The Riches of the Desert: Can the Bureau of Land Management Reject a Mining Operation Based on Historic and Cultural Concerns?

Shaye Diveley

Shaye Diveley is an associate with Stoel Rives, L.L.P., a combination with Washburn, Briscoe & McCarthy, where her practice includes natural resources, environmental, and land use litigation. She graduated cum laude from University of California, Hastings College of the Law, 2001, where she was a 1999-2000 Joe Rudd Scholar from the Rocky Mountain Mineral Law Foundation. Prior to law school, Ms. Diveley worked as a policy analyst for The Gold Institute.

[32 ELR 10603]

An Analysis of the Validity of the Glamis Directive

At first glance, the California Desert Conservation Area (CDCA)¹ is a 25-million-acre² expanse of sand dunes, brush lands, rock formations, and loneliness and desolation. However, a cursory look at the landscape belies the desert's significant "historical, scenic, archeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources" that the U.S. Congress recognized when it dedicated the area in 1976.³ It is this amalgamation of wonders and riches that makes the CDCA one of theworld's unique geographic and natural treasures, and an area ripe for conflict over value judgments and human development.

The range of riches in this region is practically immeasurable. For example, the desert is home to special protection areas for the endangered Coachella Valley fringe-toed lizard and the desert tortoise.⁴ Beneath the surface, the area holds archeological and historic remnants of Native American communities and early miners and pioneers.⁵ The highly mineralized CDCA is also host to approximately 124 mining operations extracting 34 different mineral commodities, including the country's only workable deposits of borax and rare earth minerals.⁶ Adding to the area's $ 1 billion annual mineral production are high-grade sodium, calcium, gypsum, clay, gold, and geothermal resources.⁷ The many visitors to the desert find it ideal for hiking, hunting, camping, and off-highway recreational vehicle driving and racing, making the CDCA one of the nation's most heavily visited recreational areas.⁸ These contrasting interests in the desert are showcased in epic battles between those looking to preserve the natural and cultural wonders of the region and those desiring to develop their potential.⁹ One such clash concerns the proposed Imperial Gold Mine near El Centro, California. This conflict has three major players—Glamis Gold, Inc., a small mining company headquartered in Reno, Nevada, which wants to develop the gold deposit at the site¹⁰; the Quechan Indian Tribe, a nearby Native American community which considers the proposed mine site a place of religious significance¹¹; and the Bureau of Land Management (BLM), the federal agency charged with administering mining claims on public lands, which wants to know if it has legal authority to deny the mining operation. Added to this mix is former U.S. Department of the Interior (DOI) Solicitor John Leshy's legal opinion,¹² known as the Glamis Directive, purportedly providing the legal authority for the BLM to deny the mining operation. Relying on the Glamis Directive, former Secretary of the DOI Bruce Babbitt denied the directive's plan of operations for the mine just days before leaving office in January 2001.¹³

In October 2001, the newly appointed Solicitor of the DOI, William G. Myers III, reversed the Glamis Directive, specifically rejecting the legal reasoning behind the denial of the Imperial Gold Mine project.¹⁴ This new opinion [32 ELR 10604] also advised the rescission and reconsideration of any decision made under the "undue impairment" provision, including the Imperial Gold Mine project.¹⁵ It is still unclear how this change will affect the company's actual operations at the site.¹⁶

Although the Glamis Directive directly affected only the proposed Imperial Gold Mine, its impact was felt throughout the country's mining industry. The opinion provided the legal groundwork for a discretionary veto power for the BLM in considering mining operations that was not apparent in the current statutory or regulatory framework. Moreover, the Glamis Directive furnished the basis for new mining regulations that were extremely injurious to the industry.¹⁷ Consequently, the Glamis Directive had far-reaching consequences that went beyond the denial of a small gold mine in the California desert.

This Dialogue will first discuss the background of the dispute, outlining the factual and legal arguments of each party. Then it will analyze whether the Glamis Directive was based on sound legal reasoning and whether the BLM had the authority to deny the mining operation. Finally, the Dialogue will conclude with a look at the impact of the dispute and the Glamis Directive on future mineral development on public lands.

Background

The BLM is charged with managing 264 million acres of public lands, including the site of the proposed Imperial Gold Mine. These public lands are commonly viewed as the "leftovers," areas not staked out for homesteads or reserved for national parks or forests.¹⁸ As the nation's landlord, the BLM administers these lands within the statutory framework of several laws, of which the most significant here are the General Mining Law of 1872¹⁹ and the Federal Land Policy and Management Act (FLPMA).²⁰ To be consistent with these laws, the BLM manages the lands to sustain their health, diversity, and productivity.

The General Mining Law of 1872 provides that "all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase."²¹ This broad law bestows on citizens the right to enter, explore, and mine public lands through the location of valid mining claims, determined by a discovery of a valuable mineral deposit.²² Accordingly, the preferred use of the public lands is mining.²³

FLPMA also contains a pro-development interest, directing the DOI to "manage the public lands under principles of multiple use and sustained yield."²⁴ However, this objective is somewhat tempered by other provisions of FLPMA, particularly those referring to the CDCA. For example, FLPMA does not "amend the [General] Mining Law of 1872 or impair the rights of any locators or claims under that Act,"²⁵ except to require the DOI to take steps necessary "to prevent unnecessary or undue degradation of the lands."²⁶ Likewise, FLPMA states that its provisions do not affect the application of the mining laws to the CDCA, except for regulations necessary "to protect the scenic, scientific, and environmental values of the public lands of the [CDCA] against undue impairment."²⁷ Accordingly, the BLM's mandate under the applicable laws is to permit the discovery and mining of valuable minerals so long as such activities do not unduly or unnecessarily degrade or impair the area.

Under the sanction of the General Mining Law of 1872, Glamis Gold Corporation and its subsidiary and joint venture partners²⁸ proposed to operate the Imperial Gold Mine on 1,571 acres of public land in the CDCA.²⁹ In 1991, Glamis submitted a plan for gold exploration on the site, located in an area zoned multiple use class L (limited use), which was approved by the BLM.³⁰ Between 1994 and 1996, the BLM reviewed and approved six additional plans for operation submitted by Glamis for continued exploration on the site, which eventually uncovered significant marketable gold deposits.³¹ In each of these reviews, the BLM concluded Glamis' activities would not create any "unnecessary or undue degradation" to the area.³² In 1994, Glamis submitted to the BLM a proposed plan of operation for a heap-leach gold mine and processing facility on the site.³³ It is this 1994 proposal, still pending until this January, that was the subject of the Glamis Directive.

[32 ELR 10605]

The proposed plan for the Imperial Gold Mine is a common modern gold operation³⁴ consisting of three open pits with neighboring facilities for processing the ore and stockpiling waste rock. The operation is a composite of 664 unpatented lode claims and 285 mill-site claims.³⁵ Glamis' proposed plan of operation also includes measures for reducing the environmental impact of the mine and for reclaiming the site once operations are completed.

Once operational, the Imperial Gold Mine would "generate more than 100 local jobs, and involve $ 48 million in initial capital expenditures. In addition, the project would entail $ 1.7 million in continuing annual capital expenditures and $ 26 million per year in non-capital expenditures including payroll."³⁶ Glamis had already spent $ 13.8 million in discovery and exploration at the time the Glamis Directive was issued.³⁷ To preserve the mining claims and mill sites during the period the company was awaiting approval of its plan of operations, Glamis had to spend $ 100,000 per year, plus at least another $ 700,000 more in annual operating costs to maintain workable conditions at the site.³⁸

The BLM conducted several environmental reviews of the project, releasing a draft environmental impact statement/environmental impact report to the public in November 1997.³⁹ After public review of this document and several hearings on the subject, the BLM requested the Advisory Council on Historic Preservation (Advisory Council) to review the potential effects of the mine on the nearby cultural or historic areas, particularly on the Quechan Indian Tribe.⁴⁰

The Quechan Indian Tribe has strong cultural and religious ties to the area of the proposed mining site. The site is part of the Indian Pass-Running Man area of traditional cultural concern, which was identified and categorized through archeological surveying and Native American consultation as part of the proposed Imperial Gold Mine.⁴¹ The Indian Pass-Running Man region is part of a larger area of sacred lands to the Quechans extending north to Blythe, east to Arizona, south past Pilot Knob, and west to include the Cargo Mucachos Mountains.⁴² The area has unique characteristics of great importance to the tribe's region and mythology, such as petroglyphs and cleared circles. There are a number of trails throughout the area that link other areas of cultural significance. The Trail of Dreams runs through the area and links the two most important sites to the Quechan culture, Spirit Mountain near Needles, California, and Pilot Knob near Yuma, Arizona. The trial is believed to be the last remaining route between the two sites, and is believed to be traveled both physically and mentally. "The trial is believed to be of critical importance to dreamers in navigating through the spiritual world."⁴³ The Quechan people believe a person can learn about his or her history and future by dreaming, thus the trail is of utmost cultural and religious importance.⁴⁴

Accordingly, the Quechan Indian Tribe asked the BLM to close the area to mineral development, including the Glamis project. The BLM researched the area's cultural significance in 1987 and determined that there was "no evidence" that the site "is used today by contemporary Native Americans."⁴⁵ However, on October 19, 1999, the Advisory Council advised the BLM "that the Glamis Imperial Project would effectively destroy the historic resources in the project area, and recommended that [the DOI] take whatever legal means available to deny approval for the project."⁴⁶ Accordingly, the BLM reconsidered its findings and decided to close off 9,360 acres of public lands "to protect sensitive and significant Native American values, cultural and archeological resources, and the visual quality of public lands" in the area.⁴⁷ This 20-year withdrawal, however, did not affect any valid existing rights, including the Glamis project.

In light of the comments from the Advisory Council and the public, the BLM requested a legal opinion from DOI Solicitor Leshy in order to analyze the BLM's mandate under FLPMA and other applicable laws in reviewing the plan of operations for the Imperial Gold Mine.⁴⁸ On December 27, 1999, Solicitor Leshy released his opinion—the Glamis Directive—which concluded that if the BLM agreed with the findings of the Advisory Council, it could deny approval of the plan of operations.⁴⁹ Secretary Babbitt approved the Glamis Directive on January 3, 2000, "binding all [DOI] employees, including all personnel in the BLM and the [DOI] Board of Land Appeals [the DOI's adjudicatory body], to follow the Glamis Directive."⁵⁰ Glamis filed suit against Secretary Babbitt and the DOI on April 14, 2000, to vacate the Glamis Directive and to enjoin the department from enforcing its legal findings.⁵¹ Nevertheless, the following [32 ELR 10606] year, on January 17, 2001, Secretary Babbitt formally denied the Imperial Gold Mine.⁵²

The Glamis Directive

Solicitor's Opinion

The Glamis Directive addressed two issues posed by Glamis' mining operation:

. What limits or obligations does the First Amendment to the U.S. Constitution place on the BLM in this context?

. To what extent does FLPMA authorize or oblige the BLM to protect the cultural and historic resources of the Area of Traditional Cultural Concern (ATCC) in connection with the Glamis proposed plan of operation?⁵³

This Dialogue will focus on the second question⁵⁴ because it has the most immediate and widespread effect for the mining industry.

In considering the legal mandate of FLPMA, the Glamis Directive looked at both the obligations of the BLM in managing all public lands and the special responsibilities the BLM holds with respect to the CDCA. The directive examined the statutory framework of FLPMA, particularly 43 U.S.C. § 1732, which established "the intent of Congress that all public activities, including those conducted under the [General] Mining Law of 1872, are subject to the unnecessary or undue degradation standard."⁵⁵ Since the mine site was in the CDCA, the directive opined that an additional mandate was imposed on the BLM to prevent "undue impairment" of the area's "scenic, scientific and environmental values."⁵⁶

The Glamis Directive noted that the use of the conjunction "or" between "unnecessary" and "undue" in § 1732 allowed the BLM to impose separate standards for two types of degradation.⁵⁷ Citing two law review articles, the directive determined that the BLM had "the authority to impose restrictive standards in particularly sensitive areas, 'even if such standards were not achievable through the use of existing technology.'"⁵⁸ According to the opinion, § 1732 imposed on the DOI "a mandatory duty to take any action necessary to prevent such degradation," through regulation or other means.⁵⁹

The Glamis Directive further recognized that the BLM had promulgated regulations for the implementation of the "unnecessary or undue degradation" standard. The regulatory definition was:

Undue degradation means surface disturbances greater than what would normally result when an activity is being accomplished by a prudent operator in usual, customary, and proficient operations of similar character and taking into consideration the effects of operations on other resources and land uses, including those resources and uses outside the area of operations. Failure to initiate and complete reasonable mitigation measures, including reclamation of disturbed areas or creation of a nuisance may constitute unnecessary or undue degradation. Failure to comply with applicable environmental protection statutes and regulations thereunder will constitute unnecessary or undue degradation. Where specific statutory authority requires the attainment of a stated level of protection or reclamation, such as in the [CDCA], that level of protection shall be met.⁶⁰

The directive concluded that this regulatory definition only defined "unnecessary degradation," in essence codifyingthe "prudent operator" standard.⁶¹ Consequently, according to the directive, the BLM had to take steps pursuant to its regulatory definition to ensure no "unnecessary" degradation, but was also required to prevent "undue" degradation as well, although what was required to achieve this standard was unclear.

The Glamis Directive next read the regulatory definition in conjunction with the objectives of the BLM in managing the public lands for mineral exploration. As a result, "the [DOI's] current regulations seek to 'provide for mineral [activities] in a manner that will not unduly hinder' them, while at the same time prevent disturbances 'greater than what would normally result' from a prudent operation."⁶² The opinion conceded that the BLM may have to adopt more stringent regulations to ensure no "undue" degradation, since it concluded that the current regulatory definition only covered "unnecessary" impacts.⁶³ Nevertheless, according to the Glamis Directive, the BLM not only must ensure compliance with the "prudent operator" standard (essentially the regulatory definition of "unnecessary degradation" according to the directive), but "must also ensure that 'reasonable and practical' mitigation is chosen that will best protect" other resources from undue degradation.⁶⁴ In other words, there was now a dual standard for the BLM to regulate mining operations on public lands, despite any regulatory definition setting forth a single standard.

[32 ELR 10607]

It is important here to note that the Glamis Directive did not contend (and correctly so) that the mandate to prevent "unnecessary or undue degradation" of the public lands permitted the BLM to prohibit mining outright.⁶⁵ The opinion recognized that Congress intended to allow some "modicum of harmful impact" because of a national need for domestic mineral supply.⁶⁶ Thus, BLM's responsibility under FLPMA was not to prevent any impact whatsoever, but to determine "how much [degradation] and of what character in [a] specific location" was permitted under the Act and, specifically, for the CDCA.⁶⁷

The Glamis Directive examined the special obligations of the BLM in managing the lands within the CDCA. Congress created the CDCA to preserve "historical, scenic, archeological, environmental, biological, cultural, scientific, educational, recreational, and economic resources."⁶⁸ Under FLPMA, the BLM must "protect the scenic, scientific, environmental values of the public lands of the [CDCA] against undue impairment."⁶⁹ The opinion first concluded that "the three values named in subsection (f)—scenic, scientific, and environmental—are fairly read to include 'archeological,' 'cultural' or 'educational' resources of the type threatened by the Glamis proposal."⁷⁰ The directive dismissed statutory construction arguments that because such characteristics were specifically mentioned in subsection (a)(1) the BLM is limited to protection of the three enumerated values in subsection (f).⁷¹

Next, the directive probed the BLM's authority under the "undue impairment" standard. The opinion noted that the BLM's regulations for CDCA management do not interpret the "undue impairment" standard.⁷² However, the preamble to the regulations noted that the BLM received several comments recommending regulations specific to the CDCA.⁷³ The BLM concluded this was unnecessary since the law already "requires the filing of a plan of operations for any activity in the [CDCA] beyond that covered by casual use." The plan would be evaluated to ensure protection against "undue impairment . . . ."⁷⁴ Consequently, "undue impairment," according to the directive, must be reviewed on a site-specific basis.⁷⁵

The directive also dismissed arguments that the "unnecessary or undue degradation" standard necessarily included "undue impairment."⁷⁶ Citing Utah v. Andrus,⁷⁷ the Glamis Directive examined whether "impairment" under § 1781(f) is distinct from "degradation" under § 1732(b).⁷⁸ The opinion concluded that the issue did not need to be decided, yet found the "BLM's mandate to protect 'scenic, scientific, and environmental values' of the land from undue impairment is distinct from and stronger than the prudent operator standard" in the regulatory definition of "unnecessary or undue degradation."⁷⁹ Consequently, the "BLM should examine each proposed plan of operation on a case by case basis and provide for such measures as may be reasonable to protect environmental and other values in the CDCA from undue impairment."⁸⁰

Finally, the Glamis Directive turned its attention to the CDCA management plan. The plan zoned the CDCA into four multiple use areas, with class L—the category of the mine site—being the second most restrictive.⁸¹ "Public lands designated as class L are managed to provide for generally lower-intensity, carefully controlled multiple use of resources, while ensuring that sensitive values are not significantly diminished."⁸² This multiple use mandate necessarily will cause conflicts, thus in class L "judgment is called for in allowing consumptive uses only to the point that sensitive natural and cultural values might be degraded."⁸³ The Glamis Directive concluded that this language implied that "protection of resources can sometimes outweigh the proposed use of the land."⁸⁴

The opinion also noted the importance the CDCA management plan placed on preservation of Native American cultural resources. "In working within the plan to meet that goal, BLM must also give full considerations to the Quechan's religious, cultural and educational values in the area, and must consider how important and unique the resources are that might be destroyed by the Glamis proposal."⁸⁵

Then, the Glamis Directive looked at the obligation of the BLM to develop "mitigation measures where resources cannot be protected."⁸⁶ The opinion concluded that although the plan noted that mitigation measures would be required where technically and economically feasible, this does not affect the BLM's decisionmaking process in terms of approving or disproving a plan of operations.⁸⁷ Moreover, according to the directive's reading of the plan, mitigation measures are only required in classes M and I.⁸⁸ As a result, "in Class L areas protection may at times be paramount and a proposed project can be rejected because it unduly impairs [32 ELR 10608] resources."⁸⁹ The Glamis Directive concluded that the "undue impairment" standard did not permit the BLM to prohibit all mining within the CDCA, but did allow it to impose mitigation measures and, where necessary to prevent undue harm to cultural, historic, or other resources, deny a plan of operation if "no reasonable measures are available to mitigate that harm."⁹⁰

In conclusion, the Glamis Directive determined that whether the BLM could deny the Imperial Gold Mine was up to the specific facts of the case, particularly the Advisory Council's conclusion that no mitigation measure would prevent significant harm to the area's cultural values. The opinion stated that the BLM had to protect the area from undue impairment, taking into account the Executive Order, FLPMA's "unnecessary or undue degradation" standard, and the Advisory Council's findings.⁹¹ In the end, the directive reasoned, "if the BLM agrees with the Advisory Council, it has . . . the authority to deny approval of the plan of operations."⁹²

Legal Shortcomings of the Glamis Directive

Although the Glamis Directive has been subsequently rescinded by Solicitor Meyers' recent opinion, its legal shortcomings and the BLM's ignorance of the company's position present a valuable case study for looking at the impacts of poorly based administrative decisions. The Glamis Directive relied on faulty legal reasoning and ignored administrative precedent, thus BLM had no foundation to deny the Imperial Gold Mine for historical and cultural concerns based on the legal opinion. The Glamis Directive rested on improper interpretations of the BLM's authority under the "unnecessary or undue degradation" standard of FLPMA and ignored the controlling definition of those terms. The directive also misapplied the special requirements of FLPMA in managing the CDCA, giving the BLM a discretionary veto power for cultural and historic preservation not intended by the statute. Finally, even if the Glamis Directive was consistent with FLPMA and the General Mining Law of 1872, the BLM was estopped from blocking the mine because of procedural shortcomings in the BLM's determination.

The "Unnecessary or Undue Degradation" Standard

The Glamis Directive improperly circumvented the controlling definition of the "unnecessary or undue degradation" standard. The regulatory definition of "unnecessary or undue degradation" did not give the BLM discretion to deny a mining operation based on historic or cultural concerns, yet the Glamis Directive ignored this definition to impose a dual standard for plans of operation.

It is evident that the regulatory framework at the time of the Glamis Directive did not give the BLM the authority to deny the operation under the "unnecessary or undue degradation" standard because the BLM quickly promulgated new regulations to encompass the opinion's novel approach.⁹³ The new regulation redefined "unnecessary or undue degradation" to include "substantial irreparable harm to significant scientific, cultural or environmental resource values of the public lands that cannot be effectively mitigated."⁹⁴ This new standard essentially codified the Glamis Directive, implying that while there may be a legal foundation for the new regulation, the opinion's interpretation of the "unnecessary or undue" standard was not based on current law at the time and improperly ignored the controlling regulations.

The BLM's Discretionary Veto Power

The Glamis Directive gave too much discretion to the BLM to deny mining operations within the CDCA. The directive rested on an interpretation of the BLM's statutory responsibility for management of the CDCA that was contradictory to the explicit text of the law. Under 43 U.S.C. § 1781(f), the BLM was limited to protect "scenic, scientific and environmental values" from undue impairment.⁹⁵ These were 3 of 10 enumerated values in § 1781(a)(1), including "archeological," "cultural," and "educational."⁹⁶ The directive concluded that "scientific" necessarily included these other values, noting "it would defy common sense to construe 'scientific' values as excluding 'cultural,' 'historical' and 'archeological' resources."⁹⁷ Yet, the Glamis Directive ignored that Congress must have considered these values differently or it would not have separately listed them in § 1781(a)(1). The directive's conclusion inexplicably dismissed principles of statutory construction and the intent of Congress to limit the BLM's discretionary power.

The Glamis Directive also misinterpreted the multiple use mandate of class L public lands within the CDCA. The CDCA management plan stated that within class L

location of mining claims is nondiscretionary [and] operation on mining claims are subject to the 43 C.F.R. [§] 3809 regulations . . . . [The] BLM will review plans of operation for potential impacts on sensitive resources identified on lands in this class. Mitigation, subject to technical and economic feasibility, will be required.⁹⁸

This language stated that while mining operations within the CDCA were subject to the "unnecessary or undue degradation" standard and the prevention of "undue impairment," the process of preventing such impacts was through mitigation measures, not outright denial of the mine. The Glamis Directive focused on one part of the plan to imply that mitigation was not necessary for class L lands and that rejection of mining operations was a proper mechanism to protect cultural resources.⁹⁹ This inference improperly overlooked the multiple use mandate of the plan and the class L designation.

Regulatory Consistency

Third and most important, even if the Glamis Directive properly interpreted the law, it could not change the standards for mining on the public lands, particularly the [32 ELR 10609] CDCA, through a legal opinion. Since the inception of the CDCA, 14 plans of operation for 9 different mines have been approved by the BLM under the "unnecessary or undue degradation" standard.¹⁰⁰ The Glamis Directive, through the non-public process of issuing a legal opinion, created a new "unnecessary or undue degradation" standard, imposed a never-before-used standard of "undue impairment" for mining in the CDCA and granted the BLM a brand-new discretionary veto power to reject valid mining operations in the face of cultural or historic concerns. Even if these new standards arguably had valid legal foundation, they should not have been implemented "mid-stream" on the Imperial Gold Mine or without proper administrative procedures on the industry in general.

Albeit, the BLM was not statutorily obligated under the Administrative Procedure Act to promulgate regulations through rulemaking.¹⁰¹ However, since the BLM had participated in rulemaking in the past, it was compelled to be consistent in its actions and to avoid detrimental reliance even if it was not obligated originally to proceed in such a manner.¹⁰²

Consistency in the law is important for several reasons. It contributes to the societal sense of security and legitimacy of the law. People rely on rules when determining their behavior—a sudden change in the law destroys that reliance interest. Moreover, changing one rule may unwittingly "unhinge other rules built upon it."¹⁰³ Recognizing this importance, courts have imposed a consistency requirement on administrative functions where an agency has changed rules or precedent without acknowledging a change has occurred or justifying its inconsistent actions.¹⁰⁴ This does not mean that an administrative body is forever bound to precedent. Instead, the consistency requirement compels, at the least, notice and justification of the change and, in cases of reliance, assurance that no due process problem arises with retroactive application.¹⁰⁵

The Glamis Directive imposed two new standards for mining in the CDCA that should have been implemented prior to the Imperial Gold Mine proposal to be effective. The directive superseded existing regulatory definitions to impose a new "undue degradation" criterion for the project. In addition, it applied an "undue impairment" standard that had not been used in any of the previously approved plans of operations for the CDCA. These actions were clearly inconsistent with past BLM activities, particularly the promulgation of regulations for the definition of "unnecessary or undue degradation," and deprived Glamis of notice of the change and its ability to conform to the new standards. Accordingly, the legal interpretations of the Glamis Directive, unsupported by past BLM rulemaking or precedent, should not have been applicable to the Imperial Gold Mine.

The BLM may have also been estopped from imposing new standards on Glamis based on detrimental reliance. Although the courts have been reluctant to allow estoppel claims against the federal government,¹⁰⁶ Prof. Joshua L. Schwartz suggests the door is still open for estoppel remedies against administrative agencies under the guise of other doctrines, specifically the consistency requirement.¹⁰⁷ In particular, "estoppel relief may be warranted in situations in which agency misconduct produces justifiable detrimental reliance, and would, absent such relief, result in serious injury to a protected liberty or property interest that outweights the government's interest in enforcement of the particular law."¹⁰⁸

The BLM several times told Glamis it met the "unnecessary or undue degradation" standard.¹⁰⁹ While a change in this conclusion may not amount to agency misconduct, it was certainly reasonable for Glamis to rely on these previous determinations in preparing its submission of the plan of operations for the Imperial Gold Mine. In changing the legal standards for analyzing whether the operation should be approved, the BLM destroyed this reliance interest and deprived Glamis of its recognized property interest in its mining claims. This result might not have been as harsh if the BLM had not changed its legal stance in terms of protection of cultural resources mid-stream during the approval process. Accordingly, the BLM should have been estopped from applying the new standards on the Imperial Gold Mine and destroying the company's valid property interests in the operation of the mine.

Conclusion

Starting in 1994, Secretary Babbitt declared war on the General Mining Law of 1872.¹¹⁰ Frustrated with failed attempts to legislatively reform the law, Secretary Babbitt turned his attention to administrative means of bringing this "lord of yesteryear"¹¹¹ to the 20th century if not the 21st century. The Glamis Directive was reflective of this effort to administratively reform mining law. In denying the Imperial Gold Mine, the BLM had instituted a new era of mining regulation on the public lands. Before this decision, the authority of the BLM to regulate mining activity was viewed as limited, especially in light of the long-standing precedent of mining as the highest and preferred use of the land. Under the Glamis Directive, the BLM now had authority to deny the operation of valid mining claims for historical or cultural reasons even if such activities did not cause "undue or unnecessary [32 ELR 10610] degradation" under the regulatory definition. The old statutory and regulatory standards inexplicably no longer controlled.

While Secretary Babbitt's goals of reform may have had some merit—even most industry actors support some type of mining law reform—switching horses in mid-stream was not the answer. Glamis spent years exploring and developing its claims, working with the nearby communities and the BLM to devise a plan of operations that would mitigate potential impacts on the environment and cultural concerns. The Glamis Directive and Secretary Babbitt's ultimate decision to deny the mine deprived the company not only of considerable time, energy, and money, but also the industry's ability to foresee the regulatory framework for mining on the public lands.

Even if the BLM's ultimate decision to deny the mine was a virtuous one in light of the Quechan Indian Tribe's cultural interests in the area, one must question the process and time frame used by the BLM to reach this outcome. In 1987, the BLM determined there was no contemporary Native American use of the area. In 1991, Glamis began exploration of the area with the BLM's approval. It is not clear whether the BLM was aware of the Quechan Indian Tribe's concerns about mining in the area at the time of Glamis' initial exploration, but these interests were likely on the radar screen given the 1987 determination. The BLM essentially flipped-flopped between the two interests—cultural and mineral—for 14 years. Much time and money might have been saved if the BLM had made a determination that the area had cultural or historic significance in 1987, before Glamis began its operations on the site.

Finally, this dispute was heightened due to the special concerns of the CDCA. From its inception, the goals of the area were wrought with conflict. In creating the area, Congress at once recognized the need to preserve its environmental, historical, and cultural characteristics, as well as to utilize its great recreational, development, and economic potential. With the Glamis Directive, the debate over which riches of the desert to preserve or to exploit ended in a hierarchy of uses not readily apparent in the statutory text. Practically speaking, conservation may well be the best use of the land; yet it is difficult to ignore the long history of mining in the area and the statutory mandate to permit such activity. As a result, despite the shroud of FLPMA's multiple use mandate, the CDCA may well be a protected area where multiple use means multiple non-use.

1. The U.S. Congress dedicated the CDCA as part of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1781, ELR STAT. FLPMA § 601.

2. BUREAU OF LAND MANAGEMENT (BLM), U.S. DEPARTMENT OF THE INTERIOR (U.S. DOI), THE CALIFORNIA DESERT CONSERVATION AREA PLAN 5 (1999 reprint) [hereinafter CDCA PLAN].

3. 43 U.S.C. § 1781(a)(1), ELR STAT. ADMIN. § 601(a)(1).

4. See BLM, CDCA PROTECTION, available at www.ca.blm.gov/cdd/cdca_protection.html (last visited Mar. 20, 2002).

5. See id.

6. See BLM, CDCA DEVELOPMENT, available at www.ca.blm.gov/cdd/cdca_development.html (last visited Mar. 20, 2002). In fact, 97% of the country's reserves in rare earth minerals are in the CDCA. National security concerns in accessing these minerals were of significance in the congressional debate over the California Desert Protection Act of 1993. See California Desert Protection Act of 1993: Hearings on S. 21 Before the Subcomm. on Public Lands, National Parks, and Forests, Senate Comm. on Energy and Natural Resources, 103d Cong. 122-23 (1993) (statement of Rep. Jerry Lewis).

7. See BLM, CDCA DEVELOPMENT, supra note 6.

8. See BLM, CDCA RECREATION, available at www.ca.blm.gov/cdd/cdca_recreation.html (last visited Mar. 20, 2002).

9. The CDCA management plan itself recognized the conflict in its multiple use mandate. See CDCA PLAN, supra note 2, at 21.

10. See Plaintiff's Complaint for Declaratory and Injunctive Relief at 3, Glamis Imperial Corp. v. Babbitt, No. CV-N-00-196-DWH(VPC) (D. Nev. Apr. 14, 2000) [hereinafter Plaintiff's Complaint].

11. See Press Release, BLM, BLM Receives Important Legal Opinion Involving Proposed Glamis Imperial Mine in California Desert (Jan. 14, 2000) (on file with the author).

12. See OFFICE OF SOLICITOR, U.S. DOI, REGULATION OF HARDROCK MINING (1999) [hereinafter GLAMIS DIRECTIVE].

13. See BLM, U.S. DOI, RECORD OF DECISION FOR THE IMPERIAL GOLD MINE PROJECT PROPOSAL (2001) [hereinafter IMPERIAL GOLD MINE PROJECT PROPOSAL].

14. See OFFICE OF SOLICITOR, U.S. DOI, SURFACE MANAGEMENT PROVISIONS FOR HARDROCK MINING (2001) [hereinafter 2001 SOLICITOR'S OPINION]. While this new opinion touched on many of the same points as this Dialogue, its main focus was the invalidity of the mining regulations that followed the decision on the Glamis project. This Dialogue primarily concerns the legal shortcomings of the Glamis Directive as they affect the company, although the wider impacts on the industry are acknowledged as well.

15. See id. at 20.

16. See Press Release, Glamis Gold Ltd., Imperial Gold Project Denial to Be Vacated by Department of the Interior (Oct. 25, 2001) (on file with the author).

17. See Mining Claims Under the General Mining Laws, 64 Fed. Reg. 6422-68 (Mar. 1, 1999); see also Thomas F. Darin, The Bureau of Land Management's Proposed Surface Management Regulations for Locatable Mineral Operations: Preventing or Allowing Degradation of the Public Lands?, 35 LAND & WATER L. REV. 309 (2000); Oversight Hearings on the Effect of Federal Mining Fees and Mining Policy Changes on State and Local Revenue and the Mining Industry Before the House Subcomm. on Energy and Mineral Resources, House Comm. on Resources, 107th Cong. 3 (2001) (statement of Charles A. Jeannes, Senior Vice President, Administration and General Counsel, Glamis Gold Ltd.) [hereinafter Oversight Hearings]. Like Solicitor Myers' recent reversal of the Glamis Directive, these regulations have been significantly curtailed by the DOI's announcement that it was rescinding many of the regulations promulgated by the Clinton Administration. In particular, the Bush Administration reversed a Clinton-era rule that gave the BLM a veto power modeled on the authority recognized by the Glamis Directive. See Mining Claims Under the General Mining Laws, 66 Fed. Reg. 54833-62 (Oct. 30, 2001) (to be codified at 43 C.F.R. § 3800). As is noted in this Dialogue, that veto power was highly suspect and legally questionable.

18. CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 119 (1992).

19. 30 U.S.C. §§ 21-42.

20. 43 U.S.C. §§ 1701-1785, ELR STAT. FLPMA §§ 102-603.

21. 30 U.S.C. § 22.

22. See id. § 23.

23. See WILKINSON, supra note 18, at 33.

24. 43 U.S.C. § 1732(a), ELR STAT. FLPMA § 302(a).

25. Id. § 1732(b), ELR STAT. FLPMA § 302(b).

26. Id.

27. Id. § 1781(f), ELR STAT. FLPMA § 601(f). In addition to this provision, mining within the CDCA is subject to more scrutiny than on the public lands in general. All CDCA mining activity requires BLM approval of a plan of operations, regardless of size. 43 C.F.R. § 3801.1-4(b)(1).

28. Collectively referred hereinafter as "Glamis."

29. See IMPERIAL GOLD MINE PROJECT PROPOSAL, supra note 13, at 16.

30. See Plaintiff's Complaint, supra note 10, at 11.

31. See id.

32. See id.

33. See id.

34. The Imperial Gold Mine would be a cyanide heap leaching operation. This process entails depositing large quantities of crushed rock on a heap pad and spraying it with a cyanide solution. The chemical makeup of cyanide binds it with the gold particles, thus separating the gold from the waste rock. The cyanide-gold solution is then collected and transferred to a processing plant where the cyanide is separated from the gold and reused. See generally DENVER MINERALS ENGINEERS, THE BASIC PROCESSES OF GOLD RECOVERY, available at http://www.denvermineral.com/basicprocess.html (last visited Oct. 31, 2000); TIMOTHY GREEN, THE WORLD OF GOLD 58-60 (1993).

35. See Glamis Gold Ltd., Properties: Imperial Project, at http://www.glamis.com/properties/index.html (last visited Mar. 20, 2002).

36. Plaintiff's Complaint, supra note 10, at 12 (citing BLM's 1997 draft environmental impact statement).

37. See id. at 16.

38. See id. at 17.

39. See id. at 12.

40. See id.

41. BLM, U.S. DOI, DECISION RECORD FOR THE INDIAN PASS WITHDRAWAL, IMPERIAL COUNTY, CALIFORNIA 5 (2000) [hereinafter INDIAN PASS WITHDRAWAL].

42. See Plaintiff's Complaint, supra note 10, at 13-14.

43. INDIAN PASS WITHDRAWAL, supra note 41.

44. See id.

45. BLM, U.S. DOI, INDIAN PASS ACEC MANAGEMENT PLAN § 111 (1987).

46. Letter from the Advisory Council on Historic Preservation, to Bruce Babbitt, Secretary of the DOI (Oct. 19, 1999) (on file with the author).

47. INDIAN PASS WITHDRAWAL, supra note 41, at 1; see also Withdrawal of Public Land for the Indian Pass Area, California, 65 Fed. Reg. 64456 (Oct. 27, 2000).

48. See Plaintiff's Complaint, supra note 10, at 14.

49. See GLAMIS DIRECTIVE, supra note 12, at 19.

50. Plaintiff's Complaint, supra note 10, at 14.

51. See id. at 19. In addition to challenging the legal basis for the Glamis Directive, Glamis' suit also disputes the factual findings of the Advisory Council and the BLM in terms of the Quechan Indian Tribe's use of the area. This purpose of this Dialogue does not concern these contentions.

52. See IMPERIAL GOLD MINE PROJECT PROPOSAL, supra note 13. Interestingly, the environmental effects of the mine appear to be benign, as there is no mention of this factor in any of the decisions concerning the case. The decision to deny the operation of the mine is based solely on cultural or historic factors.

53. GLAMIS DIRECTIVE, supra note 12, at 3.

54. The First Amendment issue concerns whether the BLM has special responsibilities under the Constitution with respect to the Quechan Indian Tribe's religious traditions. Under Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 18 ELR 21043 (1988) the BLM is not constitutionally obligated to reject Glamis' operation based on the Quechan Indian Tribe's religious practices in the area. However, according to the Glamis Directive, Executive Order No. 13007 on Sacred Sites "directs BLM to a policy choice in favor of preserving the physical integrity of the sites unless such a choice is impracticable, forbidden by law, or clearly inconsistent with essential agency functions." GLAMIS DIRECTIVE, supra note 12, at 6. Accordingly, while the Constitution does not bar the BLM from allowing mining in the area, the Executive Order requires the BLM to consider historical, cultural, or religious impacts of the mining operation. See id. at 6, 18.

55. GLAMIS DIRECTIVE, supra note 12, at 4.

56. Id. (citing 43 U.S.C. § 1781(f), ELR STAT. FLPMA § 601(f)).

57. See id. at 7.

58. Id. (quoting Michael Graf, Application of Takings Law to the Regulation of Unpatented Mining Claims, 24 ECOLOGY L.Q. 57, 108 (1997) and citing John Mansfield, On the Cusp of Property Rights: Lessons From Public Land Law, 18 ECOLOGY L.Q. 43, 83 (1991)).

59. Id. (citing 43 U.S.C. § 1732(b), ELR STAT. FLPMA § 302(b)).

60. 43 C.F.R. § 3809.0-5(k).

61. See GLAMIS DIRECTIVE, supra note 12, at 8.

62. Id. (quoting 43 C.F.R. § 3809.0-2).

63. See id. at 9.

64. Id. (quoting 45 Fed. Reg. 78902, 78905 (Nov. 26, 1980) (stating the preamble to the BLM's regulations)).

65. See id.; see also JOHN D. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION 201 (1987).

66. GLAMIS DIRECTIVE, supra note 12, at 9-10 (citing 43 U.S.C. § 1701(12), ELR STAT. FLPMA § 102(12) and Sierra Club v. Clark, 774 F.2d 1406, 1410, 16 ELR 20409, 20411 (9th Cir. 1985)).

67. Id. at 10.

68. 43 U.S.C. § 1781(a)(1), ELR STAT. FLPMA § 601(a)(1).

69. Id. § 1781(f), ELR STAT. FLPMA § 601(f).

70. GLAMIS DIRECTIVE, supra note 12, at 10.

71. Id. at 10-11 (expressly disapproving dicta in Cal. Portland Cement Corp., 83 I.L.B.A. 11 (1984)).

72. Id. at 11 (examining 43 C.F.R. § 3809.0-5(k)).

73. See 45 Fed. Reg. at 78902, 78909.

74. Id.

75. See GLAMIS DIRECTIVE, supra note 12, at 11.

76. See id. at 12.

77. 486 F. Supp. 995, 1004 n.14, 10 ELR 20570, 20574 n.14 (D. Utah 1979) (finding use of "impairment" in FLPMA's wilderness review provisions means something different than "degradation" under 43 U.S.C. § 1732, ELR STAT. FLPMA § 302).

78. See GLAMIS DIRECTIVE,supra note 12, at 13.

79. Id.

80. Id.

81. Id. at 14 (citing CDCA PLAN, supra note 2, at 13).

82. CDCA PLAN, supra note 2, at 13.

83. Id. at 21.

84. GLAMIS DIRECTIVE, supra note 12, at 15.

85. Id. at 16.

86. Id.

87. See id.

88. See id. at 16-17 (citing CDCA PLAN, supra note 2, at 24). The plan states here that "mitigation will be employed primarily in classes M and I where resource protection cannot override the multiple-use class guidelines." CDCA PLAN, supra note 2, at 24. The Glamis Directive contended that this language implies that class L allows protection of these other resources. See GLAMIS DIRECTIVE, supra note 12, at 17. This interpretation ignores language elsewhere in the plan that requires mitigation measures for classes L, M, and I. See infra note 95 and accompanying text.

89. GLAMIS DIRECTIVE, supra note 12, at 17.

90. Id. at 17-18.

91. See id. at 18.

92. Id. at 19.

93. See 43 C.F.R. § 3809.415.

94. Id.

95. 43 U.S.C. § 1781(f), ELR STAT. FLPMA § 601(f).

96. See id. § 1781(a)(1), ELR STAT. FLPMA § 601(a)(1).

97. GLAMIS DIRECTIVE, supra note 12, at 10.

98. CDCA PLAN, supra note 2, at 18.

99. See supra note 85 and accompanying text.

100. See Oversight Hearings, supra note 17, at 4 (statement of Charles A. Jeannes).

101. 5 U.S.C. § 553(a)(2), available in ELR STAT. ADMIN. PROC.

102. PETER L. STRAUSS ET AL., GELLHORN & BYSE'S ADMINISTRATIVE LAW 657 (9th ed. 1995) (citing United States v. Nixon, 418 U.S. 683 (1974) (holding that since the U.S. Attorney General gave the special prosecutor the power to contest executive privilege, the executive branch is now bound by that procedure)).

103. William N. Eskridge Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 110 (1988).

104. See, e.g., Shaw's Supermarkets, Inc. v. National Labor Relations Bd., 884 F.2d 34 (1st Cir. 1989) (finding the National Labor Relation Board's (NLRB's) conclusion that an employer engaged in "threat of reprisal" speech was inconsistent with past precedent and, thus, unenforceable given the inability of those subject to the NLRB's authority to guide conduct).

105. See STRAUSS ET AL., supra note 102.

106. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414 (1990) (rejecting estoppel claim for monetary relief based on erroneous information given by a government employee).

107. Joshua L. Schwartz, The Irresistible Force Meets the Immovable Object: Estoppel Remedies for an Agency's Violation of Its Own Regulations or Other Misconduct, 44 ADMIN. L. REV. 653, 718 (1992).

108. Id.

109. See Plaintiff's Complaint, supra note 10, at 11.

110. See generally Sam Kalen, An 1872 Mining Law for the New Millennium, 71 U. COLO. L. REV. 343 (2000).

111. WILKINSON, supra note 18.