years after the 1872 law passed, former Arizona Senator Ralph Henry Cameron snapped up mining claims on a popular Grand Canyon trail and began extorting admissions fees from park visitors. In 1920, the Supreme Court shut him down, on the grounds that he had not discovered valuable minerals on those claims: You gotta prove there’s gold in them hills. Forty years after that, a prospector named Merle Zweifel pulled an even more ambitious stunt, staking mining claims on hundreds of thousands of acres of public land, including along the proposed route of an aqueduct in Arizona, hoping to force the government to buy them back from him. After years of litigation, courts eventually ended Zweifel’s attempt at extortion, too, on the same grounds. 

And yet, among the reform options, the Mining Regulatory Clarity Act has by far the most support, and at a time when everyone in Washington is eager to cheerlead for domestic access to critical minerals, it’s easy to imagine it slipping quietly into law. If it does, the question at the heart of the tricky Railroad Valley showdown, and dozens of other land use disputes—how should our public lands be used to serve the greatest public good?—will not be answered by those who represent us, but by those who are quickest to lay claim to the biggest slice of our pie.