Eminent domain and Virginia’s ban on uranium mining

Coles Hill Since 1800

Despite the currently abysmal state of the market, Virginia Uranium Inc. (VUI), owner of the 119-million pound deposit at Coles Hill, continues legal efforts to overturn the ostensibly temporary moratorium on uranium mining in the Commonwealth of Virginia.

The most recent step in the process for overturning the moratorium, first established in 1982 pending the creation of a regulatory regime, was a pre-trial hearing during the first week of October on a lawsuit in which VUI is charging that the rule violates the state’s constitution.

Specically, VUI’s legal team argued that the prohibition on extracting uranium amounts to a regulatory taking of private property without proper compensation.

But state Assistant Attorney General Duncan Pitchford asserted that eminent domain is allowed when needed to protect the public’s health and safety and that Virginia lawmakers ful lled their responsibilities by imposing the ban.

VUI asked Judge Chadwick Dotson to require that the government clarify its assertion that the legislature has determined that moratorium is needed to protect public health.

It’s worth noting that the legislature’s only recent action regarding the moratorium was to fail to vote on a bill that would have lifted it. The measure was proposed and actively discussed in a variety of public forums, but the bills were never brought to the floor.

After his 2013 election, Gov. Terry McAuliffe (D) vowed to veto any legislation that lifted the ban. His four-year term ends in January 2018, just 15 months from now.

According to John Ohlendorf, one of the attorneys on the VUI team, VUI would like Judge Dotson to force the government to be specific about the supposed health risks associated with uranium processing and tails storage.

Ohlendorf agreed that an argument can be made that the Atomic Energy Act preempts state responsibility in judging whether those portions of uranium mining activity are being done safely.

Property Rights Protection

VUI attorneys may have a point. Via a 2012 ballot initiative, 75% of Virginia voters approved a constitutional amendment that tightly limits the criteria by which governments can exercise their eminent domain.

The amendment also made it more clear that government restrictions that limit full property value qualify as takings that deserve compensation.

Ohlendorf told me that the Attorney General’s office apparently believes it preserved the status quo, a position that could be bolstered by the lack of related case law or precedent as the amendment is only four years old.

He and other members of the plaintiff team are looking forward to the opportunity to help the state better understand what the voters wanted when they passed the initiative on eminent domain.

The new statute allows its exercise only “where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use.”

Uranium Politics Making News Again

Meanwhile, two challengers vying to represent the fifth district in the Virginia House of Delegates believe that uranium mining remains a issue for which continued support of the ban equals more votes.

Democrat Jane Dittmar is running a television and YouTube ad called “Doing,” with background text saying that Republican Tom Garrett supports uranium mining.

Her campaign staff said the support is a result of two $1,000 contributions, one in 2011 and one in 2012, made by VUI while Garrett occupied a seat in the commonwealth’s senate.

According to the Democrat, Garrett’s vote on HB179, the bill that established the Virginia Nuclear Energy Consortium and the Virginia Nuclear Energy Consortium Authority, proved he supports uranium mining.

Garrett’s campaign issued a strong denial, saying he never voted to lift the uranium mining ban. According to communications director Andrew Griffin, HB179 said nothing about removing the moratorium.

Bearing Drift, a conservative Virginia blog, noted and condemned Garrett’s decision to claim he opposes uranium mining. According to Shaun Kenny, the author of the piece, uranium “rocks.”

Virginia Company Sells to Uranium Miners

An editorial in the Richmond Times-Dispatch noted that a press release from Gov. McAuliffe took credit for a recent $300,000 sale by Ceramic Technology. That 32 year-old company sells ceramic coated fabrications initially developed for the coal mining industry.

The editor criticized the governor for claiming that Ceramic Technology’s sale was a direct result of the company’s participation in the Go Global with Coal & Energy Technology (GGCET) program. GGCET supported a sales trip to Canada, providing an opportunity for Ceramic Technology to pitch its valuable products to the gold and uranium mining industry.

Yet McAuliffe continues to oppose the development of the multi- billion dollar uranium deposit located less than 200 miles from Ceramic Technology’s Cedar Bluff fabrication facility.

Developing that deposit will require millions of dollars in equipment that could be supplied by Virginia’s experienced mining industry. Digging rocks out of the ground is a Virginia core competency.

As Ohlendorf said, uranium has been patiently waiting in the ground at Coles Hill for a long time. Until it has been mined, there will be continuing efforts to unlock its value.

Note: A version of the above was first published by Fuel Cycle Week. It is reposted here with permission.