Spring greetings to you from a rapidly greening Great Basin. The flowers have crisped up and blown away in the low Mojave desert, but there’s still some blooms to be found at elevation. But what I’m really excited about now is the Great Basin kicking into high gear. There’s a band from Reno to Lone Pine and extending west along Highways 6 & 50 to the Utah border that all got 200%+ of normal precipitation. For much of that area, it’s the wettest winter on record. The flowers this summer will be remarkable. I drove Highway 6 the other day, and found extensive fields of scale bud (Anisocoma acaulis) growing in one of the lower elevation valleys. Lots of germination near Lunar Crater. Prepare yourselves, give it a month, and the Great Basin is going to explode in flowers. You read it here first.
Onward to the news, and we’re back to our normal format this edition. I’ll revisit longer form narrative pieces from time to time, but this missive started as a news dissemination and commentary service, and I don’t want to lose sight of that aim. So without further ado…
With Friends Like These… Oh, Who Am I Kidding, She’s Not Our Friend
Lots of dramatics in the mining policy world in the past few weeks, as environmental advocates have demonstrated that they can truly bring people together, in this case Democratic politicians and the mining industry, simply by being effective.
It all starts with the badly antiquated 1872 Mining Law and how federal agencies today deal with a law that was written for a very different mining industry using vastly more primitive technologies on vastly smaller projects. The law is incredibly permissive and lets mining companies get away with just about whatever they want. As is often the case with large developments and NEPA litigation, much of the legal wrangling is more on the margins of the permitting process, going after one or two legs of a 10-legged stool, instead of a full-frontal assault.
So the controversy in question here revolves around the validity of mining claims. A mining claim, a stake put in the ground signifying a parcel of land being claimed, is only valid if there is a discovery of a valuable mineral deposit. The existence of the valuable minerals is part of what defines the validity of a mining claim. This is important because in order to operate a mine and ancillary facilities, one needs mining claims on public land to conduct the operations on. Which means that, for the whole of the project site, there must be valid mining claims, with the presence of valuable mineral deposits. Now this seems fairly logical – if you’re going to put a mine somewhere you want valuable mineral deposits underneath to, you know, mine. But it gets more confusing when we start talking about the ancillary facilities at a mine. And in particular, the thing that takes up more space than any other facet of mining operations – the waste rock dumps.
In a precedent set by the Center for Biological Diversity and the Western Mining Action Project in their fight against the Rosemont Mine in Arizona, the 9th Circuit determined that, in fact, in order to dump waste rock on public lands, one needs valid mineral claims on the proposed dump site, and thus there must be a discovery of valuable mineral deposits beneath the area one wants to dump the waste rock. This ruling had the effect of stymying the Rosemont Mine, but also had far-reaching effects across the mining sector.
And several subsequent rulings in Nevada really blew things up on this issue. First, in the Thacker Pass case, Judge Miranda Du ruled in February that the Rosemont precedent did apply and that Lithium Americas had improperly designated lands for dumping waste rock where they had not established valid mineral claims. While she declined to vacate the EIS, she did remand the issue to BLM to determine if Lithium Americas had valid claims for the project’s waste rock dumps. Then, in the Eureka Moly case over a proposed molybdenum mine in Eureka County, in April Judge Larry Hicks not only made a similar finding but he also vacated the approval of the EIS, sending the mining company and BLM back to square one and sending a shockwave across the mining policy world.
All of this was most distressing to the mining industry, who is used to doing whatever they want wherever they want whenever they want with few if any encumbrances from those land managers with rubber stamps in hand. So they went to one of their biggest champions in Congress, none other than Nevada Democratic Senator Catherine Cortez Masto. And CCM proceeded to give the mining industry exactly what they wanted, by introducing legislation to “fix” the Rosemont issue.
Sen. Cortez Masto’s bill, S.1281 – the “Mining Regulatory Clarity Act of 2023,” would remove the requirement for discovering valuable minerals from a mining claim validity examination. Thus meaning that mining companies could go out and claim just about any public land they want (so long as it’s open to mineral entry, i.e. not Wilderness, etc.), regardless of whether there’s anything worth mining there, potentially setting off a huge rush of mining claim activity across the West.
Also, because CCM is such a benevolent, generous benefactor for the mining industry, she didn’t just limit her bill to “fixing” the Rosemont issue, she also threw in another giveaway, making mining companies exempt from normal BLM right-of-way requirements for ancillary facilities. For instance, right now, if you need to build a new road, transmission line, pipeline, or other facility for your mine that primarily is located outside of the mine’s boundaries, you need to apply for a BLM right-of-way, just like anyone constructing a transmission line or pipeline would have to do. CCM’s bill would let mining companies permit such facilities as a part of their mining operation. It’s basically gutting BLM’s ability to manage public lands, instead making everything at BLM subservient to mining companies and the 1872 General Mining Law.
Did we howl in protest? Yeah, we howled in protest. I even called Sen. Cortez Masto a puppet for the mining industry. But it may be so much sound and fury. With three Republican cosponsors (Sens. Risch, Crapo, Murkowski) as well as the execrable Sen. Kyrsten Sinema, CCM doesn’t need many Dems to hop on board to get this bill across the finish line. And of course, CCM has been billing this as a clean energy bill, saying that the Rosemont precedent will get in the way of lithium mining. So it’s got a veneer of progressive policy pasted onto it. We will continue to resist Cortez Masto’s shameful giveaway to the mining industry, but I’d say we face long odds on this issue. Stay tuned.
I want to give a tip of the ol’ chapeau to Alli Henderson at the Center, one of our top mining attorneys and lead on the Rosemont case; Roger Flynn at the Western Mining Action Project, one of the lead attorneys on all three of the cases in question (Rosemont, Thacker, Eureka Moly); and John Hadder at Great Basin Resource Watch who has led the resistance on the two Nevada projects. When you are so damn effective at your job that members of Congress are introducing legislation just to un-do your work, well… Ms. Henderson, Mr. Flynn, and Mr. Hadder all have my gratitude and admiration.
Finally, I’ll send you to two contrasting opinion pieces. First, friend-of-the-newsletter Dexter Lim, lately of Sunrise Vegas but also a full-time student at UNLV, has a great op-ed in The Nevada Independent. Mx. Lim is eloquent and hard-hitting, and if lines like, “Deregulation to mine our way out of the climate crisis… makes little to no effort to critically assess the impacts that long incommensurate oversight and structural injustices continue to have on communities that are already historical victims of the same rationale applied to mineral extraction and use” excite you, then I must recommend you read their op-ed. And second, the Las Vegas Sun editorial page opined in favor of CCM’s legislation. Seems like it was as much about praising the good Senator as it was about her actual policies. Strangely, though, the Sun failed to include a disclaimer about the owner of the paper also being on the board of Barrick Gold.
Read more: Associated Press on the bill and the reaction, Nevada Current commentary, CBD & allies press release, Steve Sebelius commentary in the Review-Journal, Dexter Lim op-ed in The Indy, Las Vegas Sun editorial.
The Lands Bill Rush of 2023 Begins
We all know they’re coming. In 2023, bolstered by favorable committee appointments and a political climate in DC that seems far more interested in pleasing benefactors than holding to principles, a veritable deluge of awful quid-pro-quo-conservation lands bills will flow from the DC offices of Nevada’s congressional delegation. And it has begun, with the floating by Senator Jacky Rosen of a discussion draft on the Washoe County lands bill. Officially called the Truckee Meadows Public Lands Management Act (or TMPLMA – “timp-luh-muh”), the bill is a classic Nevada lands bill which would allocate public lands for disposal for development while designating various conservation areas. It’s got the usual broad swath of support from development interests, their handmaidens on local elected bodies, and, unfortunately, environmental groups.
The bill would designate 14,606 acres of public land for disposal in southern Washoe County, mostly to the east and northeast of Sparks. To be honest, this is far, far less than earlier versions of this legislation. In some ways, the degree to which this disposal area has been rolled back in size is a win in and of itself for those of us who resist such things. Earlier proposals were many times larger than that.
The bill would also designate 223,109 acres as Wilderness and 456,292 acres as National Conservation Areas (NCAs). This is a new tack in these lands bill schemes – reducing the ask on Wilderness and instead getting those lands designated as NCAs. We saw this in the Fallon legislation that passed last year, where the Stillwater Range was released from Wilderness Study Area (WSA) protections but turned into an NCA instead of Wilderness. Now, not being privy to such discussions, I’m not sure what the rationale for this is. NCA is a notoriously squishy designation, having no specific statutory management regime, and whatever protections it entails, they are of a lower level than the gold standard for public land protections, Wilderness. Seems like a bad deal to forgo rigorous Wilderness protections for squishy, ill-defined NCA protections. But hey what do I know? I’m just a guy who wants to stop public land giveaways.
TMPLMA is but the first in what will be a series of lands bill coming out this year. The wind is at the backs of the lands bill industrial complex, and it does seem like the breeze is kicking up.
Read more: Reno Gazette Journal, KRNV, Sen. Rosen press release, bill boosters’ website landsbill.org.
Bi-State, More Like Dire-State
The bi-state sage-grouse saga took another turn recently, as the U.S. Fish and Wildlife Service for the, drumroll… third time! put forward a proposed rule to list the bi-state distinct population segment of the greater sage-grouse as a threatened species. Twice before they have put forward proposed rules to list the bi-state sage-grouse as a threatened species. Twice before they have withdrawn the proposed rule after “stakeholders” came together with a “conservation plan” which, in the dim view of bureaucrats at the Service, were adequate to prevent the need for listing the bird. And twice, the Center and our allies have sued FWS and won, forcing them to go back to the drawing boards.
The bi-state sage-grouse has a very small population and lives in just a handful of places, primarily in Mono County, California; but also with populations in Douglas, Lyon, Mineral, Carson City, and Esmeralda Counties in Nevada and Alpine and Inyo Counties in California. There are just a few thousand of these birds, genetically distinct from and geographically isolated from the much wider-spread greater sage-grouse. They face threats from habitat loss, cattle grazing, cheatgrass invasion, mining, and raven predation.
The bi-state sage-grouse is a great example of the fallacy of collaborative conservation agreements in lieu of Endangered Species Act listings. BLM and Mono County are steadfastly against listing species, so they keep tying themselves and the law in knots trying to convince everybody that this bird, which is so obviously trending toward extinction, isn’t endangered because…. They’ve cut down a bunch of trees? Yes, this is where we find some of our issues colliding. BLM’s main response to the proposed bi-state sage-grouse listings has been to boast about how much pinyon and juniper they’ve cut down.
It's entirely possible that the Service is, yet again, going to withdraw this proposed listing rule and we will, yet again, have to go back to court. But this time, we are hoping that science and the law will finally prevail.
It's also time for another shoutout. The saga of the bi-state sage-grouse is such a testament to the tenacity of my Center colleagues Lisa Belenky and Ileene Anderson. They are warriors for the California desert, and have stuck with this issue time and again for years and years. I can’t wait to make a toast to them when science prevails and the bi-state sage-grouse gets protected.
Read more: Associated Press, nice story from Amy Alonzo at the Reno Gazette Journal taking a field visit to a lek.
I’ll Take the Spacemen Over the Lithium Miners, Thanks
BLM recently finalized an administrative withdrawal of over 22,000 acres of land in Nye County for none other than the National Aeronautics and Space Administration (NASA) in beautiful Railroad Valley. It turns out that big, beautiful playa in the middle of Railroad Valley is the darkest flat place, or the flattest dark place, in the country, which makes it indispensable for NASA. Not for launching spaceships or building spaceports, but rather for satellite calibration. They need places very flat and very dark to calibrate their satellites. This is a pretty ideal type of withdrawal then – the land will be closed to mineral entry, oil leasing, and other extractive uses, but NASA won’t actually be doing anything out there. Just protecting it as a flat, dark place.
Of course Nye County is hopping mad. In fact the County Commission passed a resolution [PDF] in 2021 opposing the withdrawal. They’re upset because they are concerned that the withdrawal will impact economic development opportunities in Railroad Valley – namely oil drilling and lithium mining. And yes, that’s accurate inasmuch as those are exactly the uses NASA is trying to protect the Railroad Valley playa from. There are hundreds of oil wells already in Railroad Valley (we’ve had a long-running fight to stop oil drilling there) and there is a pie-in-the-sky proposed lithium project from 3PL Operating. You may be aware that there are also numerous endemic species in Railroad Valley, including the federally listed Railroad Valley springfish, the Railroad Valley toad which we petitioned for ESA protections in 2022, a population of a rare orchid in the Spiranthes genus, and even an endemic dwarf globe mallow! Railroad Valley is a really special place.
Well it turns out that nobody at NASA or really anyone else cares what the Nye County Commissioners or pie-in-the-sky lithium miners think. BLM approved the withdrawal in the Federal Register a few weeks ago and that’s it – it’s withdrawn. Now of course, 3PL has presumably valid existing rights to their mineral claims out there, so the interaction between the two factors will certainly be interesting if and when 3PL gets to permitting with BLM for their mining operation. They have a good many other hurdles to jump over before they get there however, not least of which is the protests against their water rights applications filed by the Center, BLM, FWS, NDOW, and BIA.
At any rate, the battle for the future of Railroad Valley and the biodiversity that thrives there will rage on, but in the meantime NASA did us all a solid by locking up at least a portion of the valley to keep it just like it is – flat and dark.
Read more: Story in Pahrump Valley Times from last year; BLM press release on withdrawal; Federal Register notice.
Is It An Open Air Trash Dump… Or The Next National Monument?
There’s a movement afoot to designate the open-air trash dump along East Lake Mead Blvd. just beyond the limits of urban Clark County as a new national monument. The area, host to a geological curiosity called the Great Unconformity, and the paleontological curiosity Gypsum Cave, and also home to a significant portion of the global population of the Las Vegas bearpoppy, is honestly one of the most messed up areas of wildland-urban interface you’ll ever find. I used to live out that way, I recreated on these lands every day. It’s very sad. I found numerous dead pets wrapped in rugs or put in garbage bags and dumped out there. I saw dead human bodies on two occasions as well. It has far and away the most trash I’ve ever seen on public lands. People, contractors, landscapers, whoever, just drive out there and dump their loads. It’s also a place where people go to party and watch sunrise after a wild night on the Strip. People drag race there. Like just think of all the terrible stuff that people refrain from doing right within a city, now just go right outside the city onto public lands, and this is where all that terrible stuff happens.
Now look, the public lands sandwiched between urban Las Vegas and Lake Mead NRA are certainly nice in their own way – Frenchman Peak is a great hike, Rainbow Gardens is a geological wonderland and quite bizarre and pretty, the Las Vegas bearpoppy is a special plant and needs all the help it can get. And these lands are directly adjacent to East Las Vegas, a majority Latine community which has been historically underserved. Community members deserve to have the public lands near their homes to be vibrant and conserved, not a trash dump.
What the public lands east of Las Vegas need is a handful of full-time law enforcement rangers, some permanent dumpsters and a regular clean-up crew, and some educational signage. It’s sort of strange because normally a national monument campaign is meant to protect the best public lands, whereas this seems to be intended as a mechanism to rehabilitate the worst-managed public lands. I feel like adequate investment in our public land management agencies is the most important factor we should be pushing to protect these lands.
Read more: Las Vegas Weekly, Las Vegas Review-Journal.
Dead (Horse) In Its Tracks
The Southern Utah Wilderness Alliance (SUWA) scored a rare victory over a lithium mining exploration project recently. I say rare not because SUWA doesn’t win victories – they do – I say rare because beating back a mining exploration project is incredibly difficult. The 1872 Mining Law and FLPMA are very permissive for mining exploration activities and BLM functionally rubber stamps them, generally forgoing all but the most cursory of environmental reviews until the project development stage. But this wasn’t just any lithium exploration project, this was on UT-313, the highway leading to Canyonlands National Park and Dead Horse Point State Park. We are talking about some of the most beloved desert landscapes in the world. SUWA obviously treated this exploration project very seriously and filed an appeal on BLM’s approval of the project. And they prevailed – BLM overturned the decision and sent it back to the field office for further analysis. Wow! I fight mining projects all day, and we almost never just straight up win. SUWA, god bless ‘em, is entrusted with defending these world-renowned landscapes, beloved by millions, and they earned their Wheaties today. Kudos to the attorneys and activists at the Southern Utah Wilderness Alliance. As the iconic yellow sticker has said, much to the chagrin of generations of rural Utahns: “Protect Wild Utah”!
Read more: SUWA Press Release.
Clark County’s Got Beef With the Lung Association
Oh it’s one of my favorite times of year – the time of year when the American Lung Association releases its report card of the most polluted air quality cities in America, and then Clark County gets on a soap box and shouts to anyone who will listen about how its not their fault. It’s one of the most hilarious annual rituals in Nevada enviro world; it’s like clock work.
The Lung Association of course is concerned with the air that people breathe. People in Las Vegas know damn well that their air is horrible. Go to the rim of the valley on a bad day and look toward the center – a brown-yellow pall hangs in the air. There’s a permanent low-level ozone warning for like 6 months starting in April each year. Clark County has elevated levels of childhood asthma and hospitalizations for child breathing problems. It’s blatantly apparent to everyone that Las Vegas’s air sucks.
But don’t tell the thin-skinned Clark County Department of Environment and Sustainability. It is in their interest, and the interest of the real estate developers that they serve, to convince everyone that Las Vegas’s air is fine, there’s no problem here, surely we don’t need to stop creating dust or vehicle exhaust by slowing down the decades-long bacchanal of Southern Nevada construction. So when the Lung Association gives Las Vegas’s air an F grade, the DES takes exception with the report, disputes the data, blames California, blames climate change, blames basically anything except the bad development and transportation policies that got Clark County into this mess to begin with.
The annual beef between Clark County and the American Lung Association comes every spring, and it always gives me a good chuckle.
Read more: Las Vegas Review-Journal, American Lung Association “State of the Air: Clark County”.
A Fascist Despot, a Sagebrush Rebel, and a Democratic Senator from Nevada Walk Into a Bar…
What do disgraced former president Donald Trump, disgraced and never-confirmed BLM Director William Perry Pendley, and not-yet-disgraced-but-look-at-the-lead-article-in-this-newsletter Nevada Senator Catherine Cortez Masto have in common? They all support selling off public lands for urban development! Trump has been on the campaign trail stumping for using federal land to build “Freedom Cities.” Cortez Masto has been pushing her Clark County lands bill, which would sell off public lands sufficient to build a new city the size of St. Louis between Las Vegas and the California border. And Pendley recently penned an op-ed in the RJ praising Trump’s plan, and its echoes of Harry Reid’s original Clark County lands bill, SNPLMA. One big happy public-lands-sell-off family.
Read more: Politico on Trump’s “Freedom Cities,” and William Perry Pendley op-ed in the Las Vegas Review-Journal.
That’s all for now. Keep on down that long and dusty trail,
-Patrick
Back in the late '80s and 90s when I used to watch CSPAN, Dale Bumpers (D-AR) tirelessly advocated for mining reform, only to be defeated by a coalition of Republican and Democratic western senators. The more things change, I guess. I fear the mining rush is going to turn large swathes of land across the planet into gigantic piles of toxic slag heaps.
https://earthworks.org/blog/remembering_senator_dale_bumpers/