Who had on their 2020 apocalypse bingo card that a company wants to proceed with mining the largest uranium deposit in the United States?

Thankfully, there is currently a moratorium on uranium mining in Virginia, and even more thankfully, a Virginia trial court has rejected a constitutional challenge to Virginia’s uranium mining moratorium brought by a company seeking to exploit a large uranium deposit in Pittsylvania Couny. The trial court’s opinion may be found here.

When people think of Virginia’s mineral resources, they typically think of the coal deposits in the state’s southwestern mountains. Indeed, the state agency that regulates mineral resources, the Department of Mines, Minerals, and Energy, is based in far southwest Virginia for that reason. Less well known are the state’s deposits of uranium. In 1978, a large deposit of uranium was found at a site called Coles Hill in Pittsylvania County, near Danville. When a company began to take steps to develop a mining operation in the area, Virginia passed a statute, found at Va. Code § 45.1-283, to impose a moratorium on any agency accepting permits for uranium mining. That moratorium is, by its terms, temporary: agencies are only barred from accepting permit applications for uranium mining until the General Assembly establishes a statutory program for uranium mining permitting. From a practical standpoint, it has been in place for decades and there is no indication that such a program is in the works.

Once the moratorium was passed in the early 1980s, interest in exploring Virginia’s uranium resources waned, in part because the price of uranium had tumbled. When the price spiked again in the early 2000s, the owners of Coles Hill leased their mineral rights to Virginia Uranium, Inc. Virginia Uranium then launched a lobbying effort to end the moratorium. Those efforts were unsuccessful. Finding no success through the political process, Virginia Uranium resorted to the courts. Its first suit, filed in federal court, argued that the federal Atomic Energy Act preempted the state law moratorium. That suit was argued all the way to the U.S. Supreme Court, resulting in an opinion last year rejecting Virginia Uranium’s claim: Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894 (2019).

The second suit was filed in Virginia state court and initially contained two components: (1) an inverse condemnation claim seeking just compensation for the taking or damaging of Virginia Uranium’s mineral lease; and (2) a constitutional argument that the moratorium unconstitutionally takes Virginia Uranium’s property. The trial court dismissed the inverse condemnation claim in the early stages of the litigation, finding that the claim is time-barred. The second component was tried in July of this year, which led to the circuit court’s recent opinion.

Here are a few gems from the recent trial court opinion detailing just how bad an idea overturning the existing mining moratorium would be:

“The storage of tailings is a potentially dangerous endeavor, even in a dry climate; add in a high water table, water seepage from typical rainfall in addition to significant rain events, and the Commonwealth showed that preventing the seepage and release of radioactive tailings into the water supply and terrain could never be guaranteed. No evidence was presented to rebut that fact; evidence was presented pertaining to uranium mining in dry climates with low water tables, but none to show that uranium mining is being safely conducted elsewhere around the world in a climate similar to that in Virginia.

…

One of these localities that would be directly impacted by radioactive leakage is Virginia Beach. The city, in fact, sponsored a study to look at the effect of contamination on their water supply, which is sourced from Lake Gaston on the Roanoke River. The results of the study showed that a catastrophic event, such as a weather event, would more than likely cause radioactive runoff to pour into the Roanoke River Basin, directly harming the water supply upon which millions rely.”

The circuit court’s opinion ultimately reaches the right result — finding that the moratorium is completely constitutional — but it takes some ominous turns in getting there. Given that the court had previously concluded that any inverse condemnation claim here is time barred, the lengthy passages analyzing different types of takings claims appear to be completely unnecessary and to be counting chickens, or in this case, refined uranium, before it is hatched, err … mined.

Property owners take their rights subject to the state’s overarching power — called the police power — to regulate property to ensure the health, safety, and welfare of the public. The court noted as much, in fact it stated “Whether this occurs as a result of abating a nuisance, or passing statutes or ordinances, the government has the right, authority, and the duty to prevent injury to the public. There can be no greater compelling state interest; but is such an interest achieved by this moratorium and is the moratorium a “public use”? The Court finds that it does and that it is.”

The court went on to state that “There really can be no argument that a moratorium on uranium mining, which is an inherently dangerous activity with potentially dangerous indirect effects, achieves the Commonwealth’s rightful duty to protect the public from injury and to protect the health, safety, and welfare of the citizenry.”

Given that the plaintiffs in this case already litigated the federal case to the U.S. Supreme Court, and given 2020 in general, it would not be surprising if the plaintiffs appealed this ruling.

Ross Greene is a shareholder with Pender & Coward, P.C., and also the editor of this blog. In his right-of-way practice, Ross represents condemning authorities, including state government agencies, utilities, municipalities, and right of way consultants.

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