Mining

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Overview

Modrall Sperling is privileged to represent a broad range of mining enterprises from some of the world's most substantial multi-national resources development companies and mid- and small-sized mining and exploration concerns. Although primarily focused on New Mexico activities, our services to mining industry clients have extended to other parts of the United States and also address international issues. The challenges faced by participants in this heavily regulated and scrutinized industry are complex and often daunting. Modrall Sperling's attorneys, drawing on their diverse set of skills and depth of experiences, working closely with client representatives and often teaming with a wide range of technical consultants, provide effective representation in court, before agencies, in public hearings, and in dispute resolution forums, and offer thoughtful insights and creative solutions to assist clients in meeting their business, contractual, permitting, environmental compliance, litigation and employment challenges.

Modrall Sperling's Lawyers Serving Mining Clients

Larry Ausherman and Stuart Butzier co-chair our mining industry practice group. Our diverse team of attorneys serving mining clients includes:

Attorneys

Experience

Representative Matters

While all cases differ given the particular facts and circumstances, and past success is not an indication of future success, some examples of our work include:

  • Tyrone Copper Mine Closure Permit Adjudication and Settlement
    Phoenix-based Freeport McMoRan Copper & Gold Corporation faced untenable closure expectations including significant reclamation bond requirements imposed by the New Mexico Environment Department based on the Department's interpretation of the ground water program under the Water Quality Act. We represented the mine in complex adjudicatory hearings before the Department and its oversight agency, the Water Quality Control Commission, and ultimately obtained a ruling by the New Mexico Court of Appeals that the Department was arbitrary and capricious in requiring that ground water quality standards be met throughout the entire mine permit area.  On remand, we represented the company with the help of technical experts in a 21-day hearing before the Commission and subsequently (along with co-counsel) negotiated with the Department and an interested NGO in achieving a complex, multi-year settlement involving both Water Quality and Mining Act issues allowing for the dismissal of a second appeal in the Court of Appeals.
  • Burrell Resources Group Garnet Project
    Santa Fe-based Burrell Resources Group is pursuing an industrial-grade garnet deposit in the Oro Grande Mining District within the Jarilla Mountains in Otero County, New Mexico. We assisted Burrell with agreements and due diligence in connection with its acquisition of mining assets, and have provided comprehensive organizational, transactional, public lands, permitting, water and environmental representation in connection with the ongoing project.
  • Resources Capital Funds Private Equity Investments
    Denver based RCF utilized Modrall Sperling's lawyers to conduct comprehensive due diligence services in connection with ongoing mining projects in New Mexico and Michigan. The services included title, permitting, Indian lands, public lands and environmental reviews and advice.
  • Navajo Mine Operations and Permitting Matters
    BHP Navajo Coal Company (BNCC), a subsidiary of Melbourne-based BHP Billiton, sought to extend its coal mine operations under a mining lease of tribal trust lands on the Navajo Reservation.  We represent BNCC in a wide range of permitting and environmental compliance matters including NEPA, and cultural resources compliance, Endangered Species Act compliance, Clean Water Act, Surface Mining Control and Reclamation Act.  This representation also included negotiation of agreements with the Navajo Nation members who hold traditional use rights in the area.
  • Goldcorp and Minera Peñasquito Federal Litigation
    Vancouver-based Goldcorp and its silver mining subsidiary operating near Zacatecas, Mexico, Minera Peñasquito, entered into a multi-million dollar international contract for the purchase of  large mining equipment tires during a period of limited international rubber and tire supply relative to demand.  When the seller failed to deliver the tires or return advances, we initiated litigation in the United States District Court for the District of New Mexico and ultimately obtained judgments in favor of the company and a stipulated settlement requiring installment payments.
  • Peabody Mine Impoundment and Triennial Review Proceedings
    St. Louis-based Peabody Energy Company and its coal mining subsidiaries with operations in New Mexico faced a directive from the Environment Department to the Mining and Minerals Division suggesting imposition of certain surface water quality standards based on hypothetical aquatic life and human recreational uses of man-made mine impoundments that are slated for a post-mine land use of livestock watering.  We initially challenged the directive through an administrative appeal and sought to negotiate a resolution of the issues with the Department and an interested NGO, then pursued a regulatory change by the Water Quality Control Commission under a Clean Water Act-mandated Triennial Review proceeding leading to helpful findings of fact that set the stage favorably for further negotiations between Peabody and the Department.
  • Barrick Operations In and Near Crescent Valley, Nevada
    Barrick Cortez, Inc., a subsidiary of Barrick Gold Corporation, is pursuing present operations and proposed exploration in and near Crescent Valley, Nevada.  We are providing counsel regarding tribal consultation and cultural resources management compliance relating to mineral development and exploration, including consideration of issues under the National Historic Preservation Act, the Native American Graves Protection and Repatriation Act, and related statutes, regulations and Executive Orders.
  • Mount Taylor Mine Environmental and Reclamation Permitting
    California-based Rio Grande Resources Corporation (RGRC) is in the early stages of preparing for further uranium mining operations at Mount Taylor Mine near Grants, New Mexico. The mine, which was one of the largest producers of uranium worldwide from the 1970s into the 1990s, has been on standby since approximately 1993 and is now poised to take advantage of projected market conditions for uranium. In addition to our decades-old representation of the mine, more recently we are assisting RGRC in proceedings to renew a Water Quality Act discharge permit for the mine and return the mine to active status.
  • Newmont Regulatory Issues in New Mexico
    Denver-based Newmont Mining Company in the 1990s acquired a decades-old mining client that was based in Albuquerque, Santa Fe Pacific Gold Corporation (SFPG), following consolidation of gold interests through a like-kind exchange of coal and gold properties between SFPG and Hansen Natural Resources Company.  After representing SFPG in numerous joint venture transactions throughout the west, in antitrust and environmental litigation in federal and state courts in New Mexico, and in tax proceedings arising from the like-kind exchange, since the merging of SFPG into Newmont we represented Newmont in state and federal regulatory proceedings and lobbying related to Newmont's New Mexico holdings, most notably in connection with legacy issues relating to the Northeast Church Rock Mine and operations conducted on SFPG and Navajo trust split-estate properties by United Nuclear Corporation.
  • Exploration Permitting Under the New Mexico Mining Act
    Having participated in legislative and rulemaking proceedings surrounding New Mexico's reclamation permitting regime administered by the Mining and Minerals Division and Mining Commission, our attorneys have effectively assisted numerous clients and their technical consultants in obtaining exploration and minimal impact permits.

Range of Representation 

Our extensive mining industry legal experience includes representation relating to hardrock, precious metals, energy fuels (including coal and uranium), construction aggregates and industrial, rare and specialty minerals. We represent clients in a wide range of matters, including: 

  • Permitting, inspections and enforcement proceedings at all levels of government, as well as well as administrative adjudications and rulemakings.

  • Development projects and operations on federal and state public lands, including: all aspects of staking and maintaining claims to locatable minerals under the General Mining Law of 1872; leasing of leasable minerals under federal and state programs; plans of operations, rights of way and special use permit requirements of land management agencies including the Bureau of Land Management and the United States Forest Service; and notice of intent to locate procedures on Stock Raising Homestead Act lands.

  • Legislative lobbying and executive branch governmental affairs in New Mexico.

  • Mine permitting and reclamation regimes for coal and non-coal operations including compliance with the federal Surface Mining Control and Reclamation Act (SMCRA) and the New Mexico Mining Act.

  • Environmental evaluation, permitting, compliance and liability counseling, as well as enforcement proceedings, under regimes such as the National Environmental Policy Act (NEPA); the Clean Water Act (including Section 402 NPDES and storm water permits, Section 404 dredge and fill permits); the New Mexico Quality Act (including ground water discharge permits); the Safe Drinking Water Act (SDWA); the Clean Air Act and its state counterpart; the Comprehensive Environmental Responsibility, Compensation and Liability Act (CERCLA, or Superfund); the Resource Conservation and Recovery Act (RCRA); cultural resources laws including the National Historic Preservation Act (NHPA), the Archeological Resources Protection Act (ARPA), the Antiquities Act, the Native American Graves  Protection and Repatriation Act (NAGPRA), the New Mexico Cultural Properties Act, and others; and wildlife protection laws, including the Endangered Species Act (ESA), the Migratory Bird Treaty Act (MBTA), the Bald Eagle Protection Act and others.

  • Special issues associated with the nuclear fuel cycle, including: land acquisitions, leasing and claims staking; uranium exploration and mine permitting; in-situ mining, processing and radiological materials handling and licensing; milling and tolling agreements; uranium enrichment technologies and facilities; special nuclear, biproduct and waste production, storage and disposal; and issues under the Atomic Energy Act and Uranium Mill Tailings Reclamation and Control Act.

  • Resources acquisition, leasing and permitting; mine dewatering; inter- and intra-basin water rights transfers; water impairment and contest proceedings; pre-basin Mendenhall water rights, well drilling, infrastructure and plugging and abandonment issues; stream adjudications; and federal reserve water rights litigation and settlements.

  • Projects within "Indian country," including structuring transactions, negotiating effectively, and crafting agreements that maximize predictability and enforceability under federal Indian law doctrines on sovereign immunity and exhaustion of tribal remedies.

  • Commercial and environmental litigation and enforcement proceedings and appeals relating to mining projects, including all federal, New Mexico and Navajo Tribal Courts.

  • Business entity formation, mergers, acquisitions, transactional due diligence, environmental due diligence, like-kind exchanges and associated federal, state and local tax considerations, including severance and gross receipts, consolidated reporting  issues, and like-kind exchange tax treatments.

  • Negotiation and drafting of mining-related transactional vehicles, including exploration and mining leases, options, and licenses; rights-of-way, access and surface use agreements; assignments, conveyances and special warranty and quitclaim deeds; mill tolling agreements; joint venture agreements and limited liability company documentation; risk allocation, indemnification and insurance agreements, equipment purchasing and leasing, and transportation, marketing and sales contracts.

  • Royalty and royalty valuation issues, including interaction with private and government royalty management personnel; drafting and interpretation of royalty instruments; unit-based, gross proceeds, net profits and net smelter return royalties and royalties in kind; and royalty accounting and settlements.

  • Employment counseling, labor union advice, occupational and mine health and safety issues under OSHA and MSHA, sexual harassment sensitivity training, reduction in force, administrative adjudications and all varieties of employment and employee personal injury litigation.

  • International transactions, mining development agreements, financing, NI 43-101 advice, corporate social responsibility, indigenous rights issues, Foreign Corrupt Practices Act issues, dispute resolution mechanisms, political risk insurance and other issues.

Litigation, Administrative Adjudications, Alternative Dispute Resolutions, and Appellate Experience

Modrall Sperling's mining and environmental attorneys themselves have extensive commercial and environmental litigation experience in state and federal courts. For large-scale litigation involving, for example, antitrust, multiple mineral development agreements, company-wide employment and other complex issues requiring a team of litigators, we have the ability to draw on the firm's considerable depth of litigators with all levels of experience to provide expert and cost-effective representation. We also prosecute administrative appeals in connection with such matters as regulatory enforcement actions, final agency decisions, royalty valuations, and tax assessments. Our litigation experience includes, among many other matters, disputes over mining and processing contracts, antitrust issues, ownership of mineral properties, priority of mining claims, public and private lands access, mine reclamation, Indian claims, water rights, environmental remediation, permitting, taxes, and the validity of mining leases. We also participate extensively in alternative means of dispute resolution, including arbitrations, mediations and settlement conferences.

Key Roles on Behalf of the Mining Industry

Our attorneys have also played key roles on behalf of the mining industry in trade associations such as the New Mexico Mining Association and the New Mexico Association of Commerce and Industry, and have extensively impacted professional organizations involved in issues surrounding the natural resources extractive industries, including the Rocky Mountain Mineral Law Foundation (past president, board members, several trustees, and active involvement in chairing several standing committees and legal education programs), the State Bar of New Mexico and ABA Sections on Natural Resources, Energy and Environmental Law (several past chairs and vice-chairs).