Hon. Pam Bondi, Attorney General
Sen. Mike Lee, Chairman of the Senate Energy and Natural Resources Committee
Hon. Doug Burgum, Chair, National Energy Dominance Council
Hon. Brooke Rollins, Department of Agriculture
Hon. Karen Budd-Fallon, Associate Deputy Secretary, Department of the Interior
Subject: Protecting American Energy From State Overreach, EO# 14260
Dear Fellow Americans,
First, thank you for your dedication to unleashing America’s Energy Potential, Mineral Wealth and Independence from China.
Federal lands in Oregon hold vast deposits of critical and locatable minerals—antimony, cobalt, copper, gold, lithium, manganese, mercury, nickel, silver, telluride, zinc, and others—vital to national security and economic growth as prioritized by now four separate Executive Orders (EOs). These minerals, found on federal lands, within the state of Oregon, are essential for energy, technology, and defense. However, Oregon’s regulatory framework imposes severe restrictions that obstruct these federal mandates, burden miners, and undermine national interests. We urge immediate reforms to align state policies with federal law, leveraging federal preemption to secure miners’ rights and resource access.
Critical Minerals and the State of Oregon’s Imposed Barriers
Oregon’s state laws and regulations hinder mining on federal lands through costly permits, environmental overreach, and operational restrictions. The following statutes and rules create significant impediments:
Oregon Mined Land Reclamation Act (ORS 517.702 to 517.989)
Impediment/Financial Burden: Requires a DOGAMI operating permit (~$2,000) for surface mining over five acres, mandating detailed reclamation plans and concurrent restoration. Small miners face delays and costs for environmental baselines and inter-agency approvals, even on federal lands.
Impact: Slows project timelines and increases expenses, with multi agency ambiguous, overlapping permits. This causes delays, with sunset dates that expire before permitting is approved, deterring small-scale operations despite federal mining rights.
Water Quality Permits (ORS 468B and OAR 340-045)
Impediment/Financial Burden: Mandates DEQ NPDES permits (~$2,600-$28,000+) for discharges and WPCF permits for wastewater, with strict monitoring for placer mining. Seasonal restrictions to protect fish habitats limit operational windows.
Impact: Adds significant compliance costs and restricts methods like dredging, conflicting with federal allowances for mineral extraction. Previous in water work periods have been dismantled, unscientific turbidity rules applied.
Removal-Fill Law (ORS 196.800 to 196.921)
Impediment/Financial Burden: Requires DSL permits (~$500-$2,000) for removing or filling 50 cubic yards in state waters, including small-scale dredging in salmon habitats. Permitting involves lengthy environmental reviews.
Impact: Delays operations and imposes mitigation costs, shrinking viable mining areas on federal lands. Approx. 22,000 stream miles are affected, predominantly on federal lands.
Fish and Wildlife Habitat Protection (ORS 517.956 and OAR 635-405)
Impediment/Financial Burden: Prohibits habitat loss for listed species, requiring buffer zones and seasonal limits. ODFW consultation adds oversight and potential operational halts. Oregon’s “Waters of Oregon” includes all surface and groundwater, broader than the federal “Waters of the United States” (WOTUS), which excludes ephemeral streams. This overreach on federal lands conflicts with EOs.
Impact: Reduces accessible land and imposes downtime, cutting efficiency for miners exercising federal rights. 22,300 miles of waterways are affected as of 2023.
Chemical Process Mining Regulations (ORS 517.952 to 517.989)
Impediment/Financial Burden: Demands consolidated permits through DOGAMI, with rigorous air, water, and land standards. Reclamation, including detoxification, inflates costs significantly.
Impact: Extends permitting timelines and raises financial barriers, particularly for critical mineral extraction like lithium or cobalt. Permitting process imposes ambiguously restrictive and costly regulations on federal lands.
Sage-Grouse Habitat Protections (OAR 635-140)
Impediment/Financial Burden: Restricts mining in eastern Oregon’s sage-grouse habitats, requiring mitigation or compensatory measures. Permits may be denied in priority areas.
Impact: Limits exploration in mineral-rich federal lands, conflicting with EO goals for critical minerals. This affects over 15 million acres in Eastern Oregon.
The Critical Role of Federal Preemption
Federal law, under the Supremacy and Property Clauses, grants miners unassailable rights to explore and extract minerals on federal lands, as codified in the General Mining Act of 1872. Oregon’s regulations, while framed as environmental protection, often overstep by imposing de facto bans or excessive burdens that nullify these rights. Federal preemption is paramount to ensure state laws do not obstruct national priorities. Key cases underscore this:
Granite Rock (1987) clarified states may regulate environmental impacts but not prohibit federally authorized mining; dissenters warned of state overreach.
Bohmker v. Oregon (2018) dissent argued suction dredge bans negate federal rights.
People v. Rinehart (2016) wrongly upheld state interference; overturning it would affirm federal primacy.
EOMA v. DEQ (2018) dissent criticized unscientific turbidity rules stifling miners.
Preemption must be enforced to void conflicting state rules, ensuring Oregon’s critical minerals fuel national energy dominance and economic security. Without it, state overreach risks paralyzing federal mining policy.
Proposed Solutions to Align Oregon with Federal Goals
To address these barriers and uphold federal law, we propose the following reforms.
Eliminate State Bans/Permits: Void suction dredge bans and duplicative permits (e.g., DOGAMI, DEQ, DSL), enforcing federal systems like BLM notices.
Define Casual Use: Clarify “casual use” under 30 U.S.C. § 22, exempting small operations from preapprovals.
Restore RS 2477 Access: Reopen roads to ensure access to unpatented claims.
End Withdrawals/Monuments: Halt mineral withdrawals and Antiquities Act abuses restricting federal lands.
Transfer Authority: Shift Forest Service mineral oversight to BLM per the 1905 Transfer Act.
Clarify Occupancy Rights: Allow claim occupancy during mining without notices/plans.
Streamline Compliance: Exempt small operations from MSHA reporting; align state water rules with WOTUS.
Call to Action
Oregon’s critical minerals are a national asset, yet state regulations stifle their development, burdening miners and defying federal mandates. Federal preemption is not just a legal principle—it’s a necessity to secure America’s resource future. We urge this administration to implement these reforms, void conflicting state laws, and restore miners’ rights on federal lands.
Sincerely,
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Footnotes:
Bohmker v. Oregon, 903 F.3d 1029: Dissent argued bans nullify federal rights.
People v. Rinehart, 1 Cal. 5th 652: Should be overturned for state interference.
Granite Rock, 480 U.S. 572: O’Connor upheld regulation, not prohibition; dissent warned of overreach.
EOMA v. DEQ: Dissent criticized unscientific turbidity standards.