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H.R. 1937, ‘‘NATIONAL STRATEGIC 

AND CRITICAL MINERALS PRODUCTION ACT OF 2015’’ 

LEGISLATIVE HEARING 

BEFORE THE

SUBCOMMITTEE ON ENERGY AND 

MINERAL RESOURCES 

OF THE

COMMITTEE ON NATURAL RESOURCES 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

Thursday, June 25, 2015 

Serial No. 114–14 

Printed for the use of the Committee on Natural Resources 

( 

Available via the World Wide Web: http://www.fdsys.gov 

or 

Committee address: http://naturalresources.house.gov 

(II) 

COMMITTEE ON NATURAL RESOURCES 

ROB BISHOP, UT, Chairman 

RAU ́ L M. GRIJALVA, AZ, Ranking Democratic Member 

Don Young, AK 

Louie Gohmert, TX 

Doug Lamborn, CO 

Robert J. Wittman, VA 

John Fleming, LA 

Tom McClintock, CA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Doug LaMalfa, CA 

Jeff Denham, CA 

Paul Cook, CA 

Bruce Westerman, AR 

Garret Graves, LA 

Dan Newhouse, WA 

Ryan K. Zinke, MT 

Jody B. Hice, GA 

Aumua Amata Coleman Radewagen, AS 

Thomas MacArthur, NJ 

Alexander X. Mooney, WV 

Cresent Hardy, NV 

Vacancy 

Grace F. Napolitano, CA 

Madeleine Z. Bordallo, GU 

Jim Costa, CA 

Gregorio Kilili Camacho Sablan, CNMI 

Niki Tsongas, MA 

Pedro R. Pierluisi, PR 

Jared Huffman, CA 

Raul Ruiz, CA 

Alan S. Lowenthal, CA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Norma J. Torres, CA 

Debbie Dingell, MI 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Vacancy 

Jason Knox, Chief of Staff 

Lisa Pittman, Chief Counsel 

David Watkins, Democratic Staff Director 

Sarah Parker, Democratic Deputy Chief Counsel 

SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES 

DOUG LAMBORN, CO, Chairman 

ALAN S. LOWENTHAL, CA, Ranking Democratic Member 

Louie Gohmert, TX 

Robert J. Wittman, VA 

John Fleming, LA 

Glenn Thompson, PA 

Cynthia M. Lummis, WY 

Dan Benishek, MI 

Jeff Duncan, SC 

Paul A. Gosar, AZ 

Rau ́l R. Labrador, ID 

Paul Cook, CA 

Garret Graves, LA 

Ryan K. Zinke, MT 

Jody B. Hice, GA 

Alexander X. Mooney, WV 

Cresent Hardy, NV 

Rob Bishop, UT, ex officio 

Jim Costa, CA 

Niki Tsongas, MA 

Matt Cartwright, PA 

Donald S. Beyer, Jr., VA 

Ruben Gallego, AZ 

Lois Capps, CA 

Jared Polis, CO 

Vacancy 

Vacancy 

Vacancy 

Vacancy 

Vacancy 

Vacancy 

Rau ́l M. Grijalva, AZ, ex officio 

(III) 

CONTENTS 

Page 

Hearing held on Thursday, June 25, 2015 ............................................................ 1 

Statement of Members: 

Lamborn, Hon. Doug, a Representative in Congress from the State of 

Colorado ......................................................................................................... 1 

Prepared statement of ............................................................................... 3 

Lowenthal, Hon. Alan S., a Representative in Congress from the State 

of California ................................................................................................... 4 

Prepared statement of ............................................................................... 6 

Statement of Witnesses: 

Amodei, Hon. Mark E., a Representative in Congress from the State 

of Nevada ....................................................................................................... 7 

Fellows, Mark, SNL Metals & Mining, Metals Consulting, on Behalf 

of the National Mining Association, London, United Kingdom ................ 9 

Prepared statement of ............................................................................... 11 

Green, Jeffery A., President, J.A. Green & Company, Washington, DC ..... 24 

Prepared statement of ............................................................................... 25 

Kalen, Sam, Winston S. Howard Distinguished Professor of Law, CoDirector, Center for Law and Energy Resources in the Rockies, 

University of Wyoming College of Law, Laramie, Wyoming ..................... 19 

Prepared statement of ............................................................................... 20 

Russell, Luke, Vice President, External Affairs, Hecla Mining Company, 

Coeur d’Alene, Idaho ..................................................................................... 12 

Prepared statement of ............................................................................... 13 

Additional Materials Submitted for the Record: 

List of documents submitted for the record retained in the Committee’s 

official files .................................................................................................... 36 

(1) 

LEGISLATIVE HEARING ON H.R. 1937, TO 

REQUIRE THE SECRETARY OF THE 

INTERIOR AND THE SECRETARY OF AGRICULTURE TO MORE EFFICIENTLY DEVELOP 

DOMESTIC SOURCES OF THE MINERALS 

AND MINERAL MATERIALS OF STRATEGIC 

AND CRITICAL IMPORTANCE TO UNITED 

STATES ECONOMIC AND NATIONAL SECURITY AND MANUFACTURING COMPETITIVENESS, ‘‘NATIONAL STRATEGIC AND CRITICAL MINERALS PRODUCTION ACT OF 2015’’ 

Thursday, June 25, 2015 

U.S. House of Representatives 

Subcommittee on Energy and Mineral Resources 

Committee on Natural Resources 

Washington, DC 

The subcommittee met, pursuant to notice, at 11:09 a.m., in room 

1334, Longworth House Office Building, Hon. Doug Lamborn 

[Chairman of the Subcommittee] presiding. 

Present: Representatives Lamborn, Labrador, Cook, Zinke, 

Hardy; and Lowenthal. 

Mr. LAMBORN. The Subcommittee on Energy and Mineral 

Resources will come to order. We are meeting today to hear testimony on H.R. 1937, introduced by Representative Amodei, the 

‘‘National Strategic and Critical Minerals Production Act of 2015.’’ 

Under Committee Rule 4(f), any oral opening statements at hearings are limited to the Chairman and Ranking Member and the 

Vice Chairman and a designee of the Ranking Member. This will 

allow us to hear from our witnesses sooner, and help Members 

keep to their schedules. Therefore, I ask unanimous consent that 

all other Members’ opening statements be made part of the hearing 

record if they are submitted to the Subcommittee clerk by 5:00 p.m. 

today. 

[No response.] 

Mr. LAMBORN. Hearing no objection, so ordered. I now recognize 

myself for my opening statement. 

STATEMENT OF THE HON. DOUG LAMBORN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO 

Mr. LAMBORN. Today the subcommittee is meeting to discuss 

H.R. 1937, the National Strategic and Critical Minerals Production 

Act of 2015, that was introduced on Wednesday, April 22, by 

Congressman Mark Amodei, and 37 original co-sponsors. The bill 

currently has 45 co-sponsors, including myself. 

2 

The legislation requires the Secretary of the Interior and the 

Secretary of Agriculture to more efficiently develop domestic 

sources of the minerals and mineral materials of strategic and critical importance to the United States’ economic and national security and manufacturing competitiveness. 

Earlier versions of this bill passed the House in both the 112th 

and 113th Congresses by wide margins. H.R. 4402 passed on July 

12, 2012 by a bipartisan vote of 256 yeas to 160 nays, and 

H.R. 761 passed on September 18, 2013, with bipartisan support 

of 246 to 178, and as part of H.R. 4, the ‘‘Jobs for America Act,’’ 

on September 18, 2014, with bipartisan support of 253 to 163. 

The legislation addresses a significant problem hindering domestic production of solid mineral resources, which is the prolonged 

permitting timelines of 7 to 10 years to obtain the necessary permits to build a mine. In some cases that we will hear about today, 

the time required to obtain a permit can be almost 20 years. In 

comparison, mine projects in Canada and Australia can obtain the 

necessary permits in 2 to 3 years. 

Critics of the legislation have raised concerns about the broad 

definition of ‘‘strategic and critical minerals’’ in the bill. The definition was written broadly to capture the diversity of the Nation’s 

mineral endowment. This includes rare earth minerals that were 

featured in a 60 Minutes special in March of this year. 

Last year, at an oversight hearing on supply and demand of critical minerals, the Minority witness, Dr. Eric Peterson, with the 

Center for Advanced Energy Studies at the Idaho National Laboratory, was asked whether lead was a critical mineral. He replied, 

‘‘Criticality is in the eye of the beholder . . . If it is needed for your 

process, then yes, it is critical.’’ 

Now let’s take a look at copper, a mineral commodity the United 

States produces and has significant reserves and resources of, yet 

we still import 31 percent of what our society needs. It is also a 

mineral that is crucial for renewable energy and alternative fueled 

vehicles. 

[Slide] 

Mr. LAMBORN. And if you take a look at Slide 1, you will see the 

information behind saying that. You can see from this slide that a 

hybrid vehicle requires twice as much copper as a vehicle that runs 

on gasoline. At 165 pounds of copper per vehicle, the electric car 

requires almost three times as much. 

[Slide] 

Mr. LAMBORN. Demand for copper is projected to outstrip supply 

sometime after 2017 with a deficit increasing to 10 million tons by 

2028. And you can see that on Slide 2. 

[Slide] 

Mr. LAMBORN. The third slide illustrates the problem we are 

here to discuss today: long permitting timelines. Currently, the average timeline from discovery to production is 20 years for large 

copper deposits. Worldwide, there are not enough large copper 

prospects in the pipeline to address the supply shortfall that is projected for the near future. 

One might ask how long permitting timelines affect the economics of a given deposit and a company’s ability to maximize the 

quantity of the resource they are able to recover. 

3 

A study commissioned by the National Mining Association 

released this morning found that a typical mining project in the 

United States loses more than one-third of its value as a result of 

the delays in obtaining the various permits required for mine construction and production. The cost and increased risk associated 

with these delays can cut the expected value of a mine in half and, 

in some cases, make the project uneconomic. This drives investors 

to fund overseas projects, even in places like the Democratic 

Republic of Congo—as you know, a very unstable country. 

Mr. Amodei’s legislation goes a long way to address this problem, 

and is a first step in addressing the Nation’s troublesome dependence on foreign sources of mineral resources. 

I want to thank the witnesses for being here, and look forward 

to hearing from them today. 

[The prepared statement of Mr. Lamborn follows:] 

PREPARED STATEMENT OF THE HON. DOUG LAMBORN, CHAIRMAN, SUBCOMMITTEE ON

ENERGY AND MINERAL RESOURCES

Today, the subcommittee is meeting to discuss H.R. 1937, the ‘‘National Strategic 

and Critical Minerals Production Act of 2015’’ that was introduced on Wednesday, 

April 22, 2015, by Congressman Mark Amodei and 37 original co-sponsors. The bill 

currently has 45 co-sponsors, including myself. 

The legislation requires the Secretary of the Interior and the Secretary of 

Agriculture to more efficiently develop domestic sources of the minerals and mineral 

materials of strategic and critical importance to United States’ economic and national security, and manufacturing competitiveness. 

Earlier versions of this bill passed the House in both the 112th and 113th 

Congresses by wide margins. H.R. 4402 passed on July 12, 2012 by a bi-partisan 

vote of 256 yeas to 160 nays and H.R. 761, passed on September 18, 2013 with bipartisan support by 246–178, and as part of H.R. 4 the ‘‘Jobs for America Act’’ on 

September 18, 2014 with bipartisan support of 253–163. 

The legislation addresses a significant problem hindering domestic production of 

solid mineral resources, which is the prolonged permitting timelines of 7 to 10 years 

to obtain the necessary permits to build a mine. In some cases—that we will hear 

about today—the time required to obtain a permit can be almost 20 years. 

In comparison, mine projects in Canada and Australia can obtain the necessary 

permits in 2 to 3 years. 

Critics of the legislation have raised concerns about the broad definition of 

‘strategic and critical minerals’ in the bill. The definition was written broadly to capture the diversity of the Nation’s mineral endowment. This includes the ‘rare earth 

minerals’ that were featured in a 60 Minutes special in March of this year. 

Last year at an oversight hearing on supply and demand of critical minerals, the 

minority witness, Dr. Eric S. Peterson with the Center for Advanced Energy Studies 

at the Idaho National Laboratory, was asked whether lead was a critical mineral 

replied. He replied, ‘‘Criticality is in the eye of the beholder . . . if it’s needed for 

your process then yes it is critical. . .’’ 

Now let’s take a look at copper, a mineral commodity the United States produces 

and has significant reserves and resources of, yet we still import 31 percent of what 

our society needs. It’s also a mineral that is crucial for renewable energy and alternative fueled vehicles (Slide 1). 

You can see from this slide that a hybrid vehicle requires twice as much copper 

as a vehicle that runs on gasoline. At 165 lbs. of copper per vehicle, the electric car 

requires almost three times as much. 

Demand for copper is projected to outstrip supply sometime after 2017 with a 

deficit increasing to 10 million tonnes by 2028 (Slide 2). 

The third slide illustrates the problem we’re here to discuss today—long permitting timelines. Currently the average timeline from discovery to production is 20 

years for large copper deposits. World-wide there are not enough large copper prospects in the pipeline to address the supply shortfall that is projected for the near 

future. 

One might ask how long permitting timelines affect the economics of a given deposit and a company’s ability to maximize the quantity of the resource they’re able 

to recover. 

4 

A study commissioned by the National Mining Association released this morning 

found that a typical mining project in the United States loses more than one-third 

of its value as a result of the delays in obtaining the various permits required for 

mine construction and production. 

The cost and increased risk associated with these delays can cut the expected 

value of a mine in half and in some cases make the project uneconomic. This drives 

investors to fund overseas projects even in places like the Democratic Republic of 

Congo. 

Mr. Amodei’s legislation goes a long way to address this problem and is a first 

step in addressing the Nation’s troublesome dependence on foreign sources of mineral resources. 

I want to thank the witnesses for being here and look forward to hearing from 

them today. 

Mr. LAMBORN. In a moment I am going to recognize the Ranking 

Member for an opening statement. In the meantime, I am going to 

hand the gavel over to one of the fine members of our committee, 

Colonel Paul Cook of California, and at this point recognize the 

Ranking Member for his statement. 

STATEMENT OF THE HON. ALAN S. LOWENTHAL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF 

CALIFORNIA 

Dr. LOWENTHAL. Thank you, Mr. Chair. Before I begin, I ask 

unanimous consent to introduce into the record a letter from many, 

many groups on behalf of thousands of mining-impacted 

communities. 

[No response.] 

Mr. COOK [presiding]. Without objection, so ordered. 

Dr. LOWENTHAL. Thank you, Mr. Chairman, for holding this 

hearing. Critical minerals are indeed vital to many high-tech U.S. 

industries, and I support the goal that the United States have a 

steady supply of these important materials. We are currently very 

much dependent on Chinese imports for many of these critical minerals, maybe not as much as a few years ago, but any situation in 

which one source is relied upon too heavily creates an inherent 

supply risk. 

I think there is a lot of opportunity for us to work together on 

this issue to evaluate and secure the Nation’s critical mineral 

needs. However, I believe that H.R. 1937 misses the mark on this 

opportunity. Despite its title, the bill has little to do with critical 

minerals. Instead, it aims to simply speed the access that mining 

companies will have to royalty-free taxpayer resources. 

The Department of Energy and the National Academy of 

Sciences, among many others, have defined critical minerals as elements that are vital to U.S. industry and that also have a high risk 

of supply disruption. These organizations concluded that rare earth 

minerals, platinum group metals, and lithium, are critical minerals, based upon their industrial importance and our dependence 

on foreign sources. 

But H.R. 1937 ignores this well-established definition. Instead, it 

offers one of its own, which is so broad that it even encompasses 

sand and gravel. I am not saying that these minerals are unimportant. They are certainly essential in construction, manufacturing, 

and building infrastructure, but they aren’t critical because there 

5 

is no risk of a shortage. We import less than half of a percentage 

point of all our sand and gravel needs. We have a diverse domestic 

supply. There is no risk of being held hostage by some foreign dictator for our sand and gravel needs. And there is no evidence that 

our construction industries are suffering from an acute shortage of 

rocks. 

Yet, under the guise of critical need, this bill would exempt sand, 

gravel, and all other hard rock mines from full review under the 

National Environmental Policy Act (NEPA), putting our public 

lands at risk and eliminating important opportunities for public 

comment. Further, the bill would overturn the principle of multiple 

land use management, by requiring that resource extraction take 

priority over all other uses of our public lands. 

These changes over-ride our bedrock environmental laws, leaving 

in their place thin assurances that environmental impacts will be 

mitigated while resource development is maximized. The reason for 

this, the Majority argues, is that review under NEPA is too time 

consuming, and unnecessarily delays mine permitting. They try to 

claim that the Administration is on their side in this argument by 

pointing to an executive order aimed at expediting the permitting 

of critical infrastructure projects. Yet this order was written to 

work within the guidelines of NEPA to improve coordination, not 

to strip away the entire process. We cannot throw away the NEPA 

process simply because it takes too long. 

What really adds insult to injury in this bill is the fact that once 

these hard rock mines are permitted, taxpayers don’t see a dime 

for the resources extracted from their lands. Under the Mining Act 

of 1872, there are no royalties charged on the resources extracted, 

no matter how valuable they may be. Over $300 billion of gold, 

silver, copper, and other valuable minerals have been taken from 

public lands without one dime in royalties returning to the 

American taxpayer. 

This 1872 law, passed when Ulysses S. Grant was the President, 

which is still in effect, was designed primarily to attract settlers to 

the West. I have late-breaking news: I am from California, and I 

can assure you the West has been settled. It is now safe to update 

this law. 

That is why I have introduced the Hardrock Mining Reform and 

Reclamation Act with Ranking Member Grijalva and other colleagues from this committee. Mining reform should focus on bringing revenues to taxpayers, and protecting the American public from 

environmental damage and the cost of reclaiming waste mine land. 

By weakening environmental review, H.R. 1937 is designed to 

make this situation even worse for mining in this country, which 

has already left a legacy of environmental cleanup that is costing 

American taxpayers billions of dollars. 

I cannot support any mining legislation that would not seek to 

improve existing law, never mind supporting one that makes conditions worse. 

Thank you, Mr. Chair, and I yield back my time. 

[The prepared statement of Dr. Lowenthal follows:] 

6 

PREPARED STATEMENT OF THE HON. ALAN S. LOWENTHAL, RANKING MEMBER, 

SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES

Thank you, Mr. Chairman, and thank you for holding this hearing. 

Critical minerals are indeed vital to many high-tech U.S. industries, and I support 

the goal of ensuring that the United States has a steady supply of these important 

materials. We are currently very dependent on Chinese imports for many of these 

critical minerals—not as much today as a few years ago—but any situation where 

one source is still relied upon too heavily creates an inherent supply risk. So I do 

think that there is a lot of opportunity to work together on this issue, and for us 

to find agreement on ways to evaluate and secure the Nation’s critical mineral 

needs. 

I believe that H.R. 1937, however, misses the mark on this opportunity. Despite 

its title, the bill has very little to do with critical minerals. Instead, it aims to simply speed royalty-free access for mining companies to the taxpayer’s natural 

resources. 

The Department of Energy and the National Academy of Sciences, among many 

others, have defined critical minerals as elements that are vital to U.S. industry 

AND that have a high risk of a supply disruption. These organizations concluded 

that rare earth elements, platinum group metals, and lithium are critical minerals 

based on their industrial importance and our dependence on foreign sources. But 

H.R. 1937 ignores this well-established definition and instead offers one of its own, 

which is so broad that it even encompasses sand and gravel. 

Not that these materials are unimportant—they are certainly essential in 

construction, manufacturing, and building infrastructure—but they aren’t critical 

because there is no risk of a shortage. We import less than half of a percentage 

point of all of our sand and gravel needs. We have a diverse and abundant domestic 

supply. You may not have seen any platinum in your back yard as a kid (and if 

you did, you are rich now), but I imagine we’ve all seen sand and gravel . . . 

everywhere. 

Thus, there’s no risk of being held hostage by some foreign dictator for our 

Nation’s sand and gravel needs. And again, there’s no evidence that our construction 

industries are suffering from an acute shortage of rocks. 

Yet, under the guise of ‘‘critical need,’’ this bill would exempt sand, gravel, and 

all other hard rock mines from full review under the National Environmental Policy 

Act (or NEPA), putting our public lands at risk and eliminating important opportunities for transparency and public comment. Further, the bill would overturn the 

principle of multiple use land management by requiring that resource extraction 

take priority over all other important uses of our public lands. 

These changes would over-ride our bedrock environmental laws, leaving in their 

place thin assurances that environmental impacts will be mitigated while resource 

development is maximized. 

The reason for this, the Majority argues, is that review under NEPA is too time 

consuming and unnecessarily delays mine permitting. They try to claim that the 

Administration is on their side in this argument by pointing to an executive order 

aimed at expediting the permitting of critical infrastructure projects. Yet this order 

was written to work within the guidelines of NEPA to improve coordination, not 

strip the entire process away. We cannot throw away the NEPA process simply because it takes too long. 

What really adds insult to injury about this bill is the fact that, once these hard 

rock mines are permitted, taxpayers don’t see a dime for the resources extracted 

from their lands. Under the Mining Law of 1872, there are no royalties charged on 

the resources extracted, no matter how valuable they may be. Over $300 billion of 

gold, silver, copper, and other valuable minerals have been taken from public lands 

without one dime in royalties returning to the American taxpayer. 

This outdated 1872 Law, which is still in effect, was designed to attract settlers 

to the West. 

I’m from California. I can assure you, the West is settled. 

It’s safe to update this law now. 

This is why I introduced the Hardrock Mining Reform and Reclamation Act with 

Ranking Member Grijalva and other colleagues from this committee. Mining reform 

should focus on bringing revenues to taxpayers, and protecting the American people 

from environmental damage and the costs of reclaiming waste mine land. 

Unfortunately, by weakening environmental review, H.R. 1937 is designed to 

make the situation even worse for mining in this country, which has already left 

a legacy of environmental cleanup that is costing American taxpayers billions of dolVerDate Mar 15 2010 08:38 Jan 05, 2016 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 J:\114TH CONGRESS\ENERGY & MINERALS\06-25-15\95301.TXT DARLEN
7 

lars. I cannot support mining legislation that does not try to fix existing law, never 

mind one that would make conditions worse. 

I yield back the balance of my time. 

Mr. COOK. Thank you. I will now recognize the author of 

H.R. 1937, Representative Amodei, for a brief statement about his 

bill. 

STATEMENT OF THE HON. MARK E. AMODEI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEVADA 

Mr. AMODEI. Thank you, Mr. Chairman, Mr. Ranking Member. 

For your record, Mark Amodei, representing Nevada’s original congressional district. 

What H.R. 1937 seeks to do is provide some predictability and 

stability to the permitting process. There is nothing in H.R. 1937 

which requires Federal land managers to approve an application to 

mine on public land. That is a very important point, that it doesn’t 

require a yes, it requires a specific timeline in which to go through 

the NEPA process. 

Now, let’s talk about the timeline for the NEPA process. In the 

bill, it is 30 months. That is longer than you serve after you are 

elected by your constituents to come here, by one-and-a-half times. 

That is much longer than it takes you to get elected to serve here. 

That is a period of time that, in previous testimony on this bill, 

when it was pointed out that the Administration indicated, ‘‘We’re 

doing real good, and it only requires us 17 months to process a typical land use application,’’ you say, ‘‘Well, then, what is your objection to more than doubling that time frame? ’’ 

There is also an extension provision in H.R. 1937 which says, ‘‘If 

you need more time, and everybody agrees to that, then you can 

extend that process for an additional 6 months.’’ By one-sixth you 

can extend that, so that if there are issues that need to be worked 

out—in what sense, committee members, in a NEPA sense—that 

you have one-sixth more time to go do that. 

Now, why are we talking about time at all in the context of permitting mining on Federal lands? Because there is a de facto track 

record that is very clearly demonstrable, that in this industry, 

which requires the investment of money to develop these projects, 

there has been a very effective de facto culture that says, ‘‘If we 

can just delay, delay, delay, those investors will go elsewhere.’’ 

And, Mr. Chairman and committee members, they are going 

elsewhere. 

And you sit there and say, ‘‘Well, what is the damage in that? ’’ 

To refer to the environmental track record of the minerals extraction industry in my neck of the woods is a historical statement. The 

stories on reclamation and responsible operation for minerals extraction, in terms of restorations of land that is mined and also historical ones that, because these people are there, they picked up 

those watershed restorations, those property restorations, are indeed excellent. 

I can tell you that the Nevada Department of Environmental 

Protection, who supervises these things directly, has an excellent 

record in modern times, over the last three decades, of making 

8 

folks do the right thing by the environment. There is nothing in 

this legislation that says, ‘‘Let’s ignore NEPA, let’s trash the environment.’’ It says, ‘‘Listen. If somebody files an application for minerals extraction on public property, here is the amount of time 

you’ve got. So plan accordingly. Bureau of Land Management, set 

up your schedule. Tell people that if they want to participate in the 

process, here are their opportunities.’’ And there you go. 

Now, if you get to the end of that process and that land manager 

says, ‘‘I think the permit should be denied,’’ this does nothing to 

change that discretion and that compliance with NEPA. It merely 

says you cannot sit there and delay the thing until the investors 

or the prospect dies of old age—my words, nobody else’s. But it is 

an important thing, in terms of—we just want a limit on how long 

you study this thing to death. 

I know that is a novel concept in the organization we are all in, 

since we are not famous for swift action on much of anything. But 

let’s change for a minute to too broad. I find it interesting to say, 

‘‘Well, it is too broad, and it needs to be this.’’ I think there was 

a statement made earlier that is indeed the truth—it is in the eyes 

of the beholder. I think back to the Loma Prieta earthquake in 

California, when we had freeways that all of a sudden were no 

longer freeways. So you needed to get those back up and operating 

again. Well, guess what? Sand and gravel supply was critical at 

that point in time. I am not saying there should be a blanket everything on it, if there is an amendment that says you have to do 

some special showing under the context to get into this. But I can 

tell you sand and gravel supply, when you are trying to replace a 

freeway system in a major metropolitan area in California, is a 

critical thing, in the eyes of those beholders. 

I will also indicate that when you talk about the royalties, you 

have totally ignored the fact that this is an industry which pays 

one of the highest average wages, pays number one in my state in 

state and local taxes, and also the income taxes on those wages are 

significant. So, if you want to just judge it on straight up, if after 

30 months or before 30 months the land manager thinks that the 

permit ought to be denied, then they should deny it. But we 

shouldn’t have to find out that the time frame for deciding is whatever it happens to be on a certain case without any limits. 

Thank you, Mr. Chairman, for your indulgence, and I yield back. 

Mr. COOK. Thank you very much. We are playing Beat the Clock 

today. So, right now, while we have the author, does anyone— 

Ranking Member, other Members—have any brief questions? 

Dr. LOWENTHAL. I don’t believe so. 

Mr. COOK. OK. Anyone else? 

[No response.] 

Mr. COOK. Thank you. I know you have other commitments, we 

are all running around. Chicken Little would be proud of you. 

Thank you, Mr. Amodei. 

Dr. LOWENTHAL. Chicken Little? 

Mr. COOK. I am Chicken Little today, the sky is falling. 

At this point, I would like to invite the witnesses to come forward, be seated at the witness table. Mr. Labrador, I see that you 

are there. Would you like to briefly introduce the witness from 

Idaho, once he is seated? 

9 

Mr. LABRADOR. Thank you, Mr. Chairman. I am pleased to introduce Luke Russell. Luke serves as a Vice President of External 

Affairs for Hecla Mining Company. He has over 30 years of experience in mine permitting in the United States and abroad. He has 

a Master of Science in Mine Land Rehabilitation from Montana 

State University, and a Bachelor of Science in Landscape Architecture from the University of Wisconsin, Madison. Hecla Mining 

Company has a rich history in Idaho, and in my district, and will 

be celebrating its 125th anniversary next year. 

Thank you for being here, Luke, and we look forward to hearing 

your testimony. 

Mr. COOK. Thank you. So I don’t get confused, the way it is 

seated right now, I am going to introduce everyone that is there. 

We have Mr. Mark Fellows, we have Mr. Sam Kalen—if I pronounced that correctly, Mr. Jeffery Green, and Mr. Luke Russell. 

Let me remind the witnesses that, under our Committee Rules, 

they must limit their testimony to 5 minutes, and then you will 

hear this little tap, tap, tapping. But your entire statement will appear in the hearing record. 

When you begin, the lights on the witness table will turn green. 

After 4 minutes, the yellow light will come on. Your time will have 

expired when the red light comes on. If you are color-blind, we are 

all in trouble. 

I will ask you to please complete your statement. I will also allow 

the entire panel to testify before questioning the witnesses. 

So, right now we will start off with Mr. Fellows. Thank you for 

being here. 

STATEMENT OF MARK FELLOWS, SNL METALS & MINING, 

METALS CONSULTING, ON BEHALF OF THE NATIONAL 

MINING ASSOCIATION, LONDON, UNITED KINGDOM 

Mr. FELLOWS. Thank you very much, Mr. Chairman, the 

committee, for having me here to speak today. 

SNL Metals & Mining is a subsidiary of SNL Financial, which 

is a U.S.-based data, news, and consulting business focused on the 

financial, real estate, media, energy, and mining sectors. In early 

2015, the National Mining Association commissioned SNL to carry 

out a study aiming to quantify the impact of permitting delays on 

the economic value of mining projects. This study is published 

today, and I would like to submit it to the committee for the record. 

We embarked upon this assignment in the hope of creating a 

piece of unique research which would demonstrate empirically the 

destruction of value which results from unnecessary, extended 

delays to project development. What we found is that, on average, 

a typical mining project loses over one-third of its economic value 

as a result of protracted delays in receiving the numerous permits 

needed to begin production. The longer the wait, the more the 

value of the investment is eroded, even to the extent that the 

project ultimately becomes an unviable investment. Even a large, 

high-grade deposit will remain unmined if the balance between 

cost, revenue, and timetable are not favorable. 

This inefficient permitting system has partially blocked the pipeline along which projects advance to become productive mines. We 

found that although mining companies continue to invest in exploVerDate Mar 15 2010 08:38 Jan 05, 2016 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 J:\114TH CONGRESS\ENERGY & MINERALS\06-25-15\95301.TXT DARLEN
10 

ration, a greater proportion of projects are stuck in the earlier 

phases of development, despite evidence that a healthy mining 

sector is an important component of the economy. This has left the 

United States dependent on active mines whose remaining life is 

declining or leaving the country reliant on mineral resources from 

abroad. 

It takes, on average, 7 to 10 years to secure the permits needed 

to commence operations in the United States. To put that into perspective, in Canada and Australia, countries with similarly stringent environmental regulations, the average permitting period is 2 

years. In the United States, the requirement for multiple permits 

and multiple agency involvement is the norm, as is the involvement of other stakeholders, including indigenous groups, the general public, and non-governmental organizations. 

In Canada and Australia, the timeline for government to respond 

is more clearly outlined, the specification of lead agencies is clearer, and the responsibility for preparing a stringent environmental 

review lies with the mining company, not the government. 

Our study examines several real-world examples of mines where 

delays have eroded value. The Rosemont Copper project in Arizona 

continues in its attempt to secure permits, 5 years after the originally planned start date of 2010. Over this period, the value of the 

project has fallen from $18 billion to $15 billion, despite much 

higher copper prices. 

The Kensington gold mine in Alaska was plagued by permitting 

issues during development. It commenced production in 2010, 17 

years after the originally planned start date of 1993. By the time 

the mine opened, the capital cost of building it had increased by 

49 percent, and the company had reduced planned gold production 

by nearly one-third, to focus mining operations on the most profitable part of the deposit only. 

Earlier research conducted by SNL in 2014 established why a 

healthy mining sector is important for the U.S. economy. There is 

a mismatch between mineral supply and demand in the United 

States. It ranks as only the seventh largest mining nation, globally, 

although it is the world’s largest manufacturer. 

Another key finding of our previous research was that manufacturing activity is returning to the United States, driven by manufacturers’ desire to reduce the risks in their supply chains, and 

consumers’ increasing concerns regarding corporate accountability. 

Consumers want to see evidence of sustainable production processes, use of recycled materials, and sound environmental practices. Made in USA gives them that assurance. 

Our third key conclusion was that, relative to their global peers, 

U.S. miners are highly efficient, often exemplifying best practices 

with regards to productivity, sustainability, and safety. The United 

States remains highly prospective, from a geological point of view, 

with abundant, diverse mineral resources. A duplicative, inefficient 

permitting system presents a significant barrier to American companies’ access to minerals. 

Thank you very much for your time. 

[The prepared statement of Mr. Fellows follows:] 

11 

PREPARED STATEMENT OF MARK FELLOWS, DIRECTOR OF CONSULTING, 

SNL METALS & MINING

I would like to start by thanking the committee for inviting me to speak here 

today. 

SNL Metals & Mining is a subsidiary of SNL Financial, a U.S.-based data, news 

and consulting business focused on the financial, real estate, media, energy and 

mining sectors. 

In early 2015, the National Mining Association commissioned SNL Metals & 

Mining to carry out a study aiming to quantify the impact of permitting delays on 

the economic value of mining projects. We embarked upon this assignment in the 

hope of creating a piece of unique research, which would demonstrate empirically 

the destruction of value which results from unnecessary, extended delays to project 

development. 

What we found is that on average, a typical mining project loses over one-third 

of its economic value as a result of protracted delays in receiving the numerous permits needed to begin production. The longer the wait, the more the value of the investment is eroded, even to the extent that the project ultimately becomes an 

unviable investment. Even a large high-grade deposit will remain unmined if the 

balance between costs, revenue and timetable are not favorable. 

This inefficient permitting system has partially blocked the pipeline along which 

projects advance to become productive mines. We found that although mining companies continue to invest in exploration, an ever-greater proportion of projects is 

stuck in the earlier phases of development, despite evidence that a healthy mining 

sector is an important component of the economy. This has left the United States 

dependent on active mines whose remaining life is declining or on mineral resources 

from abroad. 

It takes on average 7 to 10 years to secure the permits needed to commence operations in the United States. To put that into perspective, in Canada and Australia, 

countries with similarly stringent environmental regulations, the average permitting period is 2 years. In the United States, the requirement for multiple permits 

and multiple agency involvement is the norm, as is the involvement of other stakeholders, including local indigenous groups, the general public and nongovernmental 

organizations. In Canada and Australia the timeline for the government to respond 

is more clearly outlined, the specification of lead agencies is clearer, and the responsibility for preparing a stringent environmental review lies with the mining 

company, not the government. 

Our study examines several real-world examples of mines where delays have 

eroded value. 

The Rosemont Copper project in Arizona continues in its attempts to secure permits, 5 years after the originally planned start date of 2010. Over this period the 

value of the project has fallen from $18 billion to $15 billion despite much higher 

copper prices. 

The Kensington gold mine in Alaska was plagued by permitting issues during development. It commenced production in 2010, nearly 20 years after the originally 

planned start date of 1993. By the time the mine opened, the capital cost of building 

the mine had increased by 49 percent, and the company had reduced planned gold 

production by nearly one-third, to focus mining operations on the most profitable 

part of the deposit only. 

Earlier research conducted by SNL in 2014 established why a healthy mining sector is important for the U.S. economy: there is a mismatch between mineral supply 

and demand in the United States; it ranks as only the seventh largest mining nation, although it is the world’s largest manufacturer. Another key finding of our previous research was that manufacturing activity is returning to the United States, 

driven by manufacturers’ desire to reduce the risks in their supply chains and consumers’ increasing concerns regarding corporate accountability. Consumers want to 

see evidence of sustainable production processes, use of recycled materials and 

sound environmental practices. 

Our third key conclusion was that relative to their global peers, U.S. miners are 

highly efficient, often exemplifying best practices with regard to productivity, 

sustainability and safety. The United States remains highly prospective, from a geological point of view, with abundant, diverse mineral resources of high quality. A 

duplicative, inefficient permitting system presents a significant barrier to American 

companies’ access to minerals. 

12 

Mr. COOK. Thank you very much. Right on schedule. The Chair 

now recognizes Mr. Russell to testify. 

STATEMENT OF LUKE RUSSELL, VICE PRESIDENT, EXTERNAL 

AFFAIRS, HECLA MINING COMPANY, COEUR d’ALENE, IDAHO 

Mr. RUSSELL. Good morning, Mr. Chairman, Ranking Member 

Lowenthal, other members of the committee. As Representative 

Labrador said, I am Luke Russell with Hecla Mining Company. 

Hecla is the oldest precious metals mining company in North 

America. We currently have U.S. projects in Alaska, Idaho, 

Colorado, Nevada, and Montana. 

My experience includes more than 30 years in mine permitting 

in western states, as well as internationally. In my international 

experience, mine projects are commonly permitted in 2 to 3 years. 

This is not due to lower international standards. Far from it. The 

countries I have worked in generally have requirements that are 

at least as protective as those in the United States. What these 

countries do have are predictable permitting processes. If the regulatory professionals in Canada and Australia can get the job done 

in 2 to 3 years, so can we, here in the United States. 

To be clear, valid concerns about environmental protection need 

to be fully considered and addressed. At the same time, frivolous 

matters should not serve as an excuse to trap mining projects in 

limbo of unpredictable and endless review. We should not confuse 

the length of the process with the rigor of the review. 

I would like to share a couple of examples of some lengthy 

permitting processes I have been involved with. 

Before working with Hecla, I worked with Coeur Mining, which 

owns the Kensington mine in southeast Alaska. Permitting of that 

mine started in 1988. Over the next 17 years, it went through 

three permitting efforts to gain Federal and state approvals, only 

to be followed by 5 years of litigation. It ultimately went to the 

U.S. Supreme Court, which ruled in favor of the agency’s original 

decision to approve the project. Unfortunately, during the litigation 

period more than 100 workers were idle. The permitting and litigation delay did not only cost the company a significant amount of 

money, it also impacted the community of Juneau, due to uncertainty and loss of high-paying jobs during the construction period. 

Another example. Hecla recently acquired the Rock Creek project 

in northwestern Montana. Rock Creek is the largest undeveloped 

silver-copper deposit in the United States. The first permit application for that project was submitted in the late 1980s. While over 

a decade in the process, an EIS was finally issued in 2001, followed 

by appeals and litigation which continued through 2012, or over 11 

years. In response to a court decision in 2010, the Forest Service 

initiated a supplemental Environmental Impact Statement. Today, 

some 5 years later, a draft Supplemental Impact Statement has not 

yet been developed for public comment. 

H.R. 1937 will significantly improve the permitting process. 

Similar to other legislative efforts of commerce, like the 2012 MAP21, Moving Ahead for Progress in the 21st Century Act and the 

2014 Water Resources Reform and Development Act, the bill seeks 

to streamline the U.S. permitting process specifically for strategic 

and critical minerals, without compromising the process. 

13 

The bill will coordinate the actions of Federal agencies to eliminate duplication, outline the responsibilities of the lead permitting 

agency, address unending legal challenges to mine projects by requiring civil actions to be filed within set time frames, and establish clear and predictable permitting time frames. And when I say 

streamline permitting, the bill does not advocate skipping of steps, 

but combining steps and doing things in parallel, rather than in sequence. This is how effective permitting managers have completed 

the process in a shorter time frame. 

I have seen U.S. projects that have completed the NEPA process 

within the 30-month period proposed in this legislation. Some recent examples: the BLM completed an environmental assessment 

for an expansion of the Rochester mine in Nevada in 16 months; 

an EIS for the Pan mine in less than 2 years; and an EIS for the 

Hycroft mine in less than 20 months. 

In establishing a firm timeline to complete the NEPA process, 

the bill does not ask the permitting agencies to do something that 

has not already been demonstrated to be possible in the United 

States, as well as major mineral-producing countries of Canada, 

Australia, and Chili. H.R. 1937 is legislation that will encourage 

and facilitate the domestic production of strategic and critical minerals without lessening the robust environmental standards of the 

United States. 

On behalf of Hecla Mining, I thank you for this opportunity to 

testify, and appreciate your consideration of these comments. 

[The prepared statement of Mr. Russell follows:] 

PREPARED STATEMENT OF LUKE RUSSELL, V.P. EXTERNAL AFFAIRS, HECLA MINING COMPANY

INTRODUCTION

Chairman Lamborn, Ranking Member Lowenthal and members of the committee, 

my name is Luke Russell and I am V.P. of External Affairs for Hecla Mining 

Company. Hecla Mining Company (NYSE:HL) is the oldest precious metals mining 

company in North America and was established in 1891 in northern Idaho’s Silver 

Valley. We are the United States’ largest primary silver producer and third largest 

producer of lead and zinc. We currently have U.S. operations and projects in Alaska, 

Idaho, Colorado and Nevada and just last week completed the acquisition of the 

Rock Creek project in Montana. 

My experience includes more than 30 years in mine permitting, mine reclamation 

and environmental compliance in several western states including: Idaho, Alaska, 

Nevada, South Dakota, and now Montana. In addition I have permitted mines internationally in Chile, Argentina, New Zealand, Mexico and Bolivia. I have served as 

Trustee and past-President of the American Exploration & Mining Association. In 

addition to my industry experience I also have worked inside government serving 

as Remediation Manager with the Idaho Department of Environmental Quality. 

In my experience, permitting a mine in the United States is by far the most challenging. This is not due to a lower international standard of environmental requirements—the countries listed above have environmental standards that are at least 

as protective as the U.S. standards. What these other countries have are permitting 

processes that are much more clearly defined and that have the expectation that 

a decision will be made within a given time frame. The U.S. process is fraught with 

duplication, inefficiencies, a lack of reasonable time frames/sideboards, a lack of coordination among Federal agencies and multiple, never-ending litigation. It is by far 

the most arduous and tortuous process in the world. While the rule of law generally 

favors the Americas, this long and uncertain process is no incentive to invest here. 

Time is money and unnecessary delays and duplication in the permitting process 

strands capital and discourages long-term investments in producing domestic minerals. Compare our exceedingly long permitting time with Chile, Canada and 

Australia where the average permitting time is between 2 and 3 years while incorporating essentially the same environmental and engineering standards as the 

14 

1T.E. Graedel, E.M. Harper, N.T. Nassar, and Barbara K. Reck: On the Materials Basis of 

Modern Society, School of Forestry and Environmental Studies, Center for Industrial Ecology, 

Yale University, October 2013. 2http://www.usatoday.com/story/money/markets/2014/08/29/no-silver-no-solar/14756397/. 

United States. If land managers and environmental regulatory professionals in 

these countries can get the job done in 2 to 3 years, so can the United States. 

Demand for minerals is also increasing across the spectrum of modern technology 

from electronics and electrical systems applications, aerospace and defense, to the 

energy industry. For example, a modern computer chip contains more than half of 

the elements in the periodic table and even though they may be present in very 

small amounts, each is essential to function and performance.1 My daughters would 

say their phone is strategic and critical to their way of life, and 40 key minerals 

in their smartphones includes tantalum, tungsten, copper, iron, nickel, aluminum, 

tin, silver, chromium, gold, and palladium and nine separate rare earth elements. 

Many of the uses of critical and strategic minerals overlap and converge in the 

field of renewable energy. Wind turbines would not be possible without mined materials. Just one turbine contains 335 tons of steel and almost 5 tons of copper. 

Similarly, solar panels cannot be made without mined materials like steel, copper, 

silicon, aluminum and the unique metal that we at Hecla produce, silver. 

Silver has the highest electrical and thermal conductivity of all metals, and is the 

most reflective. These physical properties make it a highly valued industrial metal, 

especially when used in solar cells. Silver paste is actually a primary ingredient in 

90 percent of the most common solar panels. Overall, the solar industry uses about 

5 percent of the world’s annual silver supply, or an estimated 52.4 million ounces. 

However, as demand for solar increases, especially in China, the demand for silver 

used in solar energy could double. As a result it is estimated the solar industry may 

use 100 million ounces of silver this year.2

The United States has become increasingly dependent on foreign sources of strategic and critical minerals and this vulnerability has serious national defense and 

economic consequences. According to the U.S. Geological Survey, the United States 

is more than 50 percent import reliant for 43 critical minerals (the United States 

is roughly 40 percent import reliant on crude oil) and 100 percent import reliant 

for 19 critical and strategic minerals despite having the third largest source of mineral wealth in the world. Our growing dependence on imports leaves many key domestic industries unnecessarily vulnerable to disruptions from extended, complex 

and fragile supply chains. The length of time it takes to secure permits in the 

United States is a key reason behind this dependency on foreign sources. 

PERMITTING DELAY

The United States has one of the longest permitting processes in the world for 

mining projects. A 2014 Behre Dolbear report ranking the 25 leading mining countries noted that permitting delays are the most significant risks to mining projects 

in the United States with an average 7- to 10-year period required before mine development can begin. Consequently, the United States lags in attracting job-creating 

exploration dollars. The Metals Economics Group reports that the United States, despite having significant mineral resources, attracts only 7 percent of total worldwide 

exploration dollars. In the mid-1990s, the United States attracted approximately 20 

percent of worldwide exploration dollars. Permitting delays and security of tenure 

issues are the major reasons why the U.S. share has dropped by two-thirds. 

To be clear, valid concerns about environmental protection need to be fully considered and addressed. At the same time, frivolous matters should not serve as an 

excuse to trap mining projects in a limbo of duplicative, unpredictable and endless 

review without a decision point. We should not confuse the length of the process 

with the rigor of review. 

I would like to share a few examples of what I think are lengthy permitting 

processes I have been involved with. 

Greens Creek—Alaska 

Hecla is one of the largest private employers in southeast Alaska, and our Greens 

Creek mine is responsible for approximately 415 permanent, full-time jobs. The 

mine near Juneau, Alaska started production in 1989 producing almost 200 million 

ounces of silver so far and will produce more than 100 million additional ounces 

over its remaining life. Over 7.8 million ounces of silver were produced last year and 

is projected to produce a similar amount this year. The mine has provided over 

3⁄4 billion dollars in economic contributions to the southeast Alaska economy in just 

over the last 5 years alone. It is one of the world’s largest silver mines and produces 

gold, lead and zinc in important quantities as well. The mine has had an exemplary 

15 

environmental record and is located, in part, in a national monument area devoted 

to the largest concentration of brown bears in the world. 

With this history and a plan to only expand the existing tailings facility, one 

would expect the receipt of the permits to be done quickly. In 2010 Hecla submitted 

an application and the U.S. Forest Service (USFS) commenced preparation of an environmental impact statement (EIS). Understanding how long permitting can take 

the application was submitted 5 years before construction had to begin to avoid 

shutting down the mine due to lack of tailings capacity. Interestingly, the NEPA 

process could not begin until approval was received from the Secretary of 

Agriculture’s office in Washington, DC. This step had not been required in any of 

the previous permitting efforts at the mine. 

The final EIS was issued in the third quarter of 2013 and following appeals the 

ROD was finalized in December 2013. However, all the other required state and 

Federal permits, chiefly the 404 permit from the Corps of Engineers, were not received until the first part of 2015 or about 5 years after original permit submission. 

The final EIS selected alternative approved only an 18 acre expansion of the 62 acre 

existing facility even though the company had proposed a 150 acre expansion. This 

decision allows only about 9–10 more years of mining. As the current reserves extend the mine life beyond this time, this chosen alternative will lead to additional 

time consuming, costly and unnecessary bureaucratic processes. Thus, the company 

is being forced to already begin the planning process for its next permitting effort 

because of the long permitting lead times required. 

Kensington Mine—Alaska 

Prior to working with Hecla, I worked with Coeur Mining which owns the nearby 

Kensington mine in southeast Alaska. Permitting of the Kensington mine started 

in 1988. In July of 1992, the USFS approved a Plan of Operations for the 

Kensington Gold Project—a 4-year permitting effort. The plan called for underground mining and surface facility construction for ore processing (via cyanidation) 

and other ancillary operations. The mine did not receive all Federal permits due to 

regulatory process delay and did not proceed. 

In 1994, the company submitted a revised plan of operation designed to reduce 

the environmental footprint and address water quality concerns and in August 1997, 

the USFS approved a revised Plan of Operations—an additional 3 years permitting 

effort. The plan still called for underground mining but changes to the tailings management system were proposed. While the required permits were obtained the price 

of gold had decreased and so the project economics were no longer favorable to commence construction. 

In November 2001, the company submitted a plan amendment to the USFS for 

its approved 1998 Plan of Operations. The amendment again modified the proposed 

tailings management system. In December of 2004, the USFS finalized the Supplemental Environmental Impact Statement and issued the Record of Decision for the 

modified Kensington project. 

In the first half of 2005, the other state and Federal permits were obtained and 

construction commenced—another 4-year permitting effort. Permit appeals and litigation followed. The administrative appeal to the USFS was denied, which then lead 

to a lawsuit filed with the District Court. Plaintiffs lost in District Court but an appeal to the 9th Circuit led to a stay of construction in 2006 and more than 100 

workers were idled. The 9th Circuit then overturned the District Court. The case 

was then appealed to the U.S. Supreme Court which heard the case in early 2009. 

In June of that year, the Court ruled 6–3 in favor of the agencies and the company 

was able to resume construction. The first gold production occurred in 2010. 

The permitting process for the Kensington project lasted nearly 16 years. The 

final 4-year leg of the permitting process was then followed by a 4-year period of 

litigation. The permitting and litigation delay came at significant cost to the company and the community of Juneau due to uncertainty in the project and temporary 

loss of high paying jobs during the construction period. 

Rock Creek—Montana 

Hecla recently acquired the Rock Creek project in northwestern Montana. Rock 

Creek is the largest undeveloped copper-silver project in the United States containing an estimated 220 million ounces of silver and over 2 billion pounds of copper. The project has a long permitting history dating back to the first application 

for a mining permit in 1987. Following a change in ownership of the project the 

Forest Service and Montana Department of Environmental Quality (DEQ) jointly 

completed a FEIS and Record of Decision (ROD) in 2001.This was followed by several appeals and litigation. The Fish and Wildlife Service (FWS) withdrew its 

Biological Opinion (BO) in 2002 to settle a lawsuit causing the USFS to withdraw 

16 

its part of the 2001 ROD. A new BO and ROD were issued in 2003. Once again 

numerous appeals and litigation were filed, leading to a new BO in 2006 which was 

further supplemented in 2007. Additional litigation followed and in 2010 the U.S. 

District Court confirmed the Biological Opinion but remanded the 2003 FEIS back 

on to the Forest Service on very narrow NEPA procedural issues for further action. 

Litigants appealed the BO decision to the Ninth Circuit Court which in 2012 confirmed the agencies decision. 

Following the 2010 District Court decision the Kootenai National Forest commenced a Supplemental Environmental Impact Statement (SEIS) review to respond 

to the U.S. District Court Decision on the very narrow remanded NEPA issues. 

Now, after 5 years the Forest Service has still not yet released a draft SEIS for public comment. 

WHY THE PERMITTING PROCESS IS SO SLOW

In my experience, permitting delays are frequently caused by ineffective agency 

project management, unnecessary bureaucratic red tape, inefficient workforce issues 

within the Bureau of Land Management (BLM) and U.S. Forest Service (USFS), and 

multiple appeals and litigation. 

Poor project management skills by Federal agencies: the management of the 

multi-faceted aspects of NEPA for a mining project requires good project management skills. The ability to develop a work breakdown structure, schedule assigned 

responsibility and hold people accountable for deliverables. A successful project has 

consistency in management—a good project manager, who stays with the project. 

Training on minerals and mining and NEPA process: many Federal agency resource professionals are experienced in grazing, timber and recreation, but are not 

informed on minerals and mining development. Additional training on the NEPA 

process and the role of lead agency is critical to improving the Federal permitting 

process. The lead agency must lead; in many cases I have seen it defer to cooperating agencies or other stakeholder interests, instead of taking charge and leading 

the permitting process. H.R. 1937 addresses this inefficiency without compromising 

environmental standards. 

Fear of Litigation: We often hear BLM and USFS say they must make these documents legally ‘‘bullet proof.’’ This makes all issues potentially significant which is 

counter to NEPA which clearly envisioned the lead agency following scoping would 

focus on those truly significant issues that could affect the environment (40 CFR 

1502.2). 

Litigation: Many mining projects ‘‘die from a 1,000 cuts’’ through multiple appeals 

and litigation. The Rock Creek example illustrates how litigation can delay and 

string out project development. Anti-mining groups have sued multiple times and 

continue to litigate on ESA and NEPA issues in separate litigation efforts. This 

legal process grinds down both the agencies that must defend their permitting decisions and the company’s in hopes they will simply walk away from the project. 

While the company has millions of dollars and hundreds of high-paying jobs at risk, 

project opponents risk nothing with a chance to profit significantly by recovering 

their attorney fees through the Equal Access to Justice Act (EAJA). H.R. 1937 addresses this inequity by providing that all issues must be litigated in one lawsuit. 

Inefficient personnel system: Unfortunately, too often there are changes in management personnel during the project, changes in District Rangers, Forest 

Supervisors, BLM District Managers and with the Corps of Engineers all which 

leads to re-education, re-evaluations and loss of time in the permitting process. In 

addition, simply staffing a NEPA process can be difficult. For example, the Rare 

Element Resources project in Wyoming required over 11 months to simply get an 

EIS project manager assigned to the project. Clearly a more efficient personnel system can be implemented to get people in place to manage projects. This factor is 

compounded by the fact that in the USFS performance reviews, promotions and 

raises do not include an employees’ performance in managing mineral projects. 

Federal Register Notice Delay: Substantial delays result from a BLM Instruction 

Memorandum (IM) issued on December 23, 2009 (IM 2010–043) requiring all 

Federal Register Notices be sent to the BLM Washington Office for review and approval prior to publication in the Federal Register. This IM also implemented a 12- 

to 14-step review and approval process that is taking approximately 4 months per 

Notice, prior to publication. Notices are required for intent to start the NEPA process and public scoping, for a draft EIS and the final EIS. This Federal Register 

notice process can add almost a year to the permitting timeline for a simple administrative notice filing. Prior to 2000, these routine notices were processed and published in 30 to 45 days. 

17 

3https://www.whitehouse.gov/the-press-office/2012/03/22/executive-order-improvingperformance-federal-permitting-and-review-infr. 4http://mric.jogmec.go.jp/kouenkai_index/2010/briefing_100721_3.pdf. 

HOW H.R. 1937 CAN HELP IMPROVE A BROKEN SYSTEM

H.R. 1937 is well thought-out legislation that will encourage and facilitate the 

domestic production of strategic and critical minerals without lessening the robust 

environmental standards of the United States. H.R. 1937 will address key issues 

behind the delay in the permitting process: 

• Includes domestic mines that provide strategic and critical minerals within 

the scope of ‘‘infrastructure projects’’ as described in Executive Order 13604, 

the goal of which is to significantly reduce the review and permitting time 

frames for infrastructure projects; 

Specifically the objective of this executive Order includes: 

Reviews and approvals of infrastructure projects can be delayed due to many 

factors beyond the control of the Federal Government, such as poor project design, 

incomplete applications, uncertain funding, or multiple reviews and approvals by 

state, local, tribal, or other jurisdictions. Given these factors, it is critical that executive departments and agencies (agencies) take all steps within their authority, consistent with available resources, to execute Federal permitting and review processes 

with maximum efficiency and effectiveness, ensuring the health, safety, and security 

of communities and the environment while supporting vital economic growth. 

To achieve that objective, our Federal permitting and review processes must provide a transparent, consistent, and predictable path for both project sponsors and affected communities. They must ensure that agencies set and adhere to timelines and 

schedules for completion of reviews, set clear permitting performance goals, and track 

progress against those goals. They must encourage early collaboration among agencies, project sponsors, and affected stakeholders in order to incorporate and address 

their interests and minimize delays.3

• Addresses permitting delays for strategic and critical mineral development by 

coordinating the actions of Federal agencies to eliminate duplication, bureaucratic inefficiency and decade-long delays without compromising environmental protection; and, 

• Outlines the responsibilities of the lead permitting agency to ensure efficient 

permitting such as establishing binding time frames, coordinating with other 

agencies, relying on existing data, establishing any required financial assurance and allowing case-by-case adoption of the functional equivalence doctrine 

in lieu of separate NEPA analysis; 

We encourage the Federal agencies to consider the Alaska Large Mine permitting 

coordinator approach as an example of a state process that works to help streamline 

the permitting timeline while maintaining the integrity of the process. This provides 

a coordinated, efficient approach to mine permitting and oversight that benefits 

from multi-disciplinary expertise of team members to enable the public, agencies 

and applicant to view the project as whole. The large mine permitting coordinator 

participates in the NEPA scoping process, participates in public meeting and public 

hearings, and approves baseline data collection plans. 

Attachment 1 illustrates how the large mine permitting approach in Alaska was 

designed to ensure the processes are done in parallel rather than in sequence.4 As 

permitting requirements continue to evolve, this process ensures all steps are completed but in a parallel manner that streamlines the process and reduces duplication and inconsistency. When we say streamline permitting, it is these sort of 

administrative approaches that can greatly reduce the permitting time frame with 

no impact on the quality of the evaluation. We are not advocating skipping of steps, 

but combining steps and doing things in parallel rather than in sequence. This is 

how effective NEPA project managers have completed the process in a shorter time 

frame. 

• Establishes clear timelines to complete the permitting process. 

18 

While my experience includes examples of very long permitting timelines, I have 

also been involved with, and seen, projects that have completed the NEPA process 

within the 30-month period proposed in this legislation. Some recent examples: 

— The BLM completed an Environmental Assessment for an expansion for the 

Rochester mine in Nevada in about 16 months. Key issues included groundwater quality and evaluation of a pit lake or pit backfill, 

— The USFS completed an Environmental Assessment for the Mt. Hamilton 

mine in Nevada in about 17 months. Key issues included geochemistry, 

reclamation and Sage Grouse, 

— The BLM completed an EIS for the Pan mine in Nevada in less than 2 years. 

Key issues were Sage Grouse and groundwater, and, 

— The BLM completed an EIS for the Hycroft mine in Nevada in less than 20 

months. Key issues included quality and quantity, visual effects and cultural 

resource. 

In establishing a firm timeline to complete the NEPA process the bill does not 

ask the permitting agencies to do something that has not already been demonstrated as achievable in the United States as well as major mineral producing 

countries Canada, Australia and Chile. 

• Addresses the Department of Interior’s bureaucratic Federal Register review 

process for NEPA notices by delegating processing of such notices back to 

state offices; and, 

• Aims to reduce delays posed by litigation over permitting decisions by requiring challenges to be filed within 60 days of the final agency action in a single 

challenge and eliminates the ability of project opponents to recover attorney 

fees through EAJA. 

CONCLUSION

H.R. 1937 is legislation that will encourage and facilitate the domestic production 

of strategic and critical minerals without lessening the robust environmental standards of the United States. On behalf of Hecla Mining Company we appreciate the 

opportunity to testify here today and thank you for consideration of these comments. 

ATTACHMENT 1 

Alaska Large Mine Environmental Permitting and Oversight Process 

July 21, 2010—JOGMEC—Tokyo, Japan 

Slide #31 


95301.001.eps
19 

Mr. COOK. Thank you very much. The Chair now recognizes Mr. 

Kalen to testify. 

STATEMENT OF SAM KALEN, WINSTON S. HOWARD DISTINGUISHED PROFESSOR OF LAW, CO-DIRECTOR, CENTER FOR 

LAW AND ENERGY RESOURCES IN THE ROCKIES, UNIVERSITY OF WYOMING COLLEGE OF LAW, LARAMIE, WYOMING 

Mr. KALEN. Thank you, Mr. Chairman, members of the committee, thank you for the opportunity to appear before you today. 

As a former attorney at the Interior Department, a private practitioner, and presently as a law professor, I am particularly interested in the management of our Nation’s public lands. Today my 

testimony focuses on three principal issues. 

First, while I appreciate the important objective of promoting 

economic and national security interests and believe that most will 

agree that mere delay in process for process’ sake is undesirable, 

careful management of our public lands is critical. H.R. 1937, rather than reforming our public land management system to ensure 

that they remain vibrant and sustainable, could do the converse. 

For example, its approach toward NEPA, or by mandating as a priority in Section 103 if the mineral resource development should be 

maximized. Indeed, that mandate alone would threaten to disrupt 

long-settled principles of Federal land management under, for instance, the Federal Land Policy and Management Act. 

Second, the bill’s functional equivalency approach toward the 

National Environmental Policy Act is conceptually and pragmatically problematic. Conceptually, at the outset, the bill sets forth 

what it identifies as six critical aspects of NEPA, and then charges 

the appropriate agency with deciding whether those aspects have 

been satisfied. How that might be accomplished, though, is uncertain. Courts have struggled for quite some time with the idea of 

NEPA functional equivalency. And, indeed, they have concluded in 

only a few rare instances, primarily involving the Environmental 

Protection Agency, that the standard has been satisfied. With that 

said, EPA though is different, as a consequence of its mission and 

its programs. And indeed, EPA, through Section 309 of the Clean 

Air Act, as well as the Council on Environmental Quality, have a 

role in NEPA’s implementation that seemingly could be diminished 

under the alternative process prescribed by H.R. 1937. 

Pragmatically, though, moreover, it would be quite difficult for 

the appropriate agency to make that determination up front, 

whether in any particular case, or whether there is a sufficiently 

robust alternative process. The agency is charged with making that 

determination within 90 days of an application, provide an explanation for its decision, include the facts from a record, then show 

how those facts from the record justify the agency’s decision. Yet, 

at that juncture in the process, unless the agency has rendered a 

generic decision on a programmatic basis, there will not be any 

adequate record for the decisionmaker to even use. 

As such, I would suspect that the litigation risk would be too 

great for many to accept. Consequently, it would appear that the 

bill would likely trigger Section 102(e), and the ability of a project 

proponent to mandate entering into a schedule. But that standardized schedule and approach is too optimistic, because it requires too 

20 

much knowledge before the process has begun, may be unwieldy in 

practice, and might create litigation risk if it were enforced. 

Finally, many other aspects of H.R. 1937 would likely become 

problematic for the agencies to implement, and then for the judiciary to review. Take for instance the approach toward what 

constitutes strategic and critical minerals. The bill provides no definition, only a process that allows the agency to determine whether 

any ‘‘mineral,’’ a term that is not as self-defined as necessary to 

achieve one of the four listed objectives. 

I would add here that the hearing memo correctly notes that the 

process would allow for including even such things as sand and 

gravel. Yet neither, under Federal law nor most state laws, say 

sand and gravel are considered a ‘‘mineral.’’ With that said, however, the bill does not address how the agency will make that type 

of determination. On a case-by-case basis? On a programmatic 

basis? At what intervals, or what type of public input, if any? And 

if the determination is made, what then? 

If, for instance, the determination is rendered in a particular 

mineral exploration or mine permit application, then it might be an 

issue that could surface in any possible lawsuit, in which case a 

court might invalidate the decision and render the particular use 

of the H.R. 1937 process invalid, and force the agency and the applicant back to the drawing board. If the determination is made generically, outside any particular project, will that determination be 

reviewable separately and independent of the mineral exploration 

or mine permit? If so, then on what basis will it be reviewed by 

the courts? And with what administrative record? For these reasons alone, if I were advising a client, I might even suggest that 

it would not be worth the litigation risk to proceed under the 

H.R. 1937 process. 

Again, I thank you, Mr. Chairman and the committee, for allowing me to testify. And I would be glad to answer any questions that 

you might have. 

[The prepared statement of Mr. Kalen follows:] 

PREPARED STATEMENT OF SAM KALEN, WINSTON S. HOWARD DISTINGUISHED

PROFESSOR OF LAW, UNIVERSITY OF WYOMING COLLEGE OF LAW

Thank you, Mr. Chairman, for the opportunity to appear before the Subcommittee 

on Energy and Mineral Resources of the House Committee on Natural Resources. 

My name is Sam Kalen, and I am a Professor of Law at the University of Wyoming 

College of Law. I am honored to accept this committee’s invitation to testify on 

H.R. 1937, the National Strategic and Critical Minerals Production Act of 2015. 

For most of my career, I have focused on the administration of our Nation’s public 

lands, whether as an attorney in private practice, as an attorney in the Solicitor’s 

Office of the Department of the Interior, or more recently as a law professor. Because of this background, I am acutely interested in proposals that address whether 

and how mineral activity occurs on public lands. 

My testimony addresses five principal issues associated with H.R. 1937. At the 

outset, H.R. 1937 has the laudable goal of promoting economic and national security and interests, and meaningful efforts to explore reforming aspects of public land 

management—such as efforts to examine the 1872 Mining Law—are worthy endeavors. Indeed, Congress in the Mining and Minerals Policy Act of 1970 employs language about ‘‘foster[ing] and encourage[ing] certain private enterprise[s].’’ 30 U.S.C. 

§ 21a. So too, in the policy statement for the Federal Land Policy Management Act, 

Congress noted the ‘‘Nation’s need for domestic sources of minerals.’’ 43 U.S. 

§ 1701(a)(12). Yet H.R. 1937’s attempt to expand upon these notions is neither 

workable in administration nor desirable; indeed, it would most likely be quite difficult for agencies to implement aspects of H.R. 1937, and the bill, moreover, risks 

allowing mining activities on the public lands to proceed without ensuring that 

21 

1 Historically, various regulatory gaps contributed to fewer controls over operations on the 

public lands, with statutes such as the Resource Conservation and Recovery Act including provisions exempting certain wastes from hazardous waste regulation. See 42 U.S.C. § 6921 et seq., § 6921(b)(3)(C). At least until recently, the Clean Water Act too had limited ability to affect operations that principally impacted groundwater and involved simply withdrawals. See Great Basin 

Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006) (withdrawals); cf. Klamath Siskiyou 

Wildlands Center v. U.S. Forest Serv. (E.D. Cal. 2014) (noting that withdrawal examined in 

NEPA document). See generally U.S. Congress, Office of Technology Assessment, Managing 

Industrial Solid Wastes from Manufacturing, Mining, Oil and Gas Protection, and Utility Coal 

Combustion—Background Paper, OTA–BP–0–82 (GPO Feb. 1992) (examining management of 

solid wastes). 

those activities are thoroughly vetted by the public and reviewed by the appropriate 

agency or agencies for their possible adverse effects. 

But most importantly whether, where, and how mining occurs is critical, in order 

to ensure that the public lands are managed in a sustainable and environmentally 

sound manner that protects these lands for the future, prevents harming areas of 

‘‘critical environmental concern,’’ and avoids ‘‘unnecessary or undue degradation.’’ 17 

U.S.C. § 1732(b). Mining, after all, can require the use of important and potentially 

scarce water resources, can contaminate water resources, affect wildlife, and cause 

considerable damage to the landscape. See generally National Research Council, 

Hardrock Mining on Federal Lands 27 (1999) (Potential Environmental Impacts of 

Hardrock Mining); Envt’l Protection Agency, EPA’s National Hardrock Mining 

Framework (Sept. 1997); see, e.g., South Fork Band Council of Western Shoshone of 

Nevada v. U.S. Dep’t of the Interior, 588 F.3d 718 (9th Cir. 2009) (discussing BLM’s 

analysis of groundwater impacts for gold mine); Idaho Conservation League v. 

United States, 2012 WL 3758161 (D. Idaho 2012) (discussing Forest Service’s treatment of groundwater impacts from proposed project). Historically, after all, the 

Bureau of Land Management reports that 60 percent of all hazardous waste sites 

on public lands have resulted from ‘‘commercial uses’’—and roughly 50 percent of 

those from ‘‘[l]andfills, mines and mill sites, airstrips, and oil and gas’’ activities. 

BLM, Public Land Statistics 2014 241 (May 2015). See, e.g., Gordon M. Bakken, The 

Mining Law of 1872: Past, Politics, and Prospects 82–105 (2008) (one historical account). The Department, moreover, has been engaged in litigation over cleaning up 

public lands, often seeking recovery (when a potentially responsible party is still 

available) in the millions of dollars. E.g., U.S. v. Newmont USA, Ltd., 2008 WL 

4621566 (E.D. Wash. Oct. 17, 2008).1 Not surprisingly, therefore, the urgency of reforming the program for hardrock mining and particularly protecting the public 

lands from environmental damage has been widely recognized, at least since the 

1970s. See generally Council on Environmental Quality: 8th Annual Report 89 

(1977) (noting then President’s request to draft reform legislation); U.S. General 

Accounting Office, GAO/RCED–89–72, The Mining Law of 1872 Needs Revision 

(March 1989); John D. Leshy, The Mining Law: A Study in Perpetual Motion (1987); 

Charles F. Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of 

the American West 57–8 (1992). Indeed, when digesting the Public Land Law 

Review Commission’s report, almost exactly 45 years ago to the day, the New York 

Times reported how ‘‘all mineral interests known to be of value should be reserved 

with exploration and development discretionary in the Federal Government and a 

uniform policy adopted relative to all reserved mineral interests.’’ Digest of the 

Commission’s Report and Recommendations on Public Land Use, New York Times, June 24, 1970. 

Second, H.R. 1937’s approach toward the National Environmental Policy Act of 

1969 (NEPA), 42 U.S.C. §§ 4321–4347, while understandably seeking to reduce unnecessary duplication and avoiding unnecessary delay, presents several issues warranting careful consideration. Rather than strengthening the ability to protect the 

Nation’s public lands, it could do the converse. When it passed NEPA, Congress established an environmental charter that ensured that proposed major Federal 

actions ‘‘significantly affecting the quality of the human environment’’ would be examined through a broad lens; and, while the Supreme Court has since held that the 

act imposes only procedural not substantive obligations on Federal agencies, it provides a now well-trodden procedural path for ensuring that agencies take a hard 

look at the environmental consequences of the proposed action, seek public input, 

and render informed decisions. To the extent, therefore, that H.R. 1937 would diminish NEPA’s role and function in assisting the agencies’ decisionmaking process 

for whether, when, and how activities, such as mining, occur on the public lands 

is problematic. Indeed, in one instance where the court rejected a challenge to an 

expansion of mining operations, the court nevertheless emphasized the importance 

of the NEPA process: ‘‘The NEPA process worked here as it was designed to work. 

Plaintiffs, the public, and other state and Federal agencies had the opportunity to 

22 

2 Certain EPA actions under the Clean Air Act were an example, later codified. See Am. 

Trucking Ass’n v. U.S. EPA, 175 F.3d 1027, 1041 (D.C. Cir. 1999), rev’d and aff’d in by part 

by Whitman v. Am. Trucking Ass’n, 531 U.S. 457 (2001); see also Mun. of Anchorage v. United 

States, 980 F.2d 1320, 1329 (9th Cir. 1992) (Clean Water Act); W. Neb. Res. Council v. U.S. EPA, 

943 F.2d 867, 871 (8th Cir. 1991). 3 Compare, e.g., Douglas Cnty v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), with Catron Cnty. Bd. 

of Comm’rs, N.M. v. U.S. Fish and Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996). 

comment on the mine expansion. As a result of those comments and the agencies’ 

response, the ultimate action is more protective of the environment than it would 

have been without the process.’’ Greater Yellowstone Coalition v. Larson, 641 F. 

Supp.2d 1120, 1151 (D. Idaho 2009), aff’d 628 F.3d 1143 (9th Cir. 2011). Indeed, 

the National Research Council had earlier noted how it believed ‘‘that the NEPA 

process and its various state equivalents provide the most useful and efficient 

framework for evaluating proposed mining activities.’’ National Research Council, 

supra at 110. 

Third, section 102(b)(1) of H.R. 1937 is likely to create significant problems by 

employing a functional equivalence standard for satisfying NEPA. This section 

seemingly allows a waiver of NEPA when the appropriate Federal agency determines that any Federal agency’s process or any accompanying state process examines six factors drawn from the NEPA process. This presumably adopts the concept 

from some NEPA cases sanctioning avoiding NEPA when the agency’s process is 

functionally equivalent—albeit it is not clear that these six factors, moreover, parallel what an adequate NEPA document would explore. The functional equivalency 

idea first surfaced with respect to certain actions by the Environmental Protection 

Agency (EPA), some of which were incorporated into legislation.2 For these courts, 

EPA’s special role as an environmental agency presumably influenced their decision, 

but even so there often was hesitation surrounding the ‘‘functional equivalence’’ notion. E.g., Merrill v. Thomas, 807 F.2d 776, 781 (9th Cir. 1986). Courts, therefore, 

generally declined to extend the concept beyond EPA, and instead constructed other 

ideas such as lack of discretion, ‘‘displacement,’’ or congressional intent involving decisions designed specifically to protect environmental values.3 And EPA, acting pursuant to specific congressional charges, operates quite differently than land 

managers who must decide how best to manage, given the array of considerations, 

our Nation’s public lands. While many of these decisions may well be problematic, 

they nonetheless collectively underscore the importance of applying NEPA to decisions by agencies other than the EPA or that are not specifically designed by 

Congress as intended to protect environmental values. Indeed, when Congress considered NEPA, a concern by some legislators was whether the NEPA process could 

be entrusted to agencies such as Federal land managers whose mission was not necessarily perceived of at the time as limited to environmental protection. Yet 

Congress chose to trust the agencies, but in doing so relied on NEPA (and invested 

the Council on Environmental Quality [CEQ] with certain responsibilities) and 

shortly thereafter bolstered its decision by adopting section 309 of the Clean Air Act 

affording EPA a role in reviewing environmental impact statements (EIS)—a 

function that H.R. 1937 would obviate (along with possibly the role of CEQ). Consequently, H.R. 1937’s provision for allowing land managing agencies to determine 

whether another process is functionally equivalent with the NEPA process is troubling and ignores Congress’ choices in NEPA as well as the judiciary’s struggle with 

functional equivalence. 

Fourth, sections 102(e)–(g) of the H.R. 1937 would, likewise, not only impair some 

of the goals and objectives of NEPA but also might become unwieldy. This section 

apparently seeks to ensure that project proponents and the appropriate landmanaging agency agree to a structured process for complying with NEPA. For those 

who have been involved in such projects, the idea of outlining how a process might 

unfold for particular activities has some merit. The difficulty, of course, is in how 

to achieve such a result without compromising NEPA and any other statutory processes and objectives. Take, for instance, the concept of determining up front the 

‘‘scope of any’’ NEPA document—if that document is an EIS then such a process 

would conflict with the idea of ‘‘scoping’’ under NEPA, where the interested public 

is able to assist in exploring the range of issues that should be addressed. Similarly, 

while currently the agencies and project proponents do enter into agreements, such 

as for funding of an EIS, those agreements are more limited than what is contemplated by this section and this section could limit public participation in the 

process. Or, section 102(e)(1) would require an agreement on whether and what type 

of NEPA document to prepare, and yet the decision under NEPA is ultimately a 

Federal decision and it is not clear what happens if the project proponent and the 

Federal agency cannot agree even though section 102(e)(1) appears to require an 

23 

agreement (‘‘shall enter into an agreement’’). Also, section 102(e)(6) would require 

an agreement presumably covering consultations under laws other than NEPA, and 

yet is not clear how that would occur pursuant to the Endangered Species Act, the 

National Historic Preservation Act, or other laws. 

Finally, several aspects of H.R. 1937 are potentially vague and could become 

problematic in implementation. To begin with, the definition of ‘‘strategic and critical minerals’’ is not established in the usual fashion for definition-type language 

and what is included may too easily change with little defining contours, depending 

upon broad determinations by an agency about whether a particular mineral is 

‘‘necessary’’ for ‘‘national defense,’’ or ‘‘for the Nation’s energy infrastructure,’’ to 

‘‘support’’ certain industries, or ‘‘for the Nation’s economic security and balance of 

trade.’’ And, it is unclear how an agency will make any such determination, whether 

for rare earths, solid and hard rock minerals, or even for sand and gravel, and then 

how any court would have the ability to review that decision because the language 

does not necessarily the leave the court with any law to apply—thus leaving the decision potentially within the agency’s sole discretion. 

A similar problem could surface with the agency’s determination under section 

102(b)(2). It will be quite difficult, at the outset, for any agency to conclude that 

other processes are functionally equivalent with the six identified factors in section 

102(b), because that would force the agency to examine and interpret the scope of 

other authorities, assess the breadth of those authorities, and conclude that they 

mirror the six factors—all within 90 days. And then the agency would need to document that conclusion in a written finding that, presently, it is not clear whether 

that determination would be a final agency decision immediately capable of judicial 

review (aside from whether the matter would be ripe), but nevertheless would likely 

be reviewable at some point. And how during this process the agency will examine 

‘‘facts’’ in the record before any administrative record is established is unclear. The 

following are a few additional observations: 

• It is not clear whether section 102(f) was intended to refer to section 102(d) 

or 102(e); 

• Section 102(h) would appear to cap financial assurances unnecessarily by 

adopting a potentially unworkable third party standard that may lead to 

litigation; 

• Section 104 on preparing Federal Register notices appears vague and it is not 

clear how it would work in practice, particularly because it would require that 

the notice originate in any office where any meeting has occurred, where— 

and it is not clear whether some or all—documents are housed, or the activity 

has been initiated, and the requirement to publish the notice within ‘‘30 days 

after its initial preparation’’ may similarly be unworkable and not provide 

sufficient time for intra and/or interagency review, and could simply delay 

having the agency prepare in writing any ‘‘initial preparation’’; 

• Section 203 on intervention as of right would unnecessarily trump welldefined principles under F.R.C.P. 24, a right that generally most project 

proponents are afforded currently under the rule; 

• Section 205 limiting prospective relief unnecessarily intrudes into the role of 

the judiciary, under well-defined principles for awarding preliminary and injunctive relief, and could easily cause appellate courts difficulty when reviewing lower court decisions allegedly violating the proscription in section 205; 

and 

• Section 206 limiting recovery of attorney fees is contrary to the notion that 

citizens ought to be rewarded when they prevail in lawsuits that, in particular, protect congressionally decided principles—whether in enforcing 

agency organic statutes, NEPA, or the APA. 

Again, thank you for the opportunity to present my views on H.R. 1937 to the 

subcommittee. I welcome your comments and questions. 

Mr. COOK. Thank you very much. The Chair now recognizes Mr. 

Green. 

24 

STATEMENT OF JEFFERY A. GREEN, PRESIDENT, J.A. GREEN & 

COMPANY, WASHINGTON, DC 

Mr. GREEN. Mr. Chairman, Ranking Member Lowenthal, distinguished members of the committee, thank you for inviting me to 

articulate my thoughts on the National Strategic and Critical 

Minerals Production Act of 2015, a much-needed bill that will help 

improve our Nation’s strategic and critical materials policy. In the 

interest of time, I intend to offer brief oral remarks, and ask that 

my written testimony be incorporated into the record. 

Having dedicated my career to national security issues, specifically supply chain security and defense industrial-based challenges, 

I firmly believe strategic and critical materials are essential to our 

national security. Over the past 5 years, the U.S. Government has 

adopted meaningful strategies to support the substitution and recycling of strategic materials, and undertook several successful trade 

actions. Unfortunately, far too little has been done to support production of these materials, which in my view creates unacceptable 

national security risk. 

The bill under consideration today will help balance the need to 

support production with appropriate oversight and a streamlined 

regulatory regime. This balance, absolutely essential to ensure the 

political viability of the bill, ultimately will help improve our national security environment. Without a doubt, our Nation is increasingly reliant on imports for a growing number of materials 

that are critically important to the basic functionality of U.S. weapons systems, from armor plating to electro-optical targeting, from 

precision-guided munitions and stealth technology to ship drives. 

To see the adverse impact of over-reliance, we need only to look 

at our Nation’s recent experience. In my written testimony, I provide three real-world examples of the nexus between strategic materials and national security. Looking at germanium, tantalum, 

and rare earths—in many of these cases associated with these materials we have seen potentially unreliable foreign nations exert 

near-monopolistic power, using state-owned enterprises to enforce 

export embargoes and to manipulate prices. 

In other cases, materials come from extremely violent regions 

with ongoing structural challenges and problematic due diligence 

schemes. Tantalum, designated a conflict mineral within U.S. law, 

is one such material. 

In all of these cases, import over-reliance, coupled with a supply 

chain interruption, either accidental or deliberate, can create real 

national security risk. In light of this nexus between strategic materials and national security, it only makes sense that the United 

States should take common-sense steps, such as those in the bill 

under consideration. Streamlining the permitting process and reducing bureaucratic red tape is one simple step that can remove a 

self-inflicted wound when it comes to strategic materials. The economics to keep competing with the rest of the world are tough 

enough without self-imposed artificial barriers to entry. 

That said, removing those barriers upstream, such as mine 

permitting, is just a first step. We also need to create an environment that promotes competitiveness at each value-added downstream step of the supply chain. From basic research to recycling, 

opportunities abound to support production of strategic and critical 

25 

materials throughout the supply chain. This bill offers a chance at 

increasing our competitiveness and mitigating this growing national security risk. That requires a bipartisan and bicameral commitment to an approach that recognizes that these issues have key 

implications for our national security. 

Again, I thank the Chairman, Ranking Member Lowenthal, and 

members of this committee, for allowing me to offer my thoughts. 

I stand ready to answer any questions you may have. 

[The prepared statement of Mr. Green follows:] 

PREPARED STATEMENT OF JEFFERY A. GREEN ESQ., PRESIDENT, J.A. GREEN & COMPANY

Chairman Lamborn, Ranking Member Lowenthal, and distinguished members of 

the committee, thank you for inviting me to offer my thoughts on H.R. 1937, the 

National Strategic and Critical Minerals Production Act of 2015. I have spent the 

last two decades in the private sector and government—including on active duty in 

the U.S. Air Force, in the Air Force Reserve, and as a senior professional staff member on the House Armed Services Committee—focusing on national security issues. 

In that time, I’ve observed the nexus between our natural resource policy and 

national security. 

Of particular concern to me is our import reliance on a growing number of strategic and critical materials. These materials often are produced in small quantities 

with opaque markets, and many are controlled by our Nation’s potential adversaries. These strategic and critical materials are vital and enabling components of 

many of our most technologically advanced weapon systems. In recognition of these 

risks, the U.S. Government adopted a strategy to promote mitigation measures such 

as thrifting, substitution, recycling, and the use of trade remedies. However, much 

remains to be done to establish an environment that supports production of these 

materials in an increasingly competitive global market. 

Thus, I endorse the legislative intent underpinning the National Strategic and 

Critical Minerals Production Act of 2015. This bill represents an essential component in a strategic and critical materials policy that balances production and 

regulatory concerns. 

THE LINK BETWEEN STRATEGIC MATERIALS AND NATIONAL SECURITY

As the committee considers the bill, I strongly recommend a focus on the implications of our increasing reliance on imports of strategic and critical materials. This 

import reliance creates a real national security risk. 

Many of these materials, including the case studies that I will explore later in 

this testimony, play a critically important role in the basic functionality of essential 

U.S. weapons systems, as well as a critically important role in the defense industry. 

First, when processed, strategic and critical materials provide unique physical characteristics required by U.S. weapon systems. For example, tungsten is a very hard 

metal that has several commercial applications (e.g., cutting tools); for the same reason, tungsten also is valuable for armor-piercing munitions and armor plate—an 

application it has served since the Second World War. Other materials, such as 

beryllium, have relatively few commercial uses, but military demand in nuclear 

weapons and electro-optical targeting systems is significant. Second, in aggregate, 

the use of strategic and critical materials in U.S. weapons systems allows our 

Nation to equip, train, mobilize, and sustain modern military forces with cuttingedge capabilities. Finally, production of strategic and critical materials naturally 

creates high-paying jobs, spanning the value chain from research and development 

and exploration to primary extraction and end-of-life recycling. This economic 

activity boosts gross domestic product (GDP) and tax revenues to state and local 

governments. 

Challenges associated with accessing reliable supplies of strategic and critical 

materials result in sometimes illogical and counterproductive business decisions. Because commercial supply chains generally do not tolerate high levels of risk, commercial companies often try to economize use of expensive or ‘‘high risk’’ materials 

in their product development efforts, rather than focus on maximizing the potential 

of a materials technology. In other circumstances, internal research and development dollars are diverted from product development toward material substitution. 

As a result, rather than focusing on utilization of the most advanced materials 

26 

available to support innovation, scare research dollars are diverted to support 

substitution that can often be a technological step backward. 

What truly concerns me is the impact that U.S. reliance of importing these materials can have on the defense supply chain. Foreign governments have deliberately 

disrupted supplies of strategic and critical materials in peacetime and wartime with 

remarkable effects, resulting in severe supply restrictions and prohibitive price 

increases. 

For example, embargos are a well-known tool used to deprive a target country of 

strategic and critical materials by prohibiting the export or sale of such materials. 

Select instances involving the United States include the Soviet embargo of manganese and chromium during the Berlin Blockade (1949) and the Chinese embargo 

on rare earth minerals (2010). Preclusive purchasing also is a form of economic warfare whereby one country purchases resources for the purpose of reducing the ability 

of a target country to purchase the same resources. All other variables constant, this 

action increases demand, prices skyrocket, and supply shortages may result. 

REAL-WORLD EXAMPLES OF NATIONAL SECURITY RISKS

We have learned about the national security risks of over-reliance on importing 

strategic and critical materials and supply chain interruptions through experience 

with numerous materials including germanium, tantalum, and rare earths. For example, germanium is a rare metal that occurs in very low concentrations in the 

Earth’s crust. Because of this rarity, germanium is recovered as a byproduct of zinc 

or coal mining. Today, the largest mineral producers of germanium are in China, 

Canada, Russia, and, to a much lesser extent, the United States. However, companies ship much of this germanium mineral concentrate to Russia and China for 

processing into ingots and other high value-added products. The combination of limited availability of germanium concentrates and high prices for germanium has led 

to significant amounts of germanium recycling outside of China and Russia as one 

risk mitigation measure and business opportunity. Nevertheless, at this time these 

programs are unlikely to produce a sufficient amount of recycled material to meet 

our national security needs. 

From a military perspective, the most relevant germanium-related products include fiber optics, infrared optics, and solar cells. Nearly every surface vessel and 

fixed- and rotary-wing aircraft in the U.S. arsenal has large, forward-looking infrared systems or search-and-track systems. Many aircraft also carry ‘‘heat-seeking’’ 

missiles, which contain germanium lenses. In addition, many small arms and light 

weapons sights include infrared optics, and U.S. military satellites use highly efficient germanium-based solar cells. These military applications formerly accounted 

for the vast majority of the U.S. market, but now infrared optics and solar products 

represent about half of U.S. demand. 

The risks associated with the germanium market are two-fold. First, there is generally limited primary production of germanium, and to the extent that it occurs, 

much of that material is redirected to smelters in China and Russia. A great deal 

of the secondary materials market (i.e., scrap) meets a similar fate because: (1) it 

is cheaper to conduct these activities in China and Russia and (2) Chinese and 

Russian companies bid very aggressively for such material when it becomes available. Second, even though companies based in the United States and NATO 

countries have advantages in the high value-added manufacturing of germanium 

components, their competition in Russia and China consists of state-owned enterprises that simultaneously receive millions of dollars per year in price subsidies and 

other government grants to support downstream research and development. As 

these companies’ product lines mature, it is likely that much of China’s and Russia’s 

current semi-finished germanium exports will be consumed domestically. 

Tantalum is a very hard metal that is highly resistant to corrosion and deformation at high temperatures. Like many other metals, tantalum can be extracted by 

typical industrial methods, such as underground or open pit mining. However, because of tantalum’s natural hardness, artisanal mines are very common. At some 

deposits, the gangue material around tantalum-bearing minerals has eroded over 

the past millennia, leaving a relatively high-grade concentrate at surface. Artisanal 

collection and beneficiation of the latter is typical of Central African and some 

South American tantalum mines. 

In addition to the characteristics noted above, tantalum also is an excellent conductor of electricity, and nearly 75 percent of tantalum demand is focused on electronic materials and capacitors. As such, tantalum capacitors are one of the key 

building blocks of nearly every piece of high-tech equipment operated by U.S. armed 

forces. Separate from electronics, another important demand segment for tantalum 

27 

is the turbine engine market, particularly for single-crystal nickel superalloys. In 

third-generation nickel superalloys, tantalum content ranges from about 6 percent 

to 8 percent. Smaller military applications for tantalum include explosively formed 

projectiles in anti-tank missiles. 

The principal risk associated with the tantalum supply chain lies at the furthest 

upstream portions of the supply chain, and under the Dodd-Frank Wall Street 

Reform and Consumer Protection Act (P.L. 111–203), tantalum is a conflict mineral. 

According to U.S. Geological Survey statistics, more than two-thirds of global tantalum production emanates from the ‘‘covered countries’’, which include the 

Democratic Republic of Congo and those countries that border it. Though there are 

many public and private sector initiatives aimed at alleviating this problem, extreme violence in the region and ongoing structural problems within upstream due 

diligence schemes remain highly problematic and may result in some future supply 

disruption. 

Rare earth materials consist of 17 elements (yttrium, scandium, and the lanthanide series). With regard to U.S. national defense, rare earth elements are a 

force multiplier. The aerospace industry uses yttrium for the investment casting of 

titanium parts, and yttrium-based ceramics act as thermal barrier coatings in jet 

engines. Yttrium, neodymium, and dysprosium are additives to magnesium alloys 

that compose the transmission and gearbox casings for fixed- and rotary-wing 

aircraft. When one of these aircraft elects to place a munition on a target, the fin 

actuators and seeker head of that munition likely will be powered by neodymiumiron-boron or samarium-cobalt magnets. If that munition is laser-guided, a target 

designator using a neodymium-doped yttrium-aluminum garnet may be used. If that 

munition uses radar guidance, then the microwave-sensing devices incorporated in 

that munition likely will be powered by samarium-cobalt magnets. 

The primary concern associated with the rare earth supply chain is the near complete dominance of China at every stage of the value chain. The Chinese rare earth 

industry is in the midst of consolidation into six large, state-owned enterprises, 

which receive considerable direct and indirect government subsidies and benefits 

that, like germanium, are targeted at downstream, valued-added manufacturing. 

Moreover, prolonged inactivity within the U.S. industrial base already has led to a 

massive intellectual capital deficit; even now there is a very limited pool of experienced rare earth plant operators and engineers outside of China. Though the use 

of rare earths in defense applications is relatively minor in volume, their criticality 

to the functionality of many key weapons technologies is indisputable, and the dominance of Chinese supply remains virtually unchanged nearly 5 years after the 2010 

embargo. 

CONCLUSION

These examples—germanium, tantalum, and rare earths—illustrate a continuum 

of risk to the defense industrial base as a result of strategic and critical material 

supply chains. In the case of tantalum, the central risk is isolated at the mine site 

and the trade routes along which those materials flow into the global market. For 

germanium, upstream mining risk is showing signs of creeping into downstream, 

value-added manufacturing segments. In the rare earth sector though, we continue 

to witness the complete dominance by China of an enabling technology for many 

weapon systems. 

To date, the U.S. Government has initiated a number of programs that address 

these risks focused on increased due diligence, trade enforcement, research and development grants for substitution and recycling, optimized material use, and a dogged belief that the free market will diversify the supply chain. As the rare earth 

market shows, the global market for strategic and critical materials is highly competitive, with often insurmountable barriers to entry. Therefore, a myopic and 

unshakeable belief in market solutions ignores global reality and national security 

risk. What has been lacking in our approach to these challenges is any encouragement of production of strategic and critical materials in the United States. 

The legislation introduced by Congressman Amodei provides common-sense steps 

that will allow the United States to streamline the permitting process and reduce 

bureaucratic red tape. The economics of competing with the rest of the world in 

strategic and critical materials is difficult enough without self-imposing barriers to 

entry. Removing those barriers at points that are upstream in the value chain is 

an excellent first step. 

It is, however, just a first step. I encourage the members of this committee to 

evaluate the definition of strategic and critical materials, beginning the necessary 

work that we, as a country, need to undertake to create a framework for focusing 

28 

national-level activities and promoting true competitiveness at each value-added 

downstream segment of the supply chain. Only then will our Nation have the opportunity to increase our competitiveness and mitigate our growing national security 

risks associated with import over-reliance. 

Mr. COOK. Thank you very much. The Ranking Member, Mr. 

Lowenthal, has been magnanimous enough—you like that word? 

You gave it to me. I can’t spell it, but I can pronounce it, I think— 

to allow Mr. Labrador—he has to run—for some questions. 

You are recognized. 

Mr. LABRADOR. Thank you, Mr. Chairman. Thank you, Mr. 

Lowenthal. 

Mr. Russell, again, thanks for being here today. Can you please 

explain how Hecla’s longstanding experience in northern Idaho and 

with the other mines might be helpful in permitting the Rock 

Creek mine in Montana? 

Mr. RUSSELL. Mr. Chairman, Congressman, Hecla—I think there 

are two opportunities there. First, our Lucky Friday mine in north 

Idaho is a 70-year-old mine. And what that has done has made 

Hecla an integral part of the community of Mullan and Wallace. 

And we would bring that sort of perspective to Rock Creek, which 

has the potential to be a 30- or 40-year project. 

More importantly I think, is our Greens Creek project, located in 

southeast Alaska. Greens Creek is located in Admiralty Island. It 

is partially located within a national monument, adjacent to a wilderness, on national forest and private lands. The mine has been 

operating for 27 years. Admiralty Island is home to more brown 

bears than anywhere else in the Lower 48, and the mine and the 

bears—same species as the grizzlies in western Montana—have 

operated successfully together for 27 years. The island is also home 

to five species of Pacific salmon, and the mine has operated without 

significant impact to the fish. So the issues that we have dealt with 

in Alaska on bears and fish and sensitive environments are the 

same issues that we would deal with in Montana, and we would 

bring those lessons learned and those experiences to successfully 

operate the Rock Creek project. 

Mr. LABRADOR. Excellent, thank you. Do the other countries that 

you have worked in to permit mines, do they have high environmental standards? 

Mr. RUSSELL. Mr. Chairman, Representative Labrador, most of 

the countries that I have worked in do, in fact, have very similar 

environmental requirements to the United States. As an environmental professional, I feel good about that. So the standards that 

we have had to meet internationally—Australia, Chili, New 

Zealand, Argentina—are essentially the same. 

What I have seen in those countries is that their permitting process distinguishes the environmental compliance. What you do on 

the ground—complying with air, water, solid waste requirements— 

those are almost the same as the United States. Their permitting 

process is much more predictable. You can get through that process 

in a 2- to 3-year period. The agencies, the public process, all goes 

through that process in a much, much shorter time. So those countries are more effects-driven—what is the effect of this? The United 

29 

States tends to be more on a process, and we get bogged down on 

the process rather than really what the true effects are. 

Mr. LABRADOR. So their high standards are not delaying the 

permits. 

Mr. RUSSELL. They are not, no. 

Mr. LABRADOR. I lived in Chili for 2 years, and I actually happened to live in the city of Rancagua for 5 months, which is where 

the biggest copper mine in the world seems to be. I don’t know if 

it still is the biggest copper mine in the world. Tell me a little bit 

about Chili. My experience with the Chilean government is that 

they worked pretty swiftly through these permits, and I understand that they continue to do that. Is that correct? 

Mr. RUSSELL. Yes, Mr. Chairman, Representative, yes. My experience in Chili—the local region in Chili, which would be like the 

state or province here, is the primary permitting agency or authority. Then there is also the national, which is somewhat similar to 

Canada. The national will accept or review, or not accept, the provincial permitting process and review, but they are involved. Typically, that local province or region takes the lead. Yet that process 

is done very predictably, and it is in a very strong relationship between the applicant and the government, and then the public being 

a part of that process, so—— 

Mr. LABRADOR. The Chileans don’t really care about their cities 

and their environment, right, because they don’t have any kind of 

tourism, they don’t believe in environmental tourism, isn’t that 

what we seem to hear all the time, that we need to make things 

longer, because we actually care about the environment? It seems 

to me the people of Chili rely on tourism, especially environmental 

tourism, quite a bit. Isn’t that true? 

Mr. RUSSELL. That is absolutely true, and we should not confuse 

the length of the process to the rigor of the analysis. I think Chili 

is an example where it is a rigorous process, it is just done in a 

more timely fashion. 

Mr. LABRADOR. In your testimony you mentioned that the fear of 

litigation can lead to agency staff addressing every issue as if it 

were potentially significant, instead of focusing on the truly significant issues. Has agency staff specifically mentioned that fear of litigation to you, and does this fear of litigation lead them to do better 

analysis of the issues? 

Mr. RUSSELL. Mr. Chairman, Representative, yes. In my experience, I have heard repeatedly that we have to make these 

documents legally bulletproof. 

So, under NEPA, there is a requirement that the agencies look 

at issues that have a potential significant impact on the environment, and that those get analyzed. I think, in other countries, that 

is what they do. Here in the United States, because of the fear of 

any possible stumble in the legal procedure, the agencies then say, 

‘‘We have to look at these issues in more depth, and more depth, 

in an effort to try to build our case, so that when it does go to 

court, we can defend it.’’ And that is a major cause to permitting 

delays. 

Mr. LABRADOR. Thank you very much; I yield back my time. 

Mr. COOK. Thank you, Mr. Labrador. 

Mr. Lowenthal. 

30 

Dr. LOWENTHAL. Thank you, Mr. Chair. And I enjoy calling you 

Mr. Chair. 

Mr. Kalen, the Hard Rock Mining Reform and Reclamation Act 

that Ranking Member Grijalva and I introduced earlier this year 

would make a number of reforms to the Mining Law of 1872, including putting a royalty on hard rock production from public 

lands, permanently ending the system that gives away public lands 

for less than $5 an acre, establishing strong reclamation and bonding requirements, giving clear authority to Federal land managers 

to reject a proposed mine if the negative impact of that mine would 

be too severe, and more. 

Do you think that these reforms would be a positive step in the 

right direction? 

Mr. KALEN. Mr. Chairman, Representative, yes, I do. If we—— 

Dr. LOWENTHAL. Is your microphone on? Bring it closer to 

yourself, Mr. Kalen. 

Mr. KALEN. Mr. Chairman, Mr. Representative, sorry. Is this 

better? 

Dr. LOWENTHAL. Yes, much better. 

Mr. KALEN. Sorry. Yes, I do. I think that, at least since the early 

part of the 1900s, we have engaged in re-looking at how we deal 

with our public lands and the management of our public lands. So 

beginning in the last century, we started to look at things like leasing, and identifying lands right up front for what kind of valuable 

resources—whether it is recreation, whether it is oil and gas, 

whether it is coal, or whether it might be some other kind of 

potash. 

So what we have done historically is, in other programs, engaged 

in looking at bidding for those, and then engaged in leasing with 

royalties. So the hardrock mining program is anachronistic. It 

doesn’t really fit with any of the modern programs. So I think that, 

without a doubt, it is in need of reform. 

Dr. LOWENTHAL. Thank you. I want to talk now about the definition of critical minerals. First I want to go back to something that 

Chairman Lamborn mentioned in his opening statement. He mentioned an answer from last year’s witness in a hearing that we had 

last July, and a question that I had asked Mr. Eric Peterson from 

the Center for Advanced Energy Studies at the Idaho National 

Laboratory. In his opening statement, he implied that the witness 

said that lead is a critical mineral. 

We asked Mr. Peterson to clarify that response. His written response back made it very clear—he said, ‘‘Due to its rather large 

supply with multiple sources, I do not see lead as being a critical 

element.’’ And, remember in my opening statement, what I said 

was that the definition that we use for critical minerals, what is 

critical, is based upon the National Research Council, the U.S. 

Geologic Survey, the Department of Energy, all have definitions, 

and they all say they have to have three conditions: they have to 

be essential, there have to be poor substitutes to be considered critical, and there has to be a risk to supply chain disruptions, in 

terms of procuring these minerals. And it has to meet all three. 

In the legislation that we have before us, it changes that to the 

minerals that are necessary for national defense, for energy infrastructure, to support domestic manufacturing, agriculture, housing, 

31 

telecommunications, health care, and transportation infrastructure. 

That is the definition now. 

I ask the members of the panel, is there any mineral that 

doesn’t—given this new definition, that is not a critical mineral? 

And, can you tell me what mineral does not meet these—that we 

are giving this expedited process to, because they are critical? It 

seems to me that every single mineral out there now meets the definition. Can you tell me what doesn’t? What would not meet—I am 

just asking you. What would not meet the definition of a critical 

mineral in this legislation? 

Mr. FELLOWS. OK. So, as a mineral economist, I spend an awful 

lot of my time looking at that balance between supply and demand 

for a whole range of commodities. And you are absolutely correct 

in that, in many instances, supply or potential supply is currently 

sufficient to meet demand. But what I would point out is that criticality, or the degree of criticality, changes over time. Right now, for 

some minerals, the degree of criticality is very low. For some minerals it is indisputably very high. That—— 

Dr. LOWENTHAL. Again, I am running out of time, and I just 

want to ask you. Name the minerals that do not meet this definition of critical mineral. Now, given the new definition that is being 

proposed of what is a critical element that we are going to give this 

expedited—what doesn’t meet the definition? 

Mr. FELLOWS. From the point of view of abundant supply, you 

are quite correct that something like sand and gravel is abundant. 

So, from that point of view, criticality would be—— 

Dr. LOWENTHAL. Thank you, Mr. Chair. I will submit my 

questions. 

Mr. COOK. Thank you very much. 

Mr. Zinke. 

Mr. ZINKE. Thank you, Mr. Chair. As the lone Congressman from 

Montana, I also am a former geologist. First of all, I commend you 

for your investment in Montana. I have some experience, because 

I grew up in Montana, which is not very far. And I can tell you, 

in Sanders County and Lincoln County, it is dire. The unemployment rate is far above the national average, somewhere around 7.5 

percent. Montana used to be known as the Treasure State, and now 

most people refer to it as the Big Sky State. It is hard to feed a 

family on sky. 

I commend you for this process, the process in my mind when— 

during your testimony, you were talking about timelines. Well, I 

graduated high school in 1980, when the process first began. And 

your reference to 2001 was when 9/11 occurred. I spent 23 years 

as a Navy SEAL, and I remember 9/11. Yet we have been going 

through a process, and as a country, we have become processorientated and not results-driven. When a process is years and 

years and years without end, as a business model, how can one invest in our future? Because it has become so uncertain that it will 

ever have a path to get there. 

Many of you—I would say there is no one in this room that has 

been to the Yaak, perhaps, other than you. The Yaak was the last 

place in this country to receive power. And the Yaak is a distant 

place in Montana. Matter of fact, there is a TV show that looks at 

isolated places in America, and the Yaak is one of them. Yet there 

32 

isn’t a job to be found in the sea of forest because our forest policy 

has not allowed trees to be cut, and a vast array of natural 

resources in a place where jobs are desperately needed, and the 

process has been shown over and over to be reasonable, environmentally prudent, and yet you cannot pull a permit. 

So, how long, Mr. Russell, without this bill, do you see an 

estimate of when a permit would be given? 

Mr. RUSSELL. Mr. Chairman, Representative Zinke, appreciate 

your question. The long permitting timeline for the Rock Creek 

project is especially frustrating, when just 15 miles away is the 

Troy mine that has been there for 30 years, has had no significant 

impact on the environment, and is adjacent to the proposed 

Scotchman’s Peak new wilderness area. Obviously, mining, environmental values, recreation, and wilderness values can co-exist. 

The Rock Creek project has been 5 years since the supplemental 

EIS was started. The Forest Service will not give us an updated 

timeline for when that project would see a draft. Hecla has come 

into that project with a long-term view. We are a 124-year-old 

company. We know it is going to take time. We are not happy that 

it is going to take time, but we know that it will. We have an 

approach of patience and persistence to push that project forward. 

I think if we could get it done in 10 or 15 years under the current 

system, we would be fortunate, to answer your question 

specifically. 

Mr. ZINKE. So 10 to 12 years is where you think we would be? 

I am looking at—let’s see, that would make a process of 40 years, 

from 1980 to when we expected completion on this? 

I support this bill because I think we have lost our mind as a 

country, when the amount of litigation, and frivolous litigation, and 

stacks of it have become where we can’t be prosperous any more. 

And I commend you for your level of investment, and we will do 

whatever we can, from the delegation of Montana. I speak with one 

voice from Montana. 

[Laughter.] 

Mr. ZINKE. But thank you, Mr. Chairman. 

Mr. COOK. Thank you very much. The rules of the committee are 

such that the next senior Member speaks—even though Mr. Hardy 

came in earlier, and if you want to be magnanimous and yield 

time, I will leave that up to you. I am going to play Pontius Pilate 

and recognize Mr. Hice. 

Dr. HICE. Thank you, Mr. Chairman. I appreciate this hearing, 

as well. And each of the panelists, thank you for being here. 

Mr. Green, let me ask you just a couple of real quick questions. 

What do you see are the potential risks to our national security, 

if we lose the strategic and critical materials? 

Mr. GREEN. Mr. Hice, thank you for the question. I think it is 

best answered in two parts, both a near-term risk and a long-term 

risk. And I think, as a nation, we need to be very conscious of that. 

In the near term, if we look at the rare earth example back in 

2010, we saw what that means: a supply disruption via the actions 

of a near-peer adversary, disruption in the supply chain, quick reactions in the market. But, ultimately, that settled out. So there 

are folks, for example in the Department of Defense, who don’t feel 

that that was a crisis because supply chains and delivery in my 

33 

world of weapons systems were never affected. But the potential 

was there. So some in the Administration will say, ‘‘So there is 

really no issue here.’’ 

But I think we have to be more conscious in thinking about the 

longer term. What I mean by that is that if you lose access to 

things at the furthest upstream point in the process—so, at the 

mine as this committee looks at it—we tend to see, in markets such 

as rares, the collocation of the downstream products closer to the 

source of supply. 

So, in rare earths, you have seen migration of metal producers 

to the oxide markets in China, so they can gain access to that material. Then you have seen the downstream alloy producers chase 

the metal. Eventually, the magnet producers chase the alloy. And 

that creates a real risk, where the next steps—which are viable, 

and we are seeing them now—are eventually assemblies, components, and ultimately, end items. 

I think that is a horrible long-term prospect for our manufacturing base, and that goes right back to the intent of this bill, 

which is making sure we have access to that first step in the supply chain. 

Dr. HICE. Well, I thank you for that. I take it you are familiar 

with the RAND Report that came out a couple of years ago. 

One of the alarming things in that report was China, as you just 

mentioned, and how their market share of global production of critical materials has grown dramatically over the past couple of 

decades, from a strong position to an overwhelming position of 

dominance. 

Do you think that position of China, of dominance, poses a risk 

to the United States, be it national security or economic security? 

Mr. GREEN. Mr. Hice, absolutely. I would liken this to a disconnect between our policy as a Nation, as it relates to strategic 

materials, and the ability of the market to react to take advantage 

of opportunity. 

So, again, using the rare earth example, there was a time and 

a period where prices skyrocketed. You saw 300 to 400 companies 

try to enter this space in a very small window. Only one company 

in the United States was able to capitalize on that opportunity in 

the market, and that was a previously permitted mine. 

We have since seen a decrease in the price of those materials, 

and that economic window has closed in a 2- to 3-year period. So 

we really never had a chance to try to challenge China’s 

dominance. 

Dr. HICE. OK, Mr. Chairman, I would like unanimous consent to 

enter the RAND study into the record. 

[No response.] 

Mr. COOK. Without objection, so ordered. 

Dr. HICE. Thank you, sir. 

Mr. Russell, let me go to you real quickly. You have been involved in permitting for a long time, 30 years or so. How many different types of permits are required for a typical mining project? 

Mr. RUSSELL. Mr. Chairman, Representative, a typical mine will 

have 40 or more permits. Our Greens Creek mine has 85 different 

permits, approvals, authorizations that we have to comply with. 

34 

Dr. HICE. All right. Forty permits is a lot of hoops to jump 

through. I am assuming that that process has changed over the 

years since you have been involved. 

Mr. RUSSELL. Yes, certainly it has. If you kind of go back to 

when I started this, in the first early days of NEPA, the guidance 

from CEQ would be an environmental assessment that would take 

6 months and be about a 15-page document. An environmental impact statement would be 18 months and about 150 pages. The—— 

Dr. HICE. Let me stop you, if I can, right there. I get the picture. 

A lot of changes have taken place. But, besides the permitting, 

there are some other issues facing the delays and all the problems. 

What are some of the other issues facing the industry? 

Mr. RUSSELL. Mr. Chairman, certainly key to development of 

mining in the United States is access to the ground. Mineral withdrawals on the sage grouse, over 10 million acres are being proposed to be withdrawn from mineral entry. Three million acres in 

my state of Idaho—and the state of Idaho has 10,000 acres that 

have been affected by mining—yet 3 million acres are proposed to 

be withdrawn. Yet fire is the main culprit of risk to habitat for 

sage grouse. 

The second would be the ever-moving goal post of regulatory requirements. The rules are always changing, and it is difficult to hit 

a moving target. 

Dr. HICE. Thank you, Mr. Chairman. 

Mr. COOK. Mr. Hardy. 

Mr. HARDY. Thank you, Mr. Chairman. Mr. Fellows, Mr. Russell, 

I have a mine in my district—a number of mines, actually—but I 

have a mine called Round Mountain. Are any of you aware of that 

place? Round Mountain has been working on a permit that is still 

within the envelope that it was permitted almost 80 years ago. It 

is not going outside its boundaries, it is just trying to expand the 

hole that it is working on. They have been working for over 2 years 

to obtain a permit. This is due to start the closure process of this 

mine in 2018. Without the expansion of this, that is close to 2,900 

jobs it would cost our state, some of the highest-paying jobs 

anywhere. 

Can anybody give me an idea why it would take so long to do 

an environmental assessment within the same area that has already been assessed for over 80 years, and why it has taken the 

process—anybody care to tell me why that takes so long? 

Mr. FELLOWS. I genuinely struggle to see, from a purely technical 

point of view, how it could take that long. There has to be something procedural going on there. 

Mr. HARDY. Engineering has been done, everything has been 

done, the study has been done, been submitted. And it is still within the same envelope. But because of the environmental process, 

we continue to have to fight issues like these studies. 

Mr. Russell, we talk about the fact that America’s significant 

mineral resources currently attract 7 percent of the worldwide 

exploration dollars, as compared to 20 percent back in the 1990s. 

Given our wealth of materials and minerals, would it be likely that 

we might change that back to that 20 percent, which would change 

the trade deficit we have in this country today if those were 

35 

accessible, were expedient in the process of doing that, and would 

that attract more of that exploration? 

Mr. RUSSELL. Mr. Chairman, Representative, the short answer is 

yes. If there was a more reliable and predictable process that would 

encourage and instill confidence to the business decisions to come 

to the United States and to be able to say, ‘‘Through this—we know 

that we can get through a rigorous process, but once we have that, 

that the rule of law will hold in the United States, and that we can 

rely on our access and our rights of tenure,’’ I believe that the answer is yes. 

But because it takes so long, there are other countries where 

projects can go to be done and develop quicker, and the return on 

investment is much, much quicker. I think the answer is yes, if we 

can get through this issue of long, long times to develop a permit 

or mine. 

Mr. HARDY. Mr. Fellows, do you believe that there is access to, 

or are there minerals out there that are of high-grade quality that 

could be gone after if the process was a little quicker, that would 

solve some of the issues? 

Mr. FELLOWS. Absolutely. One of the key findings from our study 

is that right now the United States receives around 7 percent of 

global exploration expenditure, which was actually a surprisingly 

high figure to me, given how difficult it is to actually advance 

projects through the development pipeline here. 

What that tells you, I believe, is that geologists, mining companies, explorers, still regard this country as being highly prospective 

for a whole range of minerals. So, the issue really is not the geological availability of these things here in the United States, it is 

really a case of getting them developed. 

Mr. HARDY. Thank you. 

Mr. Green, in your comments earlier we talked about the Federal 

Government. Is it not its responsibility to make sure of the safety 

and security of its citizens within its borders and outside its 

borders? Isn’t it also maybe responsible for the economic security 

of individuals? 

Mr. GREEN. I am sorry, I couldn’t agree more, and I think there 

is a close nexus between that. Having studied the industrial base 

and supply chain for many years, a bill such as this, creating a 

positive economic—that environment just has a flowdown effect 

through the supply chain. And I have worked with many industries 

who say, ‘‘It is the business climate in the United States, it is either the inability to get a permit, the inability to find downstream 

customers that are preventing us from doing the production here, 

so we are simply going to have to look to other places.’’ 

So I think the two, economic and national security, are 

inextricably linked. 

Mr. HARDY. Thank you. I would just like to make a little statement, real quick. I would like to concur with my colleague there, 

Ranking Member Lowenthal, that these are all precious metals. 

Gravels, which I work with—there has to be a certain density in 

order for a quality gravel to work on a highway or in concrete. 

Wyoming itself has one of the hardest materials, PR&R use it on 

their tracks all the way across their system. They haul it for many 

miles because it is one of the most hard or dense products, in order 

36 

to keep the safety of our citizens through that process. So, thank 

you. 

Mr. COOK. Thank you. The Ranking Member has a short 

statement. 

Dr. LOWENTHAL. I just want to say that I found this discussion 

fascinating, about some of the issues around mining in the United 

States, but this is not germane to the topic of this bill. This bill 

was about minerals that are critical and strategic to the United 

States, and how they would get an expedited process. What this 

bill does is eviscerate that definition, and says that all minerals 

now meet that definition, which I think is really not appropriate. 

We are talking about those that really are at risk, that put our 

supply chain at risk. 

And with that, I again reiterate my opposition to H.R. 1937. 

Mr. COOK. Thank you very much. Before I wrap it up, I am a 

co-sponsor to this bill. Obviously, I have a different viewpoint. I am 

not going to go into my questions, or anything like that. 

Right now I want to thank the panel. Obviously, I was trying to 

move things along. They have called votes. I appreciate your professionalism and your patience in being here with us. It was a 

great, great hearing, at least from my standpoint. 

This meeting is now adjourned. 

[Whereupon, at 12:16 p.m., the subcommittee was adjourned.] 

[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE

COMMITTEE’S OFFICIAL FILES]

— A Study by the Rand Corporation, ‘‘Critical Minerals: Present 

Danger to U.S. Manufacturing’’ 

— A Study by SNL Metals & Mining prepared for The National 

Mining Association, ‘‘Permitting, Economic Value and Mining 

in the United States’’ 

— Statement in opposition to H.R. 1937 from various 

environmental groups 

— Statement in support of H.R. 1937 from the Interstate Mining 

Compact Commission (IMCC) 

— Statement in opposition to the Bill in its current form from the 

Honorable Joseph Holley of the Battle Mountain Band of the 

Te-Moak Tribe of Western Shoshone Indians 

Æ