2019 article by Brad Jones that was published by GPAA in the June Pick and Shovel Gazette:
PLP proposes amendments to NDAA in support of mining rights
By Brad Jones
After many years of fighting costly court battles, Public Lands for the People has launched a new strategy to defend mining rights for all miners large and small.
This year alone, PLP — working in conjunction with Scott Harn, editor and publisher of ICMJ’s Prospecting and Mining Journal — has made four trips to Washington, D.C. to meet with lawmakers, their aides and federal government departments. And, a fifth trip is expected soon.
PLP’s researcher Clark Pearson was invited to the White House in 2018 and he and Harn recently returned from a second meeting at the White House in April.
“Both meetings were very important to express the concerns of small miners to President Trump’s key advisors,” Pearson said. “For the last three years, PLP has distributed education materials to members of Congress, and for the last two years has been engaging in ongoing meetings with top officials at the Environmental Protection Agency (EPA), Mine Safety and Health Administration (MSHA), the U.S. Forest Service, Department of Interior and even the Pentagon, providing specific language needed regarding regulatory certainty for the mining industry.”
PLP has long held the position that without consistency and clearly defined regulations, America’s mining industry will continue to find itself in peril. For the last few decades, mining groups have been railroaded into state courtrooms to fight the onslaught of overregulation spurred on by sue-and-settle lawsuits from radical environmental lobby groups which have been accused of working in collusion with federal, state and local agencies to restrict mining operations and peddle government land grabs.
Individual states trampling on the federal rights of miners under the law has been the crucible of contention for decades. And, at the crux of all the court battles is the miners’ steadfast belief in their congressionally granted mining rights under the federal Mining Law of 1872, and federal preemption. In other words, miners believe that federal mining law supersedes, or preempts, state law under the Supremacy Clause of the Constitution of the United States, which states that federal law is the “supreme law of the land,” and therefore trumps state law.
“Without a reasonable permit system and access to known and potential mineral deposits, there cannot be regulatory certainty. Without regulatory certainty, there will be no development of critical minerals in the United States and no critical minerals supply chain,” Harn said. “And, without a critical minerals supply chain in America, our national security is continually in jeopardy.”
For these reasons, PLP has proposed amendments to the National Defense Authorization Act. The proposed legislation, “Critical Minerals: National Security Amendments to the NDAA,” is subtitled “Breaking China’s grip on America’s mining and production of critical minerals.” It is further subtitled, “China’s well-executed plan, complicity of the American tech industry and U.S. policy failures led to a major national security vulnerability in critical minerals.”
The proposed amendments, if adopted, would:
- Provide regulatory certainty that is critical for the mining industry and American investment in critical minerals.
- Provide relief from America’s dependency on China and other unfriendly nations for critical minerals essential for our high-tech and military needs, which is essential for America’s national security.
- Help curb the devastating environmental destruction occurring in China, which has profound and unwelcome effects on the United States and the world.
- Help prevent the theft of intellectual property by eliminating the need for American companies to relocate manufacturing to China in order to secure a critical mineral supply chain.
The proposed legislation is available on PLP’s website: PublicLandsForThePeople.org/ndaa
Congress oversees the defense budget mainly through two yearly bills: the NDAA and defense appropriations bills. The authorization bill determines the agencies responsible for national defense, sets funding levels and policies under which money will be spent.
PLP President Ron Kliewer said the NDAA provides a practical means for miners’ voices to finally be heard.
“Our best bet is to get mining rights legislation into the NDAA because Congress has to pass it every year. I don’t see any other way,” Kliewer said. “In the last three years, American companies have made $1.66 billion in mining deals with the Chinese.”
The actual mining, he said, is taking place in China and other countries, and although this is a lucrative arrangement for the Chinese government and American tech companies, it is putting American national security at risk.
After countless hours of legal research, PLP began to develop a new strategy to connect with the powers-that-be in D.C. by educating lawmakers about the importance of mining to national security.
PLP board members were also shocked to discover that some of the so-called national mining advocacy groups appear to be working against the best of interests of small-scale miners.
So, with nowhere left to turn it seemed, PLP decided to go to where the buck stops: Congress and the Trump administration.
“We’ve learned that we can’t get a fair shake in the California courts,” Kliewer said. “The bigger picture is what’s going on nationally and internationally. We’ve learned where to put our efforts to get the biggest bang for the buck, and by getting this proposed legislation into the National Defense Authorization Act, it will take precedence over state jurisdiction.”
“We’re making inroads but we haven’t gotten any legislation through yet,” The proposed legislation is currently going through the final edit and formatting by legislative council on Capitol Hill.” Kliewer said.
The Trump Factor
PLP remains optimistic with the pro-mining and national security policies of President Donald Trump compared to the restrictive anti-mining policies of former president Barack Obama and his administration.
PLP Treasurer Walt Wegner concurred that the Trump administration is more mining friendly and has shown a much deeper interest in the need for securing the availability and independent production of strategic minerals for national defense.
“Trump has changed the direction of where we were going as far as environmental issues. If he could just wave his magic wand, he would help us tomorrow, but this president has a big part of Washington including the Democrats and Republicans against him,” Wegner said. “You’ve got to remember he beat the hell outta the Republicans, too. He’s been fighting an uphill battle since the day he got into office.”
While Trump has voiced many concerns about China’s unfair manipulation of currency and theft of intellectual property rights in the global marketplace, the issue of strategic minerals for America’s national defense rarely, if ever, surfaces in the mainstream news cycle.
“This president is all about national security. He’s going after China. He’s put tariffs on them. China has been ripping us off. This has been one of his main platforms,” Wegner said. “We are importing over 90 percent of our strategic minerals from China, so it is a national security issue. Hands down! We have taken it to the top level of our government’s concern.”
China could shut down the production of rare earth minerals overnight and it would take the U.S. at least two years to recover with its own mining production, he said.
“The military is on board with us but they’re not a political arm. So, I think this president has done a lot to help us, but he’s got a lot on his plate. We’re encouraged that these amendments will go into the National Defense Authorization Act,” Wegner said. “Trump is doing some great things! We haven’t seen a president like this ever. I would say this president is more conservative than any conservative president we’ve had in years and years.”
Despite the new strategy, the fundamental mission of PLP and the vision of its late founder Jerry Hobbs have remained the same since its inception in 1990, said Wegner.
“We haven’t changed our course. We’ve stayed with his vision and we’ve stayed with our no-compromise philosophy. Of course, there is no way to say, ‘Well, Jerry Hobbs would have done this’ or ‘Jerry Hobbs would have done that.’ A lot of people do that, but very few people knew Jerry as well as I did. I was vice-president, so I knew him as far as PLP goes better than anybody.”
For many years, PLP was involved in court battles in support of mining rights, most notably those in support of suction dredge mining when California imposed a statewide ban in 2009.
“What we’ve found through years of litigation — and Jerry Hobbs really recognized this too — is that the courts are corrupt and we weren’t getting justice, especially in California,” Wegner said.
And, although PLP wanted to appeal Judge Gilbert Ochoa’s ruling on the suction dredge cases in California Superior Court, the mining community had grown weary of legal wrangling after small-scale gold miner Brandon Rinehart’s federal preemption case was overturned, and funding completely dried up, Wegner said.
“This left the prohibitive 2012 California suction dredge mining regulations in place that had been promulgated illegally, relying on a phony Supplemental Environmental Impact Report,” Kliewer said.
One of the problems miners face in the courts is that federal mining laws are often vague and should be updated to cover technological advances and more modern mining methods, Wegner said. And, because creating laws is the job of Congress — not the courts or sometimes partisan, rule-making bureaucrats — the best place to start is in Washington, D.C.
Considered archaic by some, the Mining Law of 1872 doesn’t spell out that it’s legal to use a suction dredge on your mining claim, for example, because suction dredges didn’t exist when the law was written.
“We need Congress to speak about a lot of issues on what has happened between 1872 and now. Congress really hasn’t spoken on this,” Wegner said. “We are not going to win in court here. In our opinion, it’s a corrupt system in California. But we can win in court if Congress speaks. That’s why we’ve taken this journey to get our amendment in the National Defense Authorization Act.”
Though PLP’s board of directors pondered the idea of proposing stand-alone legislation, the board knew it would mean digging deeper into miners’ pockets to pay for lobbying.
“We realized that miners, with our meager money, are not going to get stand-alone legislation,” Wegner said. “And, the State of California is never going to help the small-scale miners. We don’t need their permission and that’s why we’ve taken this route.”
Instead, PLP is encouraged with its latest move to educate Congress on strategic minerals and mining rights through proposed amendments to the NDAA.
A Practical Approach
“It’s about national security and minerals. It’s not all about gold,” Wegner said.
While some gold miners may scoff at PLP’s proposed legislation because it’s not hyper-focused on gold mining specifically, Wegner said skeptics may be failing to see the forest for the trees and asked that they try harder to see the big picture.
“Read it, and then read it again,” he said. “They will benefit. What we are pushing for in our proposed critical minerals legislation will support small miners as well.”
Harn agreed that the proposed amendments, if passed, will have a far-reaching, positive impact on the entire mining industry.
“Gold miners will certainly reap the benefits of our proposed critical minerals legislation, but the focus needs to be on critical minerals to get our proposals through Congress,” Harn said.
Whether newly re-established or strengthened mining rights result in the excavation of rare earth minerals used in national defense or other minerals that are refined into metals used for manufacturing solar panels, wind turbines, computers, smart phones, electric cars and all things green, all miners and America itself will benefit, Wegner explained. Critical minerals are a necessary component for everyday items from flat-screen televisions to lithium batteries to aircraft components, radar arrays and missile guidance systems.
“It’s all mined. We know this,” he said.
Wegner acknowledged that mining districts remain one of the most powerful tools small-scale miners possess in their efforts to reclaim or strengthen mining rights on public lands in the western states, but motivating miners to re-establish mining district boards can be like trying to herd cats at times, he admitted.
Though PLP is no longer actively involved in coordinating the re-establishment of mining districts, it still supports the concept.
“Mining districts are the most powerful tool small-scale miners have, but lighting a fire under them or motivating them I don’t know how to do,” he said. “We encourage it. Mining districts could make huge progress on the ground level.”
Wegner stressed the importance of miners continuing to support PLP by backing the proposed amendments to the NDAA, purchasing a raffle ticket, becoming a member or donating funds.
PLP already has the attention of lawmakers in Washington, but with all the activity in D.C. and competition with other groups and causes, the challenge is to keep lawmakers focused on the importance of these proposed amendments, he said. Doing this means traveling to Washington, attending meetings and spending time educating lawmakers about the importance of mining rights.
“We’re a grassroots group on a shoestring budget but we’ve been able to make progress in D.C. because our cause is great. Everybody loves it. It’s for the nation and our security,” said Wegner.
WHAT YOU CAN DO:
- TAKE ACTION! Participate by endorsing PLP’s proposed legislation:
- Become a PLP member, buy a raffle ticket or donate to Public Lands for the People: www.PublicLandsForThePeople.org/join
- Read more about the proposed amendments to the NDAA:
New prizes added as they are donated. For example, we haven’t added Spin-It-Off to the official list yet. Thank you Spin-It-Off for donating to our raffle! This helps raise funds for things like helping get the “Small Miner Amendment” passed into law. We work hard for you, this is your chance to be part of changing what is broken in Public Lands Management. Thank you!