2020 Environmental Real Estate Issues

The US Forest Service (USFS) approved a mining plan of operations (MPO) that called for digging a pit over a mile wide and using 2,447 acres for a disposal area, all within a National Forest. In a suit challenging approval of the MPO, opponents alleged USFS exceeded its authority.

Company Lacked Mining Claims to the Disposal Area
The district (trial level) court determined that USFS acted improperly in approving the MPO, saying USFS incorrectly determined the mining company had valid mining claims on the 2,447 acres proposed for the waste rock. USFS and the mining company appealed, and the 9th Circuit Court of Appeals affirmed, with one dissent.

The 9th Circuit majority and the district court determined that by incorrectly assuming the mining company had mining rights to the 2,447 acres, USFS did not analyze its regulations to determine if those regulations authorized USFS to approve the MPO even if the mining company did not have mining rights to the disposal area. The 9th Circuit ordered the matter to back to USFS for this determination.

Dissent Argued USFS Could Approve Waste Area
The dissent argued that the law authorized USFS to approve the MPO even if the mining company lacked mining claims on the area proposed for waste rock, and that USFS’s regulations were consistent with this authority. According to the dissent, the case should go back to the district court for a limited review to determine if USFS’s approval complied with those regulations in this specific case.

To see the majority opinion and the dissent https://cdn.ca9.uscourts.gov/datastore/opinions/2022/05/12/19-17585.pdf