On April 26, 2011, the Bureau of Land Management ("BLM") published a proposed rule that would prevent mining claims from being filed on public lands that BLM has designated for rights of way for wind- or solar-energy projects or for which an application for a right of way is pending. The Mining Law of 1872 prohibits rights of way from materially interfering with a previously located mining claim, and mining claims, unlike rights of way, are presumed valid upon filing, until proven otherwise. Also, mining claims are easy and inexpensive to file, and proving that a mining claim was improperly filed or does not contain a valid discovery is difficult, time-consuming, and costly. Thus, mining claims can tie up pending applications for solar- or wind-energy rights of way and may undercut BLM's efforts to set aside land for future rights of way. Indeed, BLM is concerned that some mining claims were being filed for the sole purpose of disrupting plans for solar- and wind-energy projects in the hope that developers would pay the filers to relinquish the claims. Consequently, BLM proposes to segregate all lands that are designated for wind- and solar-energy rights of way or are involved in a pending application for such a right of way from other public lands that are available for mining claims. The proposed segregation would have no impact on applications for rights of way for other purposes and would not affect valid existing rights in mining claims. On April 26, 2011, BLM also published an interim final rule that immediately segregates land for solar- and wind-power rights of way for two years, until April 26, 2013, while the proposed rule is being considered. Comments on the proposed rule must be received by June 27, 2011.
The proposed rule is available at: http://www.gpo.gov/fdsys/pkg/FR-2011-04-26/pdf/2011-10017.pdf
The interim final rule is available at: http://www.gpo.gov/fdsys/pkg/FR-2011-04-26/pdf/2011-10019.pdf