Earthworks v. United States Department of the Interior

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 16, 2024 Decided June 25, 2024
No. 20-5382
EARTHWORKS , ET AL.,
APPELLANTS
v.
UNITED S TATES D EPARTMENT OF THE INTERIOR , ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01972)
Roger Flynn argued the cause for appellants. With him on
the briefs was Jeffrey C. Parsons.
W. Eric Pilsk and Lori Potter were on the brief for amicus
curiae Law Professors in support of appellants.
Brian Toth, Attorney, U.S. Department of Justice, argued
the cause for federal appellees. With him on the brief were
Todd Kim, Assistant Attorney General, and Amelia G. Yowell,
Attorney.

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Elizabeth B. Dawson argued the cause for intervenors
National Mining Association, et al. in support of appellees.
With her on the brief were Shannen W. Coffin, Linda C. Bailey,
Mark C. Savignac, Neil Westesen, Daniel W. Wolff, and Laura
K. Granier.
Gilman Dana S. Burke was on the brief for intervenor State
of Alaska in support of appellees.
Eric Grant, Andrew R. Varcoe, Stephanie A. Maloney, and
Michael A. Tilghman II were on the brief for amici curiae the
Chamber of Commerce of the United States of America and the
National Association of Manufacturers in support of appellees.
Before: KATSAS and P AN , Circuit Judges, and GINSBURG,
Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
Dissenting opinion filed by Circuit Judge P AN .
GINSBURG, Senior Circuit Judge: In 2009, the appellants
unsuccessfully challenged in the district court a Final Rule is-
sued in 2003 by the Department of the Interior Bureau of Land
Management (BLM). That rule withdrew a proposed rule that
would have limited the maximum size of “mill sites” for min-
ing claims on federal lands and instead codified the agency’s
historical understanding that the governing statute imposes no
such limit. The appellants contend the Final Rule embodies an
impermissible interpretation of federal mining law, and that the
BLM promulgated it in violation of the National
Environmental Policy Act (NEPA) and of the Administrative
Procedure Act (APA). The BLM responds that the appellants

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lack standing to bring their suit. We hold the appellants have
standing and go on to affirm the judgment of the district court.
I. Background
The Mining Law of 1872, codified as amended at 30
U.S.C. §§ 21–53, has allowed people to prospect freely for val-
uable minerals on federal lands for more than 150 years. See,
e.g., Union Oil Co. of Cal. v. Smith, 249 U.S. 337, 346 (1919)
(“[The Mining Law] extends an express invitation to all quali-
fied persons to explore the lands of the United States for valu-
able mineral deposits, and holds out to one who succeeds in
making a discovery the promise of a full reward” (cleaned up)).
Under the Mining Law, a prospector who discovers valuable
minerals on federal land may “locate,” i.e., “stake,” a claim on
that land. See 30 U.S.C. § 26. A “located” mining claim is “a
fully recognized possessory interest,” United States v. Locke,
471 U.S. 84, 86 (1985), which its owner may hold as long as
he works it each year and complies with other federal, state,
and local requirements. Orion Rsrvs. Ltd. P’ship v. Salazar,
553 F.3d 697, 699 (D.C. Cir. 2009). The Mining Law histori-
cally allowed a claim holder to acquire title to his claim through
a land patent, but the Congress has imposed a moratorium on
new patents since 1994. See, e.g., Wyo-Ben Inc. v. Haaland,
63 F.4th 857, 863–64 & n.5 (10th Cir. 2023).
Section 42 of the Mining Law provides that the holder of
a mining claim may also locate nearby non-mineral-bearing
land for the purposes of “mining” or “milling”:
Where nonmineral land not contiguous to the
vein or lode is used or occupied by the proprie-
tor of such vein or lode for mining or milling
purposes, such nonadjacent surface ground may
be embraced and included in an application for
a patent for such vein or lode, and the same may

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be patented therewith . . . ; but no location made
on and after May 10, 1872, of such nonadjacent
land shall exceed five acres.
30 U.S.C. § 42(a); see also § 42(b) (providing similarly for
placer mining claims). These noncontiguous lands are known
as “mill sites.” Miners use them to build “processing facilities
and other structures used to support the extraction of minerals
from [their] claim.” Swanson v. Babbitt, 3 F.3d 1348, 1350
(9th Cir. 1993). Under current BLM regulations, “valid uses
of a mill site include tailings ponds and leach pads, rock and
soil dumps, and any other use that is reasonably incident to
mine development and operation.” Ctr. for Biological
Diversity v. U.S. Fish & Wildlife Serv., 33 F.4th 1202, 1210
(9th Cir. 2022) (cleaned up).
In 1997, the Department of the Interior then-Solicitor John
Leshy issued a novel legal opinion concluding that Section 42
prohibits a claim holder from locating more than a total of five
acres of mill-site land with respect to any one mining claim.
U.S. Dep’t of the Interior, Office of the Solicitor, Limitations
on Patenting Millsites under the Mining Law of 1872, M-36988
(Nov. 7, 1997) (1997 Opinion). Two years later, the BLM pro-
posed and solicited public comments on a new regulation to
implement that view. See Locating, Recording, and
Maintaining Mining Claims or Sites, 64 Fed. Reg. 47,023,
47,028, 47,037 (Aug. 27, 1999). The Congress, however,
passed appropriations bills with riders prohibiting the BLM
from implementing the Leshy interpretation during the 1999
and 2000 fiscal years, see Emergency Supplemental
Appropriations, Pub. L. No. 106-31, § 3006(c), 113 Stat. 57,
90–91 (1999); Consolidated Appropriations Act 2000, Pub. L.
No. 106-113, § 337(a), 113 Stat. 1501, 1501A-199 (1999), the
latter of which stated it represented neither approval nor disap-
proval of the interpretation. 113 Stat. 1501A-199.

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In 2003, the Solicitor’s Office issued a new opinion reject-
ing the legal conclusion of the 1997 Opinion. U.S. Dep’t of the
Interior, Office of the Solicitor, Mill Site Location and
Patenting under the 1872 Mining Law, M-37010 (Oct. 7,
2003). The BLM then announced it had “decided to withdraw
the [1999] proposed amendment to the mill site regulations”
and promulgated a Final Rule to that effect, effective in
November 2003. Locating, Recording, and Maintaining
Mining Claims or Sites, 68 Fed. Reg. 61,046, 61,054 (Oct. 24,
2003). After recounting the history of the agency’s interpreta-
tion of Section 42, the Final Rule document stated in response
to public comments that “instead of changing the Department’s
past prevalent practice and interpretation of the mill site provi-
sion, BLM has decided to continue its prevailing practice and
interpretation that the Department followed for a half century
before the 1997 Opinion.” Id. The Final Rule specified that,
although a claim holder may not locate any one mill site larger
than five acres, there is no limit to the number of mill sites it
may locate as long as each site is “reasonably necessary” for
“efficient and reasonably compact milling or min-
ing operations.”*
* The Final Rule provides:
How much land may I include in my mill site?
The maximum size of an individual mill site is
5 acres. You may locate more than one mill site per
mining claim if you use each site for at least one of
the purposes described in § 3832.34 of this part.
You may locate only that amount of mill site acreage
that is reasonably necessary to be used or occupied

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Being a Final Rule, it did not call for additional notice-
and-comment. Nor did it include an Environmental Impact
Statement (EIS); instead, it included an Environmental
Assessment and a Finding of No Significant Impact.
In 2009, Earthworks and several other conservation groups
sued the Interior Department and the BLM in the district court,
challenging the validity of the 2003 Rule under both the NEPA
and the APA. On cross-motions for summary judgment, the
district court rejected the Department’s contention that the ap-
pellants lacked standing and ruled in favor of the Department
on the statutory issue. Earthworks v. U.S. Dep’t of the Interior,
496 F. Supp. 3d 472 (2020).
The district court reached four conclusions relevant to this
appeal:
1. The appellants had standing to sue the Interior
Department challenging the 2003 Rule. Id. at
486–89.
2. Section 42 is facially ambiguous regarding the
aggregate size of mill sites but, considering the
history of the Mining Law, the Department’s in-
terpretation of Section 42 is reasonable. Id. at
494–96.
3. It was not a violation of the NEPA for the BLM
to issue the 2003 Final Rule without an EIS, be-
cause the rule “merely codified the BLM’s pre-
vailing practice; it effected no change in the sta-
tus quo on the ground.” Id. at 496–98.
for efficient and reasonably compact milling or min-
ing operations.
68 Fed. Reg. at 61,070–71 (publishing 43 C.F.R. § 3832.32).

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4. It was not a violation of the APA for the BLM to
promulgate the Final Rule without an additional
round of notice-and-comment because the Final
Rule was “a logical outgrowth” of the 1999 pro-
posed rule. Id. at 498–501.
II. Standard of Review
We review de novo the entry of summary judgment by the
district court. See, e.g., Defenders of Wildlife v. Zinke, 849
F.3d 1077, 1082 (D.C. Cir. 2017).
III. Standing
The Department maintains that Earthworks and the other
appellants lack standing to sue because they allege no injury-
in-fact caused by the promulgation of the Final Rule. Instead,
it says they merely speculate about the potential effects the
mill-site regulation may have on the BLM’s approvals of min-
ing operations, without alleging any disruption to the “concrete
plans” of their members or any “specific interests” they may
have in proposed mill-site lands.
The Department conceives of standing too narrowly. The
Supreme Court has unequivocally held that “environmental
plaintiffs adequately allege injury in fact when they aver that
they use the affected areas and are persons ‘for whom the aes-
thetic and recreational values of the area will be lessened’ by
the challenged activity.” Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting
Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). Applying
that precedent, our caselaw holds that “[i]f a challenged regu-
lation causes individuals to reasonably fear health or environ-
mental harms and thus prevents them from using or enjoying
the aesthetic or recreational value of their area, their injury suf-

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fices for Article III standing.” Cal. Cmtys. Against Toxics v.
EPA, 928 F.3d 1041, 1049 (2019).
The declaration submitted to the district court by appellant
Save the Scenic Santa Ritas adequately alleges this type of in-
jury. Ms. Gayle Hartmann, the declarant and a member of that
organization, states that she lives in the region of a proposed
open-pit copper mine in Pima County, Arizona, and that she
uses the area around the site for “hiking, viewing and enjoying
wildlife, enjoying the clear air and unspoiled scenery, and other
conservation and recreational uses.” She says her use of the
area “will be adversely impacted, if not precluded altogether,”
by the BLM’s permitting practices under the Final Rule and the
concomitant growth of the mine project.
Nothing in the record suggests Ms. Hartmann’s fears are
unreasonable or premature. On the contrary, the complaint
specifically alleges that the members of Save the Scenic Santa
Ritas would suffer aesthetic and recreational injuries at the
Pima County site as a result of the Final Rule. The appellants
claim the owners of the site propose to use mining claims
around the site for “waste, processing, and tailings facilities”
— in short, for mill-site purposes. They further assert that
under the Final Rule — and another rule not at issue in this
appeal — the agency failed to consider and protect the recrea-
tional and aesthetic interests that Save the Santa Ritas and its
members have in the Pima County site. Buttressing that alle-
gation, the record indicates the proprietor of the proposed mine
has located approximately 3,500 acres of mill-site land at the
site.
These alleged injuries are of a piece with others we have
held establish the injury-in-fact necessary for Article III stand-
ing. For example, in Sierra Club v. Jewell, 764 F.3d 1 (2014),
the plaintiff alleged injury to her recreational use of nearby ar-

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eas caused by the delisting from the National Register of
Historical Places of a battlefield area that coal companies in-
tended to mine, id. at 5–6. Similar injuries were alleged in
California Communities Against Toxics, caused by the
Environmental Protection Agency’s decision to grant an excep-
tion to a rule governing the transport of hazardous material,
which waste-disposal companies would likely use in the future
to the detriment of those petitioners’ health and environmental
amenities, 928 F.3d at 1047–49. So, too, in Clean Wisconsin
v. EPA, 964 F.3d 1145 (2020), owing to a decision of the EPA
not to demand stricter state controls on ground-level ozone lev-
els, id. at 1156–57; and in Association of Battery Recyclers,
Inc. v. EPA, 716 F.3d 667 (2013), due to the EPA’s decision
not to recalculate stringency requirements for sources of air-
borne lead pollution, id. at 672–73.
In this case, we hold the allegations of harm set forth in the
declaration of Ms. Hartmann suffice to give her — and the or-
ganization of which she is a member — standing to challenge
the Final Rule. Because “the presence of one party with stand-
ing is sufficient to satisfy Article III’s case-or-controversy re-
quirement,” Rumsfeld v. F. for Acad. & Inst’l Rights, Inc., 547
U.S. 47, 52 n.2 (2006), we need not consider whether the other
appellants also have standing — “the suit may proceed.” Biden
v. Nebraska, 600 U.S. ---, 143 S. Ct. 2355, 2365 (2023).
IV. The Mining Law
Earthworks and the other appellants claim the BLM’s in-
terpretation of Section 42 of the Mining Law set out in the Final
Rule is unreasonable. They contend Section 42 unambiguously
limits a claimant to one five-acre mill site per mining claim.
The agency maintains its interpretation is permissible because
Section 42 contains no express limitation on the number of mill

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sites a claimant may locate, and because its interpretation is
suggested by the history of the statute.
We have no difficulty concluding that the interpretation
embodied in the mill-site regulation represents the better read-
ing of the statute. The operative words of Section 42 plainly
contain no limit on the number of mill sites a claim owner may
locate:
Where nonmineral land not contiguous to the
vein or lode is used or occupied . . . for mining
or milling purposes, such nonadjacent surface
ground may be embraced and included in an ap-
plication for a patent for such vein or lode . . . ;
but no location . . . of such nonadjacent land
shall exceed five acres.
30 U.S.C. § 42(a); see also § 42(b) (providing for mill sites as-
sociated with a placer claim that “[n]o location made of such
nonmineral land shall exceed five acres”). Nothing in these
words, which are substantially unchanged since the 42nd
Congress enacted them more than 150 years ago, see 17 Stat.
91, 96, § 15 (1872), suggests a limitation on the number of mill
sites the holder of a mining claim may locate at a claim or a
limitation upon the total acreage of mill-site land a claimant
may locate at a claim. As the Department correctly observes,
a limit on size does not logically necessitate a corresponding
limit on number. Br. of Fed. Appellees at 37.
Earthworks propounds a contrary reading of Section 42
based upon the word “such” in the third clause of subsec-
tion (a):
[1] Where nonmineral land not contiguous to
the vein or lode is used or occupied . . . for min-
ing or milling purposes, [2] such nonadjacent

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surface ground may be embraced and included
in an application for a patent for such vein or
lode . . . ; [3] but no location . . . of such nonad-
jacent land shall exceed five acres.
30 U.S.C. § 42(a) (emphasis added). The appellants advance
the argument made in the 1997 Opinion that the phrase “such
nonadjacent land” in the third clause of subsection (a) refers to
land delimited by the phrase “may be embraced and included
in an application for a patent for [a] vein or lode” in the second
clause. This, they say, creates a “one-to-one relationship” be-
tween each mill site and a corresponding mining claim, thereby
prohibiting a claimant from locating more than five acres —
the maximum size of a single mill-site location — of mill-site
land for any mining claim.
Earthworks, in other words, urges us to ascribe different
meanings to identical uses of the word “such” in successive
clauses. We cannot accept so strained a reading of the statute.
The antecedent of “such” in the second clause of Section 42(a)
is the phrase “nonmineral land not contiguous to the vein or
lode [that] is used or occupied by the proprietor of such vein or
lode for mining or milling purposes.” When the third clause of
the statute again uses “such” as part of the phrase “such nonad-
jacent land,” the word refers to the same antecedent to which it
referred in the second clause, viz., “nonmineral land not con-
tiguous to the vein or lode [that] is used or occupied . . . for
mining or milling purposes.” Contrary to Earthworks’ asser-
tion, the antecedent of “such” in the third clause cannot be read
to expand from its previous use in the same sentence suddenly
to encompass the phrase “may be embraced and included in an
application for a patent for [a] vein or lode.” The structure of
Section 42 is not so convoluted. The statute first defines mill-
site land to be “nonmineral land not contiguous to the vein or
lode [which] is used or occupied by the proprietor of such vein

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or lode for mining or milling purposes.” It then imposes a five-
acre size limit not upon “such [mill-site] land,” but rather upon
a “location . . . of such [mill-site] land,” using the term “loca-
tion” in its technical mining sense. See, e.g., Location, def. 4,
1 Oxford English Dictionary 1648 (compact ed. 1971) (“The
marking out or surveying of a tract of land (esp. of a ‘claim’)
or a settlement”).† Nothing in the use of “such” in the statute
implies any limitation on the number of permissible mill-site
locations. On the contrary, by saying “no location . . . of such
nonadjacent land shall exceed five acres,” rather than “the lo-
cation . . . of such nonadjacent land shall not exceed five
acres,” the statute implies more than one mill site may be lo-
cated at a claim.
Nonetheless, Earthworks urges us to consider the wording
of Section 42 in light of the history of the statute and related
provisions of the Mining Law, but doing so only strengthens
the force of the Department’s interpretation. The operative
words of Section 42 closely resemble those the Congress used
in Section 35 to limit the size of placer claims: “[N]o such
location shall include more than twenty acres of land for each
individual claimant.” 30 U.S.C. § 35. Less than a decade after
the enactment of the Mining Law, the Supreme Court held
Section 35 imposes no limit on the number of 20-acre placer
claims a miner may acquire. St. Louis Smelting & Refining Co.
v. Kemp, 104 U.S. 636, 651 (1881) (“A limitation is not put
upon the sale of the ground located, nor upon the number of
locations which may be acquired by purchase, nor upon the
number which may be included in a patent”). If Section 35,
† The conclusion urged by the appellants and adopted by our dissent-
ing colleague follows only if one disregards the phrase “location
. . . of” in the key sentence. When that phrase is not ignored, the
argument that the statute plainly imposes a five-acre limit upon “all
of the nonmineral land that can be claimed in connection with a par-
ticular mining claim,” below at 13, becomes untenable.

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which includes the phrase “for each individual claimant” in its
words of limitation, imposes no numerical limit on the number
of placer claims a miner may acquire, then it follows inelucta-
bly that Section 42, which does not include the “for each indi-
vidual claimant” limitation, likewise imposes no numerical
limit on the number of mill sites a claimant may acquire.
Nor can it be said that the Congress did not know how to
impose express limitations on mining claim locations. As the
Department points out, the so-called “Lode Law” of 1866,
which was superseded by the Mining Law of 1872, contained
an express prohibition on a claimant locating more than one
mining claim on a single lode: “[N]o location [of a lode claim]
hereafter made shall exceed two hundred feet in length along
the vein for each locator . . . : And provided further, That no
person may make more than one location on the same lode.”
Act of July 26, 1866, § 4, 14 Stat. 251, 252 (1866). This pro-
hibition is conspicuously absent from the corresponding sec-
tion of the Mining Law. See 30 U.S.C. § 23.
For these reasons, we conclude that the grammatical struc-
ture and history of Section 42 and the precedent regarding re-
lated provisions of the Mining Law support the BLM’s inter-
pretation of the statute.‡
‡ Our dissenting colleague rests her contrary conclusion upon two
late-19th-century administrative decisions. To be sure, governmental
interpretations of a statute may be “powerful evidence” of its original
meaning if they are “early, longstanding, and consistent.” Kisor v.
Wilkie, 588 U.S. 558, 594 (2019) (Gorsuch, J., concurring in judg-
ment) (emphasis omitted). The interpretations cited in the dissent,
however, are early but not longstanding because they are not con-
sistent with subsequent practice. She also cites a handful of
Congressional reports from the mid-20th century, but we think these

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V. The NEPA
Earthworks next contends the agency violated the NEPA
by failing to prepare an Environmental Impact Statement for
the Final Rule. The NEPA imposes upon federal agencies a
statutory duty to include in all proposals for “major Federal ac-
tions significantly affecting the quality of the human environ-
ment, a detailed [environmental impact] statement by the re-
sponsible official.” 42 U.S.C. § 4332(2)(C).
Not every federal action is a “major” action that “signifi-
cantly affect[s]” the quality of the human environment. Id. An
agency is not required to prepare an EIS for a proposed action
that it determines, based upon a preliminary “environmental as-
sessment,” “will not have a significant effect on the human en-
vironment.” Food & Water Watch v. FERC, 28 F.4th 277, 282
(D.C. Cir. 2022) (quoting 40 C.F.R. § 1508.13 (2019) (Council
on Environmental Quality)).
Pursuant to the APA, “[a]n agency’s decision not to pre-
pare an EIS can be set aside only upon a showing that it was
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’” Dep’t of Transp. v. Pub. Citizen, 541
U.S. 752, 763 (2004) (quoting 5 U.S.C. § 706(2)(A)). “Our
role in reviewing an agency’s decision not to prepare an EIS is
a limited one, designed primarily to ensure that no arguably
significant consequences have been ignored.” Myersville
Citizens for a Rural Cmty., Inc. v. FERC, 783 F.3d 1301, 1322
(D.C. Cir. 2015) (cleaned up).
even less persuasive. These sources reflect only the confusion that
surrounded the statute in the mid-20th century, not the intent of the
42nd Congress that had enacted the statute a century earlier.

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The environmental assessment the BLM prepared for the
Final Rule concludes:
Because this rule will maintain BLM’s long-
standing practice regarding mill sites, the rule
does not create any new environmental impacts.
Publishing this rule leads to the same environ-
mental impacts as the no-action alternative be-
cause BLM is not changing the existing rules in
any substantive way.
The BLM’s reasoning is sound. It identified nine different
agency documents dating from 1954 to 1991 in support of its
conclusion that “[f]or nearly half a century, the BLM’s written
guidance has reflected the view that the mill site provision does
not categorically limit the number of mill sites that may be lo-
cated and patented for each mining claim.” 68 Fed. Reg. at
61,054–55. In other words, the Final Rule did nothing more
than withdraw the proposed rule and codify the status quo ante.
In their briefs and at oral argument, the appellants were
unable to identify even a single instance in which the BLM re-
lied upon the 1997 Opinion as a basis to reject a proposed min-
ing plan. The one time the BLM announced its intention to
apply the 1997 Opinion to a mining plan was dropped when the
Congress enacted the aforementioned 1999 appropriation rider
prohibiting it from doing so. See 68 Fed. Reg. at 61,055. There
is no indication that, even after the 1999 appropriation rider had
expired, the agency implemented the 1997 Opinion. In sum,
the BLM never implemented the view expressed in the
1997 Opinion and the proposed rule. It follows that the Final
Rule effected no change in the status quo and therefore had no
“arguably significant consequences” for the human environ-
ment. Myersville Citizens, 783 F.3d at 1322.

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The appellants argue the BLM ignored “the real on-the-
ground impacts” of the Final Rule, which they characterize as
embodying a “differing regulatory approach[].” As explained
above, however, the Final Rule did not change the status quo
ante – it has no “real on-the-ground impacts” at all. As we have
held before, an agency’s adoption of a policy that merely main-
tains the status quo is not a “major Federal action” for which
the NEPA requires the agency to prepare an EIS. Fund for
Animals, Inc. v. Thomas, 127 F.3d 80, 82–84 (1997); Sierra
Club v. Andrus, 581 F.2d 895, 902–03 (1978), rev’d on other
grounds, 442 U.S. 347 (1979); see also Comm. for Auto Resp.
v. Solomon, 603 F.2d 992, 1002–03 (1979) (“The duty to pre-
pare an EIS normally is triggered when there is a proposal to
change the status quo. . . . Without a change in . . . policy
. . . there is no proposal for major federal action significantly
affecting the environment”). The Final Rule, therefore, was not
a “major Federal action” within the meaning of the NEPA, and
it was not arbitrary or capricious for the BLM not to prepare an
EIS for the Final Rule.
The appellants rather lamely contend that a change in the
status quo in fact had taken place. They seize upon the word
“return” in one sentence in the 2003 Opinion of the Solicitor:
“Accordingly, the Department should return to its prevalent,
pre-1997 administrative practice and interpretation, under
which the mill site provision was interpreted as not imposing
such numerical restrictions.” Above, p. 3, at 4. It is perfectly
clear in the Opinion itself, however, that the agency’s use of
the word “return” did not mean that practices had changed with
the 1997 legal interpretation by the previous Solicitor. To the
contrary, the 2003 Opinion states that the 1997 Opinion had
effected no change in practices: “As a result of the 1999 enact-
ments, the 1997 Opinion has not been applied as the basis for
denying a proposed mining plan.” Id. at 2. “The Department

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has administered the mill site provision in accordance with that
view.” Id. at 23.
Viewed in context, therefore, we see that the 2003 Opinion
used “return” in the limited sense that it meant to repudiate the
1997 Opinion, which had never been implemented, and return
to the Department’s pre-existing stance; it did not suggest the
Department was making a change that had practical environ-
mental consequences requiring consideration and analysis in an
EIS. Cf., e.g., Am. Wild Horse Pres. Campaign v. Perdue, 873
F.3d 914, 930–31 (D.C. Cir. 2017) (holding arbitrary and ca-
pricious an agency’s decision not to prepare an EIS when re-
versing a boundary change the agency contended had been
purely “administrative,” because the record showed the agency
had been applying the change to its management decisions).
Even if the Department had applied the 1997 Opinion,
moreover, the NEPA would not have required the Department
to prepare an EIS. In its Notice of Proposed Rulemaking, 64
Fed. Reg. at 47,030 (NOPR), the BLM had determined the pro-
posed rule was not a major Federal action that would signifi-
cantly affect the human environment:
We have analyzed this rule in accordance with
the criteria of the [NEPA] . . . . Since no sub-
stantial changes are proposed, this rule does not
constitute a major Federal action significantly
affecting the quality of the human environment.
Because this rule does not substantially change
BLM’s overall management objectives or envi-
ronmental compliance requirements, it would
have no impact or only marginally affect
. . . critical elements of the human environment.
If adopting the proposed rule would not have significantly af-
fected the human environment, then we fail to see how not

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adopting the proposed rule could have a significant effect on
the human environment.
That determination also dooms Earthworks’ argument that
the environmental assessment the Department prepared (per-
haps needlessly) for the 2003 Final Rule failed to discharge its
statutory duty to “study, develop, and describe appropriate al-
ternatives to recommended courses of action in any proposal
which involves unresolved conflicts concerning alternative
uses of available resources.” 42 U.S.C. § 4332(2)(H). The al-
ternative to withdrawing the proposed rule was to adopt it,
which the BLM had already concluded would have no signifi-
cant impact on the environment: The “ultimate impacts from
mining would likely not change” because, as “[f]ormer
Solicitor Leshy acknowledged,” mining companies can acquire
mill-site land in “at least two other ways.” Environmental
Assessment at 6–7 (quoting 1997 Opinion at 2).
Earthworks dismisses this justification as speculative, but
whether it is speculative is of no consequence in this procedural
setting. Again, the BLM had determined in its NOPR that the
rule would not significantly affect the human environment. If
the agency insufficiently considered the proposed rule as an al-
ternative to the Final Rule, which we doubt, then the error was
clearly harmless. See, e.g., Oglala Sioux Tribe v. NRC, 45
F.4th 291, 300 (D.C. Cir. 2022) (error is harmless “when the
agency has undertaken the required analysis but ‘failed to com-
ply precisely with NEPA procedures’” (quoting Nevada v.
Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006)).
Earthworks also maintains that, because the BLM did not
solicit public comment on the environmental assessment in the
Final Rule, the BLM violated the Interior Department regula-
tion that requires it to provide public notice and the opportunity
for involvement “to the extent practicable” during its prepara-

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19
tion of an environmental assessment. 43 C.F.R. § 46.305(a)–
(b). The regulations also provide, however, that “the methods
for providing public notification and opportunities for public
involvement are at the discretion of the Responsible Official,”
43 C.F.R. § 46.305(a), and we have held the BLM has “signif-
icant discretion” in determining when and how to comply with
these regulations. See Theodore Roosevelt Conservation
P’ship v. Salazar, 616 F.3d 497, 519 (2010) (BLM “need not
include the public in the preparation of every EA”).
In this case, the agency had good reason for not including
the public in the preparation of its environmental assessment,
as the district court so held. In response to the 1999 proposed
rule, the BLM had received public comments on the proposed
rule addressing mill sites and their environmental effects. 68
Fed. Reg. at 61,054. As we have seen, the Final Rule did noth-
ing more than decline to adopt the proposed rule and instead
codify the status quo ante, which had no effect on the human
environment. Therefore, it was not an abuse of discretion for
the BLM to conclude the notice given and comments received
regarding the proposed rule had satisfied its obligations under
the NEPA. Another round of notice and comment prior to is-
suing the Final Rule withdrawing the proposed rule and codi-
fying the status quo would have accomplished nothing but ex-
pense and delay.
VI. The Administrative Procedure Act
Finally, the appellants contend the Department violated
the notice provision of the APA, 5 U.S.C. § 553(b), by issuing
the Final Rule without an additional cycle of notice and com-
ment. They assert the 2003 Rule was not a “logical outgrowth”
of the proposed rule.
Under the APA, an agency must provide an opportunity
for notice and comment if a final rule is not a “logical out-

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20
growth” of a proposed rule, because in that case notice of the
proposed rule will have given the public no occasion to com-
ment on what emerged as the final rule. See, e.g., Shell Oil Co.
v. EPA, 950 F.2d 741, 747 (D.C. Cir. 1991) (“If the deviation
from the proposal is too sharp, the affected parties will not have
had adequate notice and opportunity for comment”).
In this case, the NOPR squarely raised the question
whether Section 42 of the Mining Law limits a claimant to one
five-acre mill site per mining claim, and it proposed to answer
“yes” to that question. A negative answer to the question, like
a positive answer, is a logical outgrowth of that proposition.
As we said most recently in New York v. EPA, 413 F.3d 3, 44
(2005), “[o]ne outgrowth of a proposed rule is surely to refrain
from taking the proposed step.” So too is a decision to codify
an interpretation reflected in decades of practice, as against a
proposal to adopt a new, competing interpretation.
VII. Conclusion
For the foregoing reasons, the judgment of the district
court is
Affirmed.

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PAN, Circuit Judge, dissenting:
Under the Mining Law of 1872, a mining company that
claims public land for mining purposes may also claim
nonmineral land to support its mining operations. Such
nonmineral land is known as a “mill site,” and no mill site
“shall exceed five acres.” 30 U.S.C. § 42; see 43 C.F.R.
§ 3832.31. This case requires us to determine whether the
Mining Law limits mill-site land to a total of five acres per
mining claim; or whether it allows a mining claimant to acquire
an infinite number of five-acre mill sites, thereby imposing no
real limit on mill sites at all. My colleagues in the majority
adopt the “unlimited mill sites” approach, reasoning that
nothing in the statute precludes such an interpretation. See
Maj. Op. at 9–13. In my view, however, the text, structure, and
historical context of the Mining Law compel the opposite
reading. I therefore respectfully dissent.1
I. Background
Understanding the issue before us requires us to delve into
mining practices and regulations over the past 150 years. To
start, the purpose of mining laws is to promote the development
of mineral resources on public land. See, e.g., U.S. ex rel. U.S.
Borax Co. v. Ickes, 98 F.2d 271, 279 (D.C. Cir. 1938) (“[T]he
general policy of the mining laws of the United States . . . has
been to promote widespread development of mineral deposits
and to afford mining opportunities to as many persons as
possible.”); Orion Rsrvs. Ltd. P’ship v. Salazar, 553 F.3d 697,
699 (D.C. Cir. 2009) (“To encourage mining in the western
United States, Congress enacted the General Mining Law of
1 Because I would reverse and remand on statutory-interpretation
grounds, I take no position on the majority’s analysis of Appellants’
claims under the National Environmental Policy Act and the
Administrative Procedure Act’s “logical outgrowth” doctrine. I
concur with the majority’s standing analysis.

-- 21 of 43 --

2
1872 . . . .”). To that end, miners may claim land owned by the
federal government for the purpose of conducting mining
operations. See 30 U.S.C. §§ 22, 26. There are two types of
federal land that may be claimed: mineral land and nonmineral
land. Mineral land is land containing “valuable mineral
deposits” that can be mined. Id. § 22. Nonmineral land is
everything else, and it can be used to support mining in various
ways — including as a place to dispose of waste rock that is
excavated in the process of mining. Notably, however, there
are competing, productive uses for public, nonmineral land:
Such land can support homesteads, universities, and railroads,
for example. See Watt v. W. Nuclear, Inc., 462 U.S. 36, 47 n.8
(1983) (describing other types of land grants).
For approximately the first century of our nation’s history,
“there was practically no legislation on the part of [C]ongress
for the disposal of mines or mineral lands.” Del Monte Min. &
Mill. Co. v. Last Chance Min. & Mill. Co., 171 U.S. 55, 61
(1898). But that did not mean that federal mineral land was left
untouched. Rather, “the fact of explorers searching the public
domain for mines, and their possessory rights to the mines by
them discovered, was generally recognized, and the rules and
customs of miners in any particular district were enforced as
valid.” Id. at 62. In 1866 and 1870, Congress stepped in and
passed two statutes that expressly incorporated local customs
regarding mining rights. See Lode Law of 1866 § 1, ch. 262,
14 Stat. 251, 251; Placer Act of 1870 § 12, ch. 235, 16 Stat.
217, 217. Then came the Mining Law of 1872 — the source of
the dispute before us.
A. The Mining Law
The Mining Law of 1872 permits companies or individuals
to file mining claims to gain rights to mineral land owned by
the federal government. 30 U.S.C. § 23. Each mining claim

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3
can encompass up to approximately 20 acres of mineral land.
Id. §§ 23, 35. Section 42 of the Mining Law allows mining
claimants to also claim nonadjacent, nonmineral land to
support their mining operations — i.e., “for mining or milling
purposes” — subject to requirements to survey the land and
provide notice of the claim. Id. § 42. Such land is called a
“mill site,” and no mill-site claim can exceed five acres. Id.
Although miners have options other than Section 42 to obtain
public, nonmineral land to support their mining claims —
including land exchanges, permits, or leases, see 43 U.S.C.
§§ 1716(a), 1732(b) — Section 42 allows them to possess mill
sites at no cost, aside from a few hundred dollars in processing
fees.2 See Bureau of Land Management, Mining Claim Fees,
https://perma.cc/Q8R8-4A7K (last visited May 24, 2024).
Alternatively, mining companies can, and have, acquired
private rather than public land to facilitate their mining
operations.
Section 42(a) of the Mining Law imposes the five-acre
limit on mill sites with respect to “lode claims” — i.e., mining
claims based on veins or lodes of minerals found in rocks (such
as gold, silver, tin, or copper). See Mining & Land Records
System, What Are the Different Types of Mining Claims or
Sites? (Jun. 16, 2023), https://perma.cc/WH5A-2ZM4. Lode
2 The Mining Law also grants mining claimants the ability to
“patent” (i.e., acquire title to) the land, at a cost of only five dollars
per acre, 30 U.S.C. § 29, but Congress has imposed a moratorium on
such patents since 1994. See Wyo-Ben Inc. v. Haaland, 63 F.4th 857,
861–62 (10th Cir. 2023).

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4
claims cannot exceed 1,500 by 600 feet, or approximately 20
acres. 30 U.S.C. § 23. Section 42(a) reads as follows:
(a) Vein or lode and mill site owners eligible
Where nonmineral land not contiguous to
the vein or lode is used or occupied by the
proprietor of such vein or lode for mining
or milling purposes, such nonadjacent
surface ground may be embraced and
included in an application for a [claim] for
such vein or lode, and the same may be
[claimed] therewith, subject to the same
preliminary requirements as to survey and
notice as are applicable to veins or lodes;
but no location made on and after May 10,
1872, of such nonadjacent land shall
exceed five acres, and payment for the same
must be made at the same rate as fixed by
sections 21, 22 to 24, 26 to 28, 29, 30, 33 to
48, 50 to 52, 71 to 76 of this title and section
661 of title 43 for the superficies of the
lode. The owner of a quartz mill or
reduction works, not owning a mine in
connection therewith, may also receive a
patent for his mill site, as provided in this
section.
Id. § 42(a) (emphasis added).
In 1960, Congress amended the Mining Law to also allow
mill-site claims in association with “placer claims” — i.e.,
mining claims targeted at loose, unconsolidated materials (such
as gravel by a river that might contain minerals). See Pub. L.
No. 86-390, 74 Stat. 7, 7 (1960); Mining & Land Records
System, What Are the Different Types of Mining Claims or

-- 24 of 43 --

5
Sites? (Jun. 16, 2023), https://perma.cc/WH5A-2ZM4. Placer
claims are limited to 20 acres in size. 30 U.S.C. § 35. The
1960 amendment added what is now Section 42(b), which
adopts language similar to that used in Section 42(a) to impose
a five-acre limit on “placer claim” mill sites:
(b) Placer claim owners eligible
Where nonmineral land is needed by the
proprietor of a placer claim for mining,
milling, processing, beneficiation, or other
operations in connection with such claim,
and is used or occupied by the proprietor
for such purposes, such land may be
included in an application for . . . such
claim, and may be [claimed] therewith
subject to the same requirements as to
survey and notice as are applicable to
placers. No location made of such
nonmineral land shall exceed five acres and
payment for the same shall be made at the
rate applicable to placer claims which do
not include a vein or lode.
Id. § 42(b) (emphasis added).
B. Agency Interpretations of Section 42
The parties agree that Section 42 restricts a single mill site
to no more than five acres. The dispute before us concerns
whether mining claimants are limited to a total of five acres of
mill-site land per mining claim; or if Section 42 allows miners
to claim an unlimited number of mill sites, so long as each
claimed mill site is no greater than five acres in size. Although
the 2003 Rule challenged in this appeal adopts the “unlimited-
mill-sites” interpretation, and the Department of the Interior

-- 25 of 43 --

6
(“DOI” or the “Department”) now defends that reading, the
agency also has endorsed the “five-acres-in-total” approach at
other points in time.
In the first few decades after the enactment of the Mining
Law, the DOI interpreted the statute in administrative
proceedings to allow a total of five acres of mill-site land per
mining claim. Specifically, in J.B. Hoggin, 2 Pub. Lands Dec.
755 (1884), the Department permitted multiple mill sites, but
only if the collective size of the mill sites did not exceed five
acres. And in Hecla Consolidated Mining Co., 12 Pub. Lands
Dec. 75 (1891), the Department held that a claimant could not
claim additional mill sites simply because its existing, five-acre
mill site was insufficient. At that time, the “typical mine” was
“relatively small, and the surface of the mining claims together
with the incident [five-acre-maximum] mill sites adequately
served the needs of the mines for plant facilities and waste
disposal areas.” Twitty, Sievwright & Mills, Legal Study of the
Nonfuel Mineral Resources: Prepared Under Contract with the
Public Land Law Review Commission, Vol. III 1047 (1970).3
In the mid-twentieth century, however, the mining
industry — and the Department’s interpretation of the Mining
Law — evolved. As underground mines near the surface
became “mined out” and technology advanced, mines grew
larger and deeper. Twitty, Sievwright & Mills at 1047–48. As
a result, modern mining operations required “much larger areas
3 The five-acres-in-total reading of Section 42 persisted into the
early twentieth century. Scholars of that era who wrote about the
Mining Law also adopted the more restrictive understanding of the
five-acre provision. See Curtis H. Lindley, A Treatise on the
American Law Related to Mines and Mineral Lands 1175 (3d ed.
1914) (“It has been held that a lode proprietor may select more than
one tract if the aggregate does not exceed five acres . . . .”).

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7
than formerly for the disposal of [waste].” Id. at 1048. In short,
the mining industry needed more land. And the DOI adopted
an unlimited-mill-sites policy to accommodate that need.
Beginning in 1954 and continuing into the 1990s, manuals
published by the Bureau of Land Management (“BLM”), an
agency within the DOI, consistently allowed for an unlimited
number of mill sites associated with a single mining claim, so
long as no individual mill site exceeded five acres. See J.A.
763–64 (examining BLM Manuals from throughout the second
half of the twentieth century). Under that unlimited-mill-sites
interpretation, miners could claim as much mill-site land as
needed to support mining operations, provided that the
claimants did so in five-acre increments. See id. The new
policy in the BLM Manuals met the demands of modern
mining, which calls for hundreds or even thousands of acres to
accommodate activities such as waste-rock disposal. See id. at
759 n.15 (2003 Secretarial Opinion noting that, according to
one 1966 study, “a miner would need 252 acres of surface area
to excavate a 23-acre low-grade disseminated-copper ore body
from under 400 feet of overburden”); cf. Ctr. for Biological
Diversity v. Fish & Wildlife Serv., 33 F.4th 1202, 1224 (9th Cir.
2022) (rejecting attempt by mining claimant to “permanently
occupy 2,447 acres of National Forest land with its waste
rock”). But for many decades, the DOI published no
regulations or Secretarial Opinions that took a formal position
on the proper interpretation of the five-acre limit in the Mining
Law’s mill-site provision.
In 1997, that changed. After decades of allowing
unlimited five-acre mill sites per mining claim, the DOI
reversed its approach and returned to its original understanding
of the Mining Law, issuing an opinion that adopted the more
restrictive five-acres-in-total interpretation of the statute
(“1997 Opinion”). In the 1997 Opinion, the Solicitor of the

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8
DOI — the agency’s legal counsel — determined that Section
42 “provides that only one millsite of no more than five acres
may be patented in association with each mining claim.” J.A.
517. The Opinion clarified: “[W]hile only a total of five acres
per [mining] claim may be patented as a millsite, that five acres
may be broken up into more than one millsite claim.” Id. The
Solicitor directed the Department to “reject those portions of
millsite patent applications that exceed this acreage limitation.”
Id. The Secretary of Interior concurred in the Opinion, id. at
531, making it “binding . . . on all other Departmental offices
and officials” and subject to being “overruled or modified only
by the Solicitor, the Deputy Secretary, or the Secretary.” Dep’t
of Interior Departmental Manual, 209 DM 3.2(11) (1992)
(available at https://perma.cc/U2KS-45TC).
Two years later, the DOI proposed a rule that would have
codified the five-acres-in-total interpretation advanced by the
1997 Opinion. Specifically, the 1999 Proposed Rule included
the following language:
§ 3832.32 How much land may I include in
my mill site?
A mill site must not exceed 5 acres in size.
You may locate more than one mill site, so
long as you do not locate more than an
aggregate of 5 acres of mill site land for
each 20-acre parcel of patented or
unpatented placer or lode mining claims
associated with that mill site land,

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9
regardless of the number of lode or placer
claims located in the 20-acre parcel.
J.A. 807.
The 1997 Opinion and 1999 Proposed Rule caused an
industry firestorm because mining projects that relied on many
acres of mill-site land would not be approved under the new
interpretation. In 1999, the DOI further panicked industry
participants by rescinding its approval of certain claims
associated with the Crown Jewel mine, a substantial mining
project, “based on the Solicitor’s [1997] Opinion.” J.A. 126.
As a result of that rescission, one company involved in the
Crown Jewel venture lost over $100 million in market
capitalization and “its share price sank to an all time low.” Id.
at 127.
Congress intervened, passing two appropriations riders
that addressed the approval of mill-site claims. First, it
prohibited the DOI from applying the 1997 Opinion
retroactively, including to the Crown Jewel venture, mandating
that the agency could not rely on the Opinion to deny any
applications and plans of operations that were submitted before
its issuance. Emergency Supplemental Appropriations of
1999, Pub. L. No. 106-31, §§ 3006(a), (c), 113 Stat. 57, 90–91.
Then, Congress delayed implementation of the 1997 Opinion,
prohibiting BLM and the Forest Service from spending
appropriated funds in fiscal years 2000 and 2001 to deny
certain applications based on the Opinion. Consolidated
Appropriations Act of 2000, Pub. L. No. 106-113, § 337(a),
113 Stat. 1501, 1501A–199 (1999). Congress noted that this
second piece of legislation should not be “construed as an
explicit or tacit adoption, ratification, endorsement, approval,
rejection or disapproval” of the 1997 Opinion. Id. § 337(b).
Notably, Congress chose to limit the time frames for applying

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10
the 1997 Opinion, but it did not override or alter the Opinion’s
interpretation of the Mining Law.
In October 2003, the DOI again reversed course. It issued
a new opinion adopting the unlimited-mill-sites interpretation
of Section 42 (“2003 Opinion”). In the 2003 Opinion, the
Solicitor took the position that Section 42 “does not
categorically limit the number of mill sites that may be located
and patented to one for each mining claim.” J.A. 741. That
Opinion described the 1997 Opinion as “represent[ing] a
departure from the Department’s settled administrative
practice and interpretation.” Id. The Secretary of Interior again
concurred, id. at 780, making the opinion binding on the
Department, see Dep’t of Interior Departmental Manual, 209
DM 3.2(11) (1992).
Shortly after the Department issued the 2003 Opinion, it
promulgated the final 2003 Rule, at issue here, which adopted
the unlimited-mill-sites interpretation of the Mining Law. See
68 Fed. Reg. 61,046–81 (Oct. 24, 2003) (“2003 Rule”). The
2003 Rule was the end product of the rulemaking initiated by
the 1999 Proposed Rule, which had proposed to codify the five-
acres-in-total reading of the Mining Law. Id. at 61,047–48;
J.A. 807. The 2003 Rule stated:
§ 3832.32 How much land may I include in
my mill site?
The maximum size of an individual mill
site is 5 acres. You may locate more than
one mill site per mining claim if you use
each site for at least one of the purposes
described in § 3832.34 of this part. You
may locate only that amount of mill site
acreage that is reasonably necessary to be
used or occupied for efficient and

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11
reasonably compact mining or milling
operations.
43 C.F.R. § 3832.32. In other words, the 2003 Rule allows a
mining company to claim a potentially unlimited amount of
mill-site land (in five-acre increments) in association with a
single mining claim.
II. Standard of Review
Appellants argue that the 2003 Rule should be set aside
under the Administrative Procedure Act because the Rule’s
adoption of the unlimited-mill-sites interpretation of Section 42
is contrary to law. See 5 U.S.C. § 706(2)(A) (A court must
“hold unlawful and set aside agency action” that is “not in
accordance with law.”). Of course, if “the agency’s decision is
based on an erroneous view of the law, its decision cannot
stand.” Transitional Hosps. Corp. of La. v. Shalala, 222 F.3d
1019, 1024 (D.C. Cir. 2000) (cleaned up); see also Am.
Petroleum Inst. v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995)
(noting that agency action is contrary to law if it goes against a
statute’s clear meaning).
In determining the meaning of the 1872 Mining Law, “we
must employ all the tools of statutory interpretation, including
text, structure, purpose, and legislative history.” Loving v. IRS,
742 F.3d 1013, 1016 (D.C. Cir. 2014) (cleaned up). We must
interpret the statutory text “consistent with [its] ordinary
meaning at the time Congress enacted the statute,” Heating, Air
Conditioning & Refrigeration Distributors Int’l v. EPA, 71
F.4th 59, 67–68 (D.C. Cir. 2023) (cleaned up); and we must
keep in mind that “public land statutes should be interpreted in
light of the condition of the country when the acts were
passed,” Amoco Prod. Co. v. S. Ute Indian Tribe, 526 U.S. 865,
875 (1999) (cleaned up). When interpretative tools render the
statute’s meaning clear, we “must give effect to Congress’s

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12
unambiguously expressed intent.” AFL-CIO v. FEC, 333 F.3d
168, 172 (D.C. Cir. 2003). Under such circumstances, no
deference is due to an agency’s reading of a statute. See id. at
172–73.
III. Analysis
Applying the traditional tools of statutory interpretation,
the meaning of the 1872 Mining Law is clear: The provision
imposes a five-acre limit on the total amount of mill-site land
per mining claim. The text, structure, and purpose of the
statute, as well as the history against which it was enacted and
congressional practice after the law was ratified, all support the
five-acres-in-total interpretation. Cf. CFPB v. Cmty. Fin.
Servs. Ass’n of Am., Ltd., 601 U.S. 416, 426 (2024) (looking to
“the Constitution’s text, the history against which that text was
enacted, and congressional practice immediately following
ratification” to interpret the Appropriations Clause); Loving,
742 F.3d at 1016 (“[W]e must employ all the tools of statutory
interpretation, including text, structure, purpose, and
legislative history.” (cleaned up)).
A. Statutory Text
Statutory interpretation must begin with the statute’s text.
See, e.g., Bellagio, LLC v. NLRB, 863 F.3d 839, 847 (D.C. Cir.
2017). If that language is unambiguous, the inquiry can end
there. Schindler Elevator Corp. v. U.S. ex rel. Kirk, 563 U.S.
401, 412 (2011); Chao v. Day, 436 F.3d 234, 235 (D.C. Cir.
2006). In relevant part, Section 42(a) states that when making
a mining claim, “nonmineral land not contiguous” with the
mining claim can also be claimed if it is “used . . . for mining
or milling purposes,” but “no location . . . of such nonadjacent
[mill-site] land shall exceed five acres.” 30 U.S.C. § 42(a); see
also id. § 42(b) (“No location made of such nonmineral land

-- 32 of 43 --

13
shall exceed five acres . . . .”).4 The first phrase of the
provision describes the mill-site land that can be claimed — it
must be nonmineral, noncontiguous to the mining claim, and it
must be used for “mining or milling purposes.” The second
phrase specifies that “such nonadjacent land shall [not] exceed
five acres.” The most natural reading of “such nonadjacent
land” in the second phrase is that it refers to the previously
described mill-site land — the “nonmineral land not
contiguous” with the mining claim, which is “used for mining
or milling purposes.” See A Dictionary of the English
Language (Webster, et al., eds.) (1872) (defining “such” as
“[o]f that kind; of the like kind,” “[o]f a character specified,”
or “[t]he same that”); see also Antonin Scalia and Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 78
(2012) (“Words must be given the meaning they had when the
text was adopted.”). Because the description of mill-site land
in the first phrase encompasses all of the nonmineral land that
can be claimed in connection with a particular mining claim,
so too does the second phrase which states that “such
nonadjacent land” may not “exceed five acres.” Thus, the
statute plainly limits the total amount of mill-site land to five
acres per mining claim. Although Appellants do not argue that
the statute should be interpreted in precisely this way, a party
cannot forfeit the plain meaning of a statute. See UC Health v.
NLRB, 803 F.3d 669, 679 n.5 (D.C. Cir. 2015) (“[P]arties
cannot waive the correct interpretation of the law by failing to
4 Section 42(b) reflects the 1960 amendment, in which Congress
adopted a five-acre limit on each mill site associated with a placer
claim. The language in subsections (a) and (b) of Section 42 is
similar, and there is no reason to think that Congress intended the
later-added subsection (b) to bear a distinct interpretation of the five-
acre limit on mill sites. I therefore focus on the text of subsection
(a), the provision that was first enacted in 1872, as well as original
intent and original public meaning in 1872.

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14
invoke it.” (cleaned up)); EEOC v. FLRA, 476 U.S. 19, 23
(1986) (same).5
B. Statutory Context and Structure
Although the meaning of the statutory text is plain, which
may be enough in itself, see Chao, 436 F.3d at 235, the statute’s
context and structure also support the five-acres-in-total
interpretation of Section 42. See Loving, 742 F.3d at 1016
(listing “structure” as among the “tools of statutory
interpretation”); Kiewit Power Constructors Co. v. Sec’y of
Lab., 959 F.3d 381, 395 (D.C. Cir. 2020) (“[T]o assess the
plainness or ambiguity of statutory language, we must also
consider the broader context of the statute as a whole.” (cleaned
up)).
5 The majority relies on the words “no location of” in the statute,
noting that “no location of” mill-site land can exceed five acres and
asserting that the definition of “location” is “[t]he marking out or
surveying of a tract of land (esp. of a ‘claim’) or a settlement.” See
30 U.S.C. § 42; Maj. Op. at 12. Those words do not necessarily
support a reading that multiple five-acre mill sites are permissible.
As discussed, the statute’s use of “nonadjacent land” refers to all of
the mill-site land that can be claimed in connection with an
individual mining claim. Thus, even under the majority’s
interpretation, when the statute says “no location . . . of such
nonadjacent [millsite] land shall exceed five acres,” it simply means
that a mining claimant can “locate” — that is, “mark[] out or survey”
— no more than five acres of mill-site land in total. To the extent
that the majority’s focus on “location” addresses the number of mill
sites that can be claimed, it appears to allow just one mill site per
mining claim and does not support the unlimited-mill-sites
interpretation. In any event, the five-acres-in-total interpretation is
the most natural reading of the statute and fits most comfortably with
the structure and history of the law discussed infra, which the
majority opinion does not meaningfully consider.

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The primary focus of the Mining Law is to “promote the
development of the mining resources of the United States,” 45
Cong. Globe, 42d Cong., 2d Sess. 395 (1872), by earmarking
public mineral lands for mining purposes, 30 U.S.C. § 21, and
declaring all public mineral deposits open to exploration and
purchase, id. § 22. In alignment with that purpose, most of the
statute is devoted to the regulation of mineral land — that is,
the making and administration of mining claims. See generally
30 U.S.C. § 21 et seq. In the statutory scheme, mill sites play
a supporting role to mining claims, which are the real stars of
the show — mill sites essentially are “add-on” grants of
nonmineral land, which are used to facilitate the extraction of
minerals pursuant to the mining claims. See id. § 42 (allowing
claimants to “include[]” a mill-site claim in an application for
a mining claim); Alaska Copper Co., 32 Pub. Lands Dec. 128,
129–30 (1903) (DOI opinion stating that the mill-site
provision’s “manifest purpose is to permit [a mining claimant]
to acquire a small tract of non-contiguous, non-mineral land as
directly auxiliary to the prosecution of active mining operations
upon his lode claim, or for the erection of quartz-mills or
reduction works for the treatment of the ore produced by such
operations”).
Moreover, the statute takes pains to limit the size of public
land grants: Lode mining claims may not exceed 1500 feet by
600 feet (approximately 20 acres), 30 U.S.C. § 23; placer
mining claims may not exceed 20 acres, id. § 35; and mill sites
may not exceed five acres, id. § 42. Interpreting Section 42 to
impose a five-acres-in-total limit on mill sites appropriately
reflects the intended relationship between the two types of
claimed land, mineral and nonmineral, and gives effect to the
size constraints explicitly delineated by Congress. By contrast,
allowing miners to claim multiple five-acre mill sites means
that the mill-site land — which is intended to support the
associated mining claim — can instead dwarf the mining claim

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in size. While a single mining claim can encompass only about
20 acres, the unlimited-mill-sites approach allows mining
companies to claim hundreds or thousands of acres of related
mill-site land. In short, permitting an unlimited number of mill
sites is contrary to the structure of the statute and deprives the
five-acre constraint of any real meaning. See Life Techs. Corp.
v. Promega Corp., 580 U.S. 140, 147 (2017) (“[W]e should
favor an interpretation that gives meaning to each statutory
provision.”); Donnelly v. FAA, 411 F.3d 267, 271 (D.C. Cir.
2005) (“We must strive to interpret a statute to give meaning to
every clause and word . . . .”).6
C. Historical Evidence
1. Original Intent and Original Public Meaning
The proper reading of the statute becomes even clearer
when we consider the historical record. Importantly, we must
adopt the ordinary meaning of the statute at the time it was
written — 1872 — and “in light of the condition of the country
when the act[] w[as] passed.” Amoco Prod. Co., 526 U.S. at
875 (cleaned up); Heating, Air Conditioning & Refrigeration
Distributors Int’l, 71 F.4th at 67–68 (looking to the “ordinary
meaning at the time Congress enacted the statute”). Indeed, we
6 The five-acre limitation is not entirely superfluous under the
unlimited-mill-sites approach because each mill-site claim is still
limited to five acres and the “amount of mill site acreage . . . [must
be] reasonably necessary to be used or occupied for efficient and
reasonably compact mining or milling operations.” 43 C.F.R.
§ 3832.32; see 30 U.S.C. § 42. The Department asserts that, as a
result, the provision forces a claimant to justify the milling purposes
of the mill-site land on a five-acre-by-five-acre basis. But that is no
meaningful restraint on miners who claim huge swaths of mill-site
land that will be used to dispose of waste rock. In practice, the 2003
Rule reads Congress’s carefully prescribed limits out of the statute.

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must “interpret[] a statute in accord with the ordinary public
meaning of its terms at the time of its enactment.” Bostock v.
Clayton Cnty., Ga., 590 U.S. 644, 654 (2020); see also Me.
Lobstermen’s Ass’n v. Nat’l Marine Fisheries Serv., 70 F.4th
582, 595 (D.C. Cir. 2023) (“We give the [statutory] term its
ordinary, contemporary, common meaning.” (cleaned up)).
We also should give effect to the original intent of the Congress
that enacted the legislation. See FBI v. Abramson, 456 U.S.
615, 644 (1982) (O’Connor, J., dissenting) (“Our task is solely
to give effect to the intentions, as best they can be determined,
of the Congress that enacted the legislation.”); AFL-CIO, 333
F.3d at 172 (noting that we “must give effect to Congress’s
unambiguously expressed intent”). Here, the original intent of
Congress and the original public meaning in 1872 favor the
five-acres-in-total approach.
At the time that Section 42 was first enacted, the standard
mining claim — limited to approximately 20 acres in size —
did not need more than five acres of mill-site land to support it.
See Twitty, Sievwright & Mills at 1047; Alaska Copper Co.,
32 Pub. Lands Dec. at 130 (“The area of such additional tract
is by the terms of the statute restricted to five acres, as
obviously ample for either purpose [of a mill site].”). And
while the purpose of the Mining Law was to “promote the
development of the mining resources of the United States,” 45
Cong. Globe, 42d Cong., 2d Sess. 395 (1872), that goal places
particular weight on ensuring that mineral land will be devoted
to mining purposes. See Watt, 462 U.S. at 47 n.8 (“[M]ineral
land was exempted from the homestead laws, from statutes
granting lands to railroads, and from a statute granting land to
states for agricultural colleges. If land was classified as
mineral land, it could not be conveyed under these statutes.”
(citations omitted)); United States v. Coleman, 390 U.S. 599,
602 (1968) (“Under the mining laws Congress has made public
lands available to people for the purpose of mining valuable

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mineral deposits and not for other purposes.”). Nonmineral
land was not the focus of the law, and such public land had, and
still has, other valuable uses — such as supporting homesteads,
railroads, and public universities. See Watt, 462 U.S. at 47 n.8.
Congress had no reason in 1872 to allow vast expanses of
nonmineral land to be appropriated for mining purposes.
The Department’s near-contemporaneous interpretations
of Section 42 after the Mining Law’s passage are powerful
evidence of the statute’s original public meaning. Cont’l
Airlines, Inc. v. DOT, 856 F.2d 209, 217 (D.C. Cir. 1988) (“We
give more weight to [the] contemporaneous interpretation than
to the agency’s current view.”); Bankamerica Corp. v. United
States, 462 U.S. 122, 130 (1983) (noting the Court’s “long-held
policy of giving great weight to the contemporaneous
interpretation of a challenged statute by an agency charged
with its enforcement”). Agency opinions from the relevant era
confirm that the Department understood Section 42 to allow a
total of five acres of mill-site land to be claimed in conjunction
with each individual mining claim.
First, in J.B. Hoggin, a DOI decision from 1884, the
General Land Office initially denied a request for two mill sites
in connection with one lode claim. See J.A. 524. On appeal,
the Secretary reversed and authorized the mill sites because one
was 4.5 acres and the other 0.5 acres, falling within the Mining
Law’s five-acres-in-total requirement. J.B. Hoggin, 2 Pub.
Lands Dec. at 755–56. If multiple mill sites automatically were
allowed, with no limit on total acreage, the DOI would have
had no need to issue such a clarifying opinion.
The DOI reiterated the five-acres-in-total limitation in
Hecla Consolidated Mining Co., 12 Pub. Lands Dec. 75 (1891).
In that case, applicants for a mill site sought additional land
because “[t]he amount acquired under the former mill-site

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claims . . . [wa]s not sufficient for their purposes.” Id. at 77.
But the Department responded by saying that “[t]he law makes
no provision for acquiring land as mill sites additional to or in
connection with existing mill sites, but on the contrary
expressly limits the amount of land to be taken in connection
with a mill to five acres. To allow this application as now made
would be to disregard this limitation.” Id. That articulation of
the five-acres-in-total interpretation of Section 42 could not be
clearer. It does not contemplate granting multiple five-acre
mill sites to address the applicants’ complaint that the amount
of land at their disposal was “not sufficient for their purposes.”
2. Congressional Action and Understanding
Congressional practice after the Mining Law’s enactment
also is instructive. There is no evidence that Congress ever
intended the unlimited-mill-sites meaning. To the contrary,
Congress has understood the five-acres-in-total interpretation
to be the prevailing view of the law and it has never rejected
that approach.
First, Congress apparently assumed that the Mining Law
mandated a five-acres-in-total limit on mill sites when it
amended Section 42 in the mid-twentieth century. In 1959,
Congress began to consider extending mill-site claims to
support placer mining claims, but it refused to adopt a proposed
ten-acre limitation on the size of the mill sites, fearing that it
would allow claimants to receive too much land. J.A. 522
(citing S. Rep. No. 904, 86th Cong., 1st Sess., at 3.). The
proposed language applied to individual claimants (not
claims), and the DOI argued that allowing ten acres for each
claimant would have allowed “a number of individual
claimants to band together to receive far more than 10 acres at
one site.” Id. That would not have been a concern if Section
42 already allowed an unlimited number of five-acre mill sites

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associated with the same mining claim, which would have
enabled routine circumvention of the existing limit. Congress
ultimately adopted a five-acre limit on all placer-claim mill
sites. See 30 U.S.C. § 42(b).
Subsequently, expert reports to Congress on mining and
land use also assumed a five-acres-in-total maximum on mill
sites. In fact, the experts argued that the statutory five-acre
limit on nonmineral land was insufficient to meet the demands
of modern mining.
The 1970 Public Land Law Review Commission Report to
Congress noted that one of the “weaknesses” of the Mining
Law is the “inadequate provision for the acquisition of land for
related purposes such as locating a mill.” One Third of the
Nation’s Land: A Report to the President and to the Congress
by the Public Land Law Review Commission 124 (1970)
(“PLLRC Report”). The PLLRC Report argued that additional
land was needed to “meet all reasonable requirements for a
mineral operation, such as settling ponds, mills, tailing
deposits, etc.” — typical uses of mill sites. Id. at 128. But,
despite the needs of a modern mining operation, the existing
law “allow[ed] only 5 acres for each millsite in addition to the
actual claim acreages, and this clearly has been inadequate in
many cases.” Id. The issue described by the PLLRC Report
presupposed that miners could not stake additional five-acre
mill-site claims to fulfill their needs.
A 1979 study from the congressional Office of
Technology Assessment further supports that view.
Management of Fuel and Nonfuel Minerals in Federal Land
(April 1979). The 1979 report notes that “[t]here are
substantial limitations on the location and use of millsites.” Id.
at 126. Recognizing that “[t]hese limitations were probably not
restrictive in 1872 when mining operations were small,” the

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report notes that modern mining requires much more land to
dispose of “enormous quantities of waste rock and tailings.”
Id. at 127. The current mill-site provision could not satisfy this
demand for surface space as “[t]here could be at most as many
millsites as there are mining claims, and each millsite would be
at most one-fourth the size of the typical 20-acre claim, so that
the millsites, in aggregate, would be one-fourth the size of the
ore body encompassed by the claims.” Id.
Finally, further evidence of Congress’s understanding can
be gleaned from its reaction to the 1997 Opinion, which
adopted the more restrictive, five-acres-in-total interpretation
of Section 42. Faced with industry uproar, Congress acted by
delaying the implementation of the Opinion for two years and
prohibiting its deployment to deny pre-1997 applications.
Emergency Supplemental Appropriations of 1999 § 3006(c),
113 Stat. at 90–91; Consolidated Appropriations Act of 2000
§ 337(a), 113 Stat. at 1501A–199. Tellingly, Congress did not
override or alter the agency’s restrictive interpretation of
Section 42, as reflected in the 1997 Opinion, despite
Congress’s apparent desire to ease the Opinion’s burden on the
mining industry. And yet, if Congress had believed that the
1997 Opinion misinterpreted Section 42, it simply could have
said so. Thus, congressional practices and actions since the
Mining Law’s enactment all point in the same direction — to a
five-acres-in-total reading of the statute.
3. BLM Manuals
The only historical evidence that arguably weighs in favor
of the unlimited-mill-sites interpretation is prior agency
practice, from 1954 until 1997. During that period, BLM
Manuals reflected a policy of allowing mining claimants to
claim an unlimited number of five-acre mill sites in association
with a single mining claim. But that BLM-approved practice

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was adopted long after the statute’s enactment, in response to
new conditions in an evolving industry; and it was not codified
or placed in the federal regulations until the 2003 Rule. Thus,
the BLM Manuals shed no light on the original public meaning
of the 1872 Mining Law. See Amoco Prod. Co., 526 U.S. at
875 (requiring interpretation of public land statutes “in light of
the condition of the country” at the time of enactment (cleaned
up)); Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S.
265, 292 (1995) (Thomas, J., dissenting) (noting that a “later
development could not change the original meaning of the
statute that Congress enacted”). Although the BLM may have
had good reason to accommodate the mining industry’s need
for larger land grants in the twentieth century, “we are not
authorized to rewrite statutory text simply because we might
think it should be updated.” District of Columbia v. Dep’t of
Lab., 819 F.3d 444, 450 (D.C. Cir. 2016); see also id. (“When
a new situation arises outside the scope of an old statute, the
proper approach under our system of separation of powers is
for Congress to amend the statute, not for the Executive Branch
and the courts to rewrite the statute beyond what the statute’s
terms can reasonably bear.”); McGirt v. Oklahoma, 140 S. Ct.
2452, 2474 (2020) (disclaiming the authority to rely on “the
‘practical advantages’ of ignoring the written law”).
* * *
Applying “traditional tools of statutory construction,” I
conclude that Congress “unambiguously expressed [its]
intent,” AFL-CIO, 333 F.3d at 172: Mill-site land cannot
exceed five acres in total per mining claim. The Mining Law’s
text and structure, as well as historical evidence and
congressional practice after the law’s enactment, all weigh
heavily in favor of the more restrictive reading of the mill-site
provision. Because the majority fails to give effect to the clear
meaning of the statute, I respectfully dissent. I would reverse

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the district court’s entry of summary judgment in favor of
BLM, and I would remand with instructions to vacate the 2003
Rule as contrary to law.

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