Media Coverage
Source: Law360
Media Coverage
Press Contacts: Erik Cummins, Matt Hyams, Olivia Thomas
09.26.17
On September 18, a Tenth Circuit panel reversed a lower court decision, saying that excavation carried out by three developers on tribal land consisted of “mineral development” as defined in regulations by the Bureau of Indian Affairs (BIA). The ruling, which states that the excavation requires a mineral lease from the Osage Nation’s Mineral Council and a permit from the BIA, creates new requirements for and poses additional risks to infrastructure projects on tribal lands, reports Law360.
Native American Law partner Blaine Green says this interpretation portrays the BIA regulations more broadly by including common minerals such as gravel and sand with energy-producing minerals like coal, oil and gas.
“The court found the BIA regulation governing mining development was ambiguous. It could be construed differently by other courts,” Green told Law360, “but other courts are going to be likely looking to the Tenth Circuit for informing their analyses.”
If a nontribal developer anticipates that their subsurface construction could fall under this interpretation, Green said they should make sure they have any necessary consent for their mining activities, like a mineral license. He also told the publication that if developers might use excavated minerals for foundations for their wind or solar projects, they should examine their leases for the kinds of uses that are covered.
“A best practice would be to consider the possibility that nonmineral development might nonetheless come within the definition of 'mining' in federal regulations,” Green said.
Read more about the Tenth Circuit’s ruling in Law360 (subscription required).