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In my last column I talked about a coming shift in the analysis the Federal Mine Safety and Health Review Commission will use when it considers retaliation cases brought by the Secretary of Labor or by miners under § 105(c) of the Mine Act.  For those of you that came in late, here’s the deal:  until very recently, the miner (or MSHA, if they’re stepping in on the miner’s behalf) would have to prove first, that the miner engaged in activity protected by the Act.  Then the miner would have to prove that his employer took adverse action against him (like firing him, or reassigning him to a worse job, things like that).  Finally, the miner would have to prove unlawful motivation:  that is, that the company took the adverse action because the miner had engaged in protect activity.  (There are more details, but you don’t need them for today’s discussion.)  We call that the Pasula-Robinette analysis, after the cases in which it was first articulated.  A few months back, the U.S. Court of Appeals for the Ninth Circuit chose a different analysis for § 105(c) cases, holding that the company’s retaliatory action is unlawful if it would not have treated the miner the way it did but for the miner’s protected activity.  As I told you when we first talked about it, the Ninth Circuit’s decision was undoubtedly going to have an impact on the way the Commission decides § 105(c) cases.  I just couldn’t predict what that impact would be.  (I know, I know.  And here you thought I knew everything there was to know about this sort of thing.  Sorry.)

Welp, we still don’t know how this is going to play out.  But last month a new § 105(c) case came out of the Commission that muddied the waters even further.  That’s the case I want to talk about this month.…

Continue Reading Wait … What?  A Potentially Dangerous Development in § 105(c) Retaliation Cases

Let me tell you about an experience I had with a Labor Department lawyer earlier this month. It was one of those experiences that made me realize how important it is for those of us in the mining industry to have a good working knowledge of the Mine Act and how enforcement is supposed to work.

I represent a really good client, a company that mines its own materials and uses those materials in construction projects around the community. The construction side of the business is really what they do, with the rock production part being a small but necessary aspect of the operation. They generally have an excellent enforcement record when it comes to MSHA, but it would be a mistake to call them sophisticated mine operators. 

It’s a fine, close-knit group of people, out there doing their best and trying to make a living. Every contact I have with them is positive and reminds me of how much I like the people part of what I do.

One Friday afternoon a while back, some of the folks on the mining side of the operation were welding a new guardrail on the crusher feeder because an MSHA inspector required that as a condition of terminating a citation. They were installing the new guardrail in sections and using the raised bucket of a loader as a physical barricade to provide fall protection for each section that was missing as they advanced along the feeder. 

As they were getting ready to install the last section, MSHA arrived on-site to terminate the earlier citation. The three miners working on the installation were struggling a bit to stabilize the last piece of rail. Just as the inspector and the management representative got to the crusher, the loader operator jumped out of the machine and ran to lend a hand to the miners on the catwalk – leaving the loader unattended and the bucket raised.

You know what happened next. …

Continue Reading We Have to Know What We’re Doing, Because They Don’t Always Get It

Last week, the U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) announced a new initiative to strengthen enforcement of its current respirable crystalline silica standards.  Crystalline silica is a common mineral found in sand, stone, concrete, and other materials.  When disturbed by cutting, grinding, or crushing, it becomes airborne and respirable, capable of…

Just a few short months ago, we would have thought that COVID-19 was almost behind us and that it was only a matter of time before mine operators would no longer have to worry about the spread of the disease at their worksites.  It looked like face masks and vaccinations had done their jobs, and that we had turned the corner on the pandemic.

It turns out we may have been just a tad over-optimistic.  Like every other sector, the mining industry is looking at growing numbers of positive cases.  In an environment where employees cannot work remotely; often live in small, tight-knit communities; and (particularly at underground mines) must work in close quarters, mine operators need to consider whether it makes sense to require miners to get the COVID-19 shot.

The mining industry is not alone.  While many employers initially were hesitant to institute mandatory COVID-19 vaccination policies, the recent surge driven by the Delta variant and announcements from large organizations—including the U.S. military, United Airlines, and major health care systems across the country—have caused many employers to revisit mandatory vaccination policies.
Continue Reading Mandatory Vaccination Policies for Employees: What Can (and Should) We Do?

The Commissioner of the Department of Natural Resources has issued an Order granting a one year extension for mining payments due under Alaska Statute 38.05.210 (Annual Labor) and Alaska Statute 38.05.211 (Annual Rental).

In response to COVID-19, and in an attempt to stop the spread of the virus, the Alaska Department of Health and Social…

When Alaska amended its mineral tenure statutes, it significantly changed the statement of labor that must be filed annually to maintain state mining claims. We previously provided an overview of the changes and now explain them in more detail. Neither the amount of labor required nor the deadline for filing the annual statement has changed. Rather, the amendments clarify what counts as labor and what must be reported on the annual statement.

The law now clearly recognizes that labor that occurs on adjacent federal or private mineral interests held in common with state claims can be credited toward the claims so long as the claims benefit from the labor. While most miners believed the prior statutory language—providing that all work benefiting the state claims counted toward the labor requirement—allowed work on non-state lands to satisfy the labor requirement, the new language removes any room to question this long-standing practice.

The information that must be included in the annual statement of labor—commonly referred to as an affidavit of labor, or AOL—is now set forth in the statute, rather than the regulations. There are a few significant changes from the prior requirements.
Continue Reading Changes to Alaska’s Mining Laws – Annual Labor

Senate Bill 155, amending Alaska’s mineral tenure statutes, took effect April 30, but also addresses certain historical events affecting state mining claims. As previously reported, the amendments clarify who can hold state mining rights. But maybe more importantly, the law now addresses the effect of past qualification issues on the validity of the mineral interests.

Alaska law has long required that a corporation could hold state mining rights only if it is organized under U.S. law (including the laws of any state or territory) and qualified to do business in the State of Alaska. But in some instances, a mining claim’s history includes a time when a foreign entity held the mining claims or the business qualifications had lapsed in some manner and then been cured. The effect of these historical events on the current validity of the claims was unclear.
Continue Reading Changes to Alaska’s Mining Laws – Qualification Statutes

Governor Mike Dunleavy signed Senate Bill (“SB”) 155 amending Alaska’s mineral tenure statutes, effective April 30, 2020. The legislation addresses issues regarding qualification to hold state mining claims, location of claims, statements of annual labor, and automatic abandonment of mining claims. The amendments and additions to the statutes clarify a number of issues and assure that state mining claims are not deemed abandoned without due process.

Qualifications

SB 155 amends AS 38.05.190 to clarify who may hold exploration and mining rights. As amended, the law expressly authorizes limited liability companies qualified to do business in Alaska and registered trusts to acquire and hold state mining claims. Previously, it was not clear that these types of entities could hold claims, or what effect such ownership may have on the claims. The amendments include a notice and cure process by which the Department of Natural Resources (“DNR”) may void a mining interest if a qualification defect is not cured within 90 days after notice. The requirement that an owner be a citizen of the United States or a business entity organized in the United States, with limited exceptions, remains in the statute.
Continue Reading Alaska’s Mineral Tenure Statutes Amended

The Department of Natural Resources (“DNR”) Division of Mining, Land and Water has issued guidance for placer mining operations to comply with the state’s COVID-19 health mandates. Mining is identified as “critical infrastructure” in the Alaska Essential Services and Critical Workforce Infrastructure Order. Before traveling to their placer operation, and while at their operation,…

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Here Stoel Rives shares insight and analysis about key mineral law developments. Drawing on a very active natural resources practice, we aim to keep readers informed about the legal aspects of news that impacts exploration and development of all things mineral.