On December 4, President Trump issued two sweeping proclamations attempting to eliminate more than 2 million acres from Bears Ears and Grand Staircase-Escalante National Monuments in Utah. In doing so, the president argued the national monuments, designated to protect picturesque canyons and thousands of Native American cultural sites, posed restrictions on “economic use” (i.e. mining and drilling) of those lands. Though the fate of these likely illegal actions will play out in the courts, one key provision is set to take effect in just a matter of weeks: opening those two million acres to new mining claims.
Pursuant to President Trump’s proclamations, public lands cut from Bears Ears and Grand Staircase-Escalante will be open to new mining claims and energy developers at 9am EST on February 2. This is particularly relevant for Bears Ears National Monument, which contains known deposits of uranium, vanadium, and other minerals. Indeed, one uranium company, Energy Fuels Resources, lobbied the Trump administration to slash the monument to enable future development.
Understanding the impact of the president’s actions requires learning a bit about mining claims, a process governed by a law passed more than a century ago.
How did we get here?
During the California gold rush of 1849, miners often found themselves in a legal vacuum, uncertain of the legal parameters of exploring for and producing gold from public lands. Trying to create order, miners often formed camps and adopted rules providing the individual who discovered minerals with the rights to mine them, mimicking Mexican laws that had previously governed California.
In 1872 Congress passed the General Mining Act, seeking to give certainty to miners and provide an incentive to settle the West. This act, often referred to as the 1872 Mining Law, lays out the processes for an individual or company to stake and develop a mining claim. That law, established almost 150 years ago, still guides mining on public lands.
What is a mining claim?
A mining claim is essentially an exclusive right for a person or company to extract minerals from a specified area of public lands. For the mining claim to remain valid, claimants — the holder of a mining claim — must pay the federal government an annual fee.
Under the 1872 Mining Law, mining claim owners can apply for their claims to be “patented.” Under a mineral patent, the federal government transfers title of the land to the claim owner, making it private land. However, since 1994, Congress has prohibited the Bureau of Land Management from accepting new applications for mineral patents.
What can you mine?
From gold to gravel, there are many different things that can be mined. However, on public lands, mineable minerals fall into three categories — locatable, leasable, and saleable — all governed by different laws. Saleable minerals, such as gravel, are governed by the Materials Act of 1947. Leasable minerals, such as oil, gas, and coal, are governed by the Mineral Leasing Act. Locatable minerals are what we’re discussing in this piece — things like gold, silver, and uranium — they are governed by the 1872 Mining Law.
A key difference between these three laws, is that the right to drill for oil and mine for gravel (leasable and saleable minerals) is discretionary — the government has the power over where and when to lease those rights — while for uranium and gold (locatable minerals), the government essentially has to honor the rights of the first person to stake a claim.
Where can you stake a mining claim?
Mining claims can be staked on lands in the public domain — land ceded by the original states to the federal government, as well as land acquired from Native Americans and foreign countries, that has remained in federal control. Practically, this means mining claims can be staked on most public lands west of the Mississippi River.
Some public lands, such as national parks, wilderness areas, and wild and scenic rivers, are off limits to mining claims. When a president designates a national monument, all existing mining claims are honored, but new claims are not allowed.
How do you stake a mining claim?
The process of staking a mining claim seems, well, straight out of the 1800s. After confirming that a piece of public land is open for claims, one simply has to plant a stake in the ground (or build a pile of rocks), attach a written notice, and in most states place stakes at the four corners of your claim. For the claim to honored, the claimant must pay a set of modest fees and record the claim at the local Bureau of Land Management office and county clerk’s office within 90 days (some states require shorter periods of notification, such as 30 or 60 days).
How can you use a mining claim?
While the owner of a mineral claim possesses the exclusive right to develop minerals within a certain parcel of public land, the federal government still owns the surface rights. To develop a mining claim and extract minerals, the owner must first contact the relevant land management agency (BLM, USFS), file appropriate paperwork, and post a bond (money the government can use to clean up mining operations should the owner abandon the claim or go bankrupt). For example, on BLM lands, claimants wishing to begin smaller operations, such as collecting rock samples with hand tools or exploring tunnel locations, must submit a written notice. Those wishing to begin larger plans that would disturb more than 5 acres must file a plan of operations.
What does this mean for Bears Ears and Grand Staircase-Escalante?
Both Bears Ears and Grand Staircase-Escalante have seen decades of mining interest before becoming national monuments. While coal has been the focus in Grand Staircase, there are some uranium deposits within the newly unprotected areas. Mining in Bears Ears has traditionally focused on uranium, and thousands of mining claims have been staked over the last century, particularly during the uranium boom of the 1950s and 60s.
Today, Energy Fuels Resources owns and operates a uranium mine and mill just outside the boundaries of the monument, and is connected to dozens of claims in the area. When Secretary Zinke visited the region, representatives for the company shadowed him, passing out maps of proposed cuts to the monument. Phil Lyman, a local county commissioner pushing for the monument’s elimination, noted “They wanted to talk to anyone who’d listen.” The full extent of the company’s demands is evident in their May 25 letter to Secretary Zinke, in which they asked for dramatic reductions to the monument, arguing “there are also many other known uranium and vanadium deposits located within the newly created BENM.”
Further exploration and development of uranium deposits is largely dependent on the market price of uranium, which has declined significantly in recent years. Some see an opportunity for prospecting, staking claims while prices are low, then waiting to sell or develop those claims when prices are high.
President Trump’s decision to dramatically shrink these two national monuments is likely illegal, as the Antiquities Act gives the president authority to designate a national monument, but not to eliminate or dramatically shrink one. This creates an incentive for people and companies to stake mining claims now, before those proclamations may be overturned in court.
On February 2, at 9am EST, President Trump’s proclamations will essentially turn back the clocks on Bears Ears and Grand Staircase-Escalante, transporting them back to the wild West of the 1800s, where anyone could stake a claim and strike it rich. And critically, because hardrock mining is governed by an outdated 1872 law, the government essentially has to honor any and all new mineral claims made in the once-protected region.
While new mines will not pop up overnight, locking in the rights for people and companies to mine minerals like uranium will endanger the stunning landscapes and cultural heritage that led past presidents to protect these places as national monuments.