Ownership and Development of Rare Earth Elements and Critical Minerals in Mine Drainage in West Virginia

This Article argues in support of recent legislation which clarifies legal title to potentially valuable substances derived from the treatment of mine drainage in West Virginia’s waters. West Virginia University has been researching the commercial viability of extracting rare earth elements and other critical minerals from coal mine drainage and coal mine waste. If successful, the research may foster a new industry and provide citizens and wildlife with cleaner water flowing in West Virginia’s rivers and streams. The West Virginia Legislature was concerned that ownership disputes and litigation might harm the development of this potential resource and enacted statutory provisions clarifying ownership regarding the minerals which are dissolved in the state’s waters. This Article provides the language used in the newly enacted statutory provisions. This Article summarizes relevant common law principles including riparian rights, contract and leasing rights, abandonment, and the rule of capture. The Article also considers existing federal and state statutory duties concerning mining and its adverse effects on the environment. The Article discusses potential challenges to the legislation including takings and the impairment of contracts. The Article argues in support of the legislation and its role in fulfilling state’s legal duties to encourage the removal of pollution from West Virginia’s rivers and streams.