New Mexico's Non-Coal Reclamation Law Applies to Conventional Uranium Mining After All

October 31, 2002

Summary
We previously reported that a New Mexico district court had held uranium mining was exempt from New Mexico's non-coal reclamation law. See "Retroactive Application of Reclamation Law Upheld, But Not Applied to Uranium Mines," (2000). In a September 9, 2002 decision, however, the New Mexico Court of Appeals reversed, holding that conventional uranium mining, at least, is covered by the New Mexico Mining Act. See New Mexico Mining Commission, et al. v. United Nuclear Corporation, Ct. App. Docket Nos. 21,288 and 21,290 (N.M. App. 2002) (Slip Op.). On November 4, 2002, the New Mexico Supreme Court denied United Nuclear Corporation's further attempt to appeal.

We previously reported that a New Mexico district court had held uranium mining was exempt from New Mexico's non-coal reclamation law. See "Retroactive Application of Reclamation Law Upheld, But Not Applied to Uranium Mines," (2000). In a September 9, 2002 decision, however, the New Mexico Court of Appeals reversed, holding that conventional uranium mining, at least, is covered by the New Mexico Mining Act. See New Mexico Mining Commission, et al. v. United Nuclear Corporation, Ct. App. Docket Nos. 21,288 and 21,290 (N.M. App. 2002) (Slip Op.). On November 4, 2002, the New Mexico Supreme Court denied United Nuclear Corporation's further attempt to appeal.

In the district court case reported previously, United Nuclear had succeeded in arguing that the definition of "mineral" excluded uranium mining by excepting "commodities. . .that are regulated by the nuclear regulatory commission." See NMSA 1978, § 69-36-3(G). Accordingly, notices of violation that had been issued by the Mining and Minerals Division in connection with three of United Nuclear's uranium mines, and which had been upheld by the Mining Commission, were vacated by the district court.

In reversing, the Court of Appeals reviewed the Nuclear Regulatory Commission's jurisdiction and the jurisdiction of its predecessor, the Atomic Energy Commission, under the Atomic Energy Act. The court determined that, since these agencies never regulated conventional uranium mining per se, the Mining Act exclusion should not be interpreted as excluding United Nuclear's operations. Slip Op. at 3-5 (citing 5 American Law of Mining § 177.02[1] (2d ed. Cheryl Outerbridge, Editor-in-Chief)).

Importantly, the court-in dicta -drew a key distinction between conventional uranium mining, such as the underground and open pit mining engaged in by United Nuclear and others during the 1950s to early 1980s uranium boom in New Mexico, and in situ uranium mining operations. The court reasoned that since in situ operations combine extraction with actual processing of the ore, federal licensing may be necessary to conduct in situ operations. Slip Op. at 4 n. 2. Accordingly, the court's dicta essentially foreshadows that in situ operations would be deemed excluded from the scope of the New Mexico Mining Act where a federal license for the operation is required from the Nuclear Regulatory Commission.