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May 27, 2013
Segregation rule for wind/solar projects

The Department of Interior’s Bureau of Land Management (BLM) has published a final rule that will block mining companies from impeding the development of wind and solar projects on federal land.  The rule gives the BLM the authority to temporarily segregate public lands for which it has a pending right-of-way (ROW) application for a wind or solar project.  Mining companies may not assert new claims on public land segregated under the rule.  In April 2011, the BLM issued an interim final rule that had the same effect as the final rule. 

10,000 MW goal

The final rule is necessitated by the administration’s priority efforts to facilitate and promote the development of renewable energy on public lands and reduce the potential for mining claims that impede BLM’s ability to carry out its congressional and executive mandates.  In Section 211 of the Energy Policy Act of 2005 (EPAct), Congress declared that before 2015, the Secretary of the Interior should seek to have approved nonhydropower renewable energy projects on public lands with a capacity of at least 10,000 megawatts (MW) of electricity. 

The Federal Land Policy and Management Act (FLPMA) provides the BLM with the authority to manage public lands for multiple uses.  In some instances, various uses may present conflicts.  Specifically in this case, a mining claim located within a proposed ROW for a utility-scale solar energy generation facility could impede BLM’s ability to process the ROW application because under the Surface Resources Act, the federal government’s use of the surface cannot endanger or materially interfere with a mining claim.  However, the FLPMA also provides the BLM with broad authority and discretion to allow some uses to the exclusion of others. 

“This final rule is consistent with FLPMA’s multiple use mandate because it helps reduce the potential for resource use conflicts,” says the BLM.

Precedence of mining claims

According to the BLM, the location of a new mining claim during BLM’s review of a solar or wind energy ROW application may interfere with the administration of the public lands since it could, on a case-by-case basis, result in applicants’ modifying their proposals for their use and occupancy of the public lands. This is because under the Surface Resources Act, an ROW grantee cannot materially interfere with prospecting, mining, or processing operations, or reasonably incidental use on a mining claim. 

Therefore, an ROW applicant may choose to modify its application in response to subsequently located mining claims or relocate its proposed surface use to avoid potential conflicts with the claims.  Such modifications or relocations could increase BLM’s processing time and costs for the ROW application if those changes require the BLM to undertake additional or supplemental analyses under the National Environmental Policy Act.

Valid claims?

The BLM notes that over the past 2 years, 437 new mining claims were located within wind energy ROW application areas in Arizona, California, Idaho, Nevada, Oregon, Utah, and Wyoming after those areas, consisting of approximately 20.6 million acres, were identified by the BLM in the 2005 Final Programmatic Environmental Impact Statement for Wind Energy Development.  Also, 216 new mining claims were located within solar energy ROW application areas after those areas were identified as Solar Energy Zones in the 2012 Final Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States.  

The BLM says that some of these mining claims are likely to be valid and/or filed without consideration of the pending ROW application; others are likely to be speculative and not located for mining purposes.

“The latter are likely filed for no purpose other than to provide a means for the mining claimant to compel payment from the ROW applicant or grantee in exchange for relinquishing the mining claim,” says the BLM.  “While it is relatively easy and inexpensive to locate a mining claim because a mining claim location requires no prior approval from the BLM, it can be difficult, time-consuming, and costly to extinguish a claim.”

Segregation under the rule does not affect valid existing rights in mining claims located before any such segregation.  Also, the rule does not allow the BLM to segregate lands covered by ROW applications for any purpose other than wind or solar energy generation.

The final rule was published in the April 30, 2013, FR.

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