Mining Does Not Mean What You Think It Means

by Law Week Contributor
From left to right: Markley Schlegel, Jessica Black Livingston and Mark Gibson

BY:  Jessica Black Livingston, Mark Gibson and Markley Schlegel

“Inconceivable!” That, of course, is Vizzini’s repeated exclamation of Princess Bride fame. But perhaps just as memorable is Inigo Montoya’s quizzical response: “You keep using that word. I do not think it means what you think it means.”

A renewable-energy company doubtless had the same thought when the federal government sued it on the theory that by digging holes on Indian land in which to plant its wind turbines, the company had engaged in “mining,” thus necessitating that the company obtain a federally approved mineral lease with the Indian tribe. Intuitively, that seems wrong. Yet the U.S. Court of Appeals for the 10th Circuit recently agreed with the government in the case U.S. v. Osage Wind and held that the word mining in federal regulations governing mineral development on tribal lands includes not only extracting minerals for sale but also acting upon extracted minerals to exploit the minerals themselves. That holding has broad implications for companies in the extractive industry.

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