TIME TO END 135 YEARS OF EXPLOITATION

Mining Law Reform Is a No-Brainer

By Bill Schneider, 11-15-07

You have to admire staying power, and there's probably no better example than the General Mining Law of 1872. (No, that isn't one of my typos. It's 1872, not 1972.)

This law, which is an embarrassment to a civilized society, has been on the books for 135 years. The mining industry aided by their republican faithful has spiked dozens of attempts to repeal or reform it, but now, finally, even though it's about a century too late, it looks like some rational regulation of mining our public lands might happen.

For those who aren't familiar with the General Mining Law of 1872, it was passed at a time when conquering the western wilderness was our primary goal. To do this, our visionary lawmakers at the time, decided they should give away minerals on our public lands and the land itself to miners to foster development of the new frontier, allow miners to pillage many thousands of acres, take the gold, silver and other minerals, and pay nothing for them--and with no requirement to clean up the mess, reclaim the landscape, close the roads, or keep acid mine waste from killing watersheds.

Perhaps more disgraceful, the law allowed miners to patent mining claims for a pittance and make them private land. Most so-called "in-holdings" you see in our national forests and other federal land are patented mining claims that now have nothing to do with mining and have evolved into cabin or trophy home sites.

	Acid mine waste pouring into a tributary of the Blackfoot River from the abandoned Mike Horse Mining Complex near Lincoln, Montana. Photo Courtesy of Earthworks.

And as a crowning insult, most gold mined from public land goes to make gold chains and rings, something we probably could live without, right?

If it isn't obvious, I take mining law reform personally, but for good reason. My favorite place near Helena, Crow Creek Falls, was dredged and befouled to a point where I became ill when I saw the aftermath (click here to read why), all because of this archaic law and one small miner who thought there might be gold in the sparkling pool under those falls. My forefathers owned Crow Creek Falls, and I'm convinced they wanted it kept in the public trust for the enjoyment for future generations, not given away to miners.

Eventually, we did the right thing at Crow Creek Falls. We bought it back and reclaimed it and gave it back to the people, but sadly, the travesty of Crow Creek Falls has been played out thousands of times in thousands of pristine places over the decades, with perhaps the most visible travesty-to-be right now being the massive Pebble Mine in Alaska. Or closer to home, over in the Cabinet Mountains Wilderness Area in far western Montana, the Rock Creek Mine, where miners plan to drill into the designated Wilderness.

And with gold worth $804 per ounce today, we can expect even more mines to open up, making reform even more timely and critical.

Sorry for all that gloom-and-doom, but alas, I also have good news. We should be thrilled with the news that on November 1, the U.S. House of Representatives passed, by a 244-166 margin, with 24 republicans voting with the majority, H.R. 2262, the Hardrock Mining and Reclamation Act of 2007.

During the Clinton Administration, objections to the exploitive law became so vocal that the federal government placed a moratorium on the patenting of mining claims. Then, during the early years of the Bush Administration, led by California republican Richard Pombo, Congress tried to lift this moratorium. Environmentalists barely fought back Pombo's plan, and then threw him out of office in 2006 in the Blue-Green Revolution, keeping the moratorium in place.

"But this moratorium can be lifted at any time," reminds Land Tawney, who is senior manager for a new coalition called Sportsmen United for Sensible Mining, which is a partnership between the National Wildlife Federation, Theodore Roosevelt Conservation Partnership and Trout Unlimited. "H.R. 2262 makes this moratorium permanent."

In an interview with NewWest.Net, Tawney explained that the bill also makes hardrock miners pay, for the first time, a royalty (4 percent for existing mines and 8 percent for new mines based on "net smelter return") with 70 percent of the money going to states for abandoned mine reclamation and 30 percent to affected communities to ease the impact of predictably boon-and-bust mining development. (Miners of coal, oil and gas, incidentally, pay a 12 percent royalty.)

Tawney also points out that H.R. 2262 protects "special places," like wilderness and roadless areas and gives public land managers the ability to say no to a mine--an option, incredibly, they don't have under the 1872 law. "If this were the case, the Rock Creek Mine could be avoided all together," Tawney notes.

Now mining reform goes to the U.S. Senate--and with a good political tailwind. Tawney expects a formal bill to be introduced in January with hearings and a vote shortly thereafter.

"I think we'll get it through the Senate," Tawney predicts. "Senate majority leader Harry Reid (D-NV) wants a mining reform bill passed in this Congress, but we aren't sure what the Senate bill will look like."

Why this level of success when so many other sincere efforts have failed? Tawney credits the strong support from hunting and fishing groups. "The sportsmen are really stepping up for the first time," he boasts, "and we have bipartisan support."

Here's what he's really saying. Through the years, mainstream environmental groups such as the Audubon, Sierra Club, and Natural Resources Defense Council have fought the battle for mining law reform while many hunters and anglers watched from the sidelines, but this time, it's different. Sportsman United for Sensible Mining and twenty hunting and fishing organizations, including right-leaning groups like the Boone and Crockett Club and Safari Club, have joined the chorus for reform, but conspicuously absent from the list of supporters is the National Rifle Association.

To support his optimism, Tawney points to a strongly worded letter sent by Representatives Paul Ryan (R-WI) and Ron Kind (D-WI), co-chairs of the Congressional Sportsman's Caucus, to all of their colleagues in Congress:

"Public lands harbor some of the most important fish and wildlife habitat and provide some of the finest hunting and angling opportunities in the country," Ryan and Kind wrote. "We write to ask you to join us in taking an important step to benefit fish and wildlife habitat and recreation opportunities by modernizing the 135-year-old mining law.

"It is estimated that since the Mining Law of 1872 was enacted, the U.S. government has given away more than $245 billion of minerals through royalty-free mining and 'patenting,' the forced sale of federal lands," they wrote. "Taxpayers also must bear the costs of cleaning up abandoned hardrock mines, which is expected to exceed $30 billion. H.R. 2262 also would keep public lands in public hands by ending the practice of 'patenting,' which has resulted in more than three million acres of our public lands being practically given away to mining companies for as little as $2.50 to $5 per acre."

It's this kind of bipartisan support that gives Tawney and other conservationists optimism that miners can be brought into the 21st Century with the rest of us. But they still have one big problem, President George W. Bush, who has already indicated he plans to veto the bill. An override would require 290 representatives and 67 senators, "so we have a lot of work to do," Tawney admits.

Let's hope rationality prevails and enough of our elected leaders can finally break free from the age-old stranglehold of the mining industry and override the veto. If not, well, I guess continued devastation and privatizing of our public lands by the mining industry can be another legacy of the Bush Administration. [End of article]

Bill: Good article about this important issue. Yes, I agree, reforming the 1872 mining law is a no-brainer...that precisely the reason (ie no brains) why some folks are against it.

Another no-brainer is keeping our roadless wildlands free of roads and development. That's why someone should ask the National Wildlife Federation's Tom France why he's scaring Senator Baucus and Senator Tester away from supporting roadless legislation before Congress.

See this report put out by the National Research Council: http://books.nap.edu/html/hardrock_fed_lands/index.html

A law like this does not survive this long without suppport of all politicians whatever their species, color, or party loyalty. The report I cite above was issued in 1999 when a democrat was president.

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NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance.
This study was supported by the Bureau of Land Management, Department of the Interior, under assistance award No. 1434-HQ-97-AG-01886. The views and conclusions contained in this document are those of the authors and should not be interpreted as necessarily representing the official policies, either expressed or implied, of the U.S. government.
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What's interesting is that the National Research Council was created by the National Accademy of Sciences which dates back to 1863, before the mining law.

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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce Alberts is president of the National Academy of Sciences...

The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine.
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Take a little drive up Grizzly Gulch outside of Helena and witness the 1872 Mining Law in action - disgusting. It is about time to reform this archaic law. Mining is important, no doubt, but it can be done in a safe manner that won't damage wildlife habitat or fisheries. Check out the Stillwater Mine near Nye for a good example. I just hope these reforms are what we need to bring mining practices into step with the best reclamation - nay - restoration practices around.

If the 1872 Mining Law wasn't around, the Stillwater Mine would not exist. All the law does is allow a miner to claim and then buy the surface estate needed to exercise the claim.
The law was, and is, a good thing. In a historical context, it hired thousands of free geologists to go poke around in the public domain to find stuff a growing nation needed. The incentive was, of course, ownership of what was found, at a reasonable price.
Today, the law does something else, preventing agencies from arbitrarily deciding a mine in a certain location is not okay, especially due to "political pressure."
If a mine jumps through all the hoops, and there can be several hundred permitting hoopies, under the law, agency people cannot simply say, "Oh, but not HERE."
I've run across some pretty irritating examples of the sort of stunts pulled to halt a mine. For example, Crown Butte by Cooke City. The basin is full of old mines, nice and toxic. Would have been a world class operation, probably along the lines of Stillwater as far as stewardship, right next to a National Park where the public just might get an eyeful of modern mine practice.
Oh, heck no, that would mess up the propaganda campaign.
The crux was tailings control. The company wanted to put its dross on a low-slope ridge which would have been the smart thing from a hydrologic and geologic standpoint. But since that land was not claimed land, still public, the agency would not permit use of an appropriate disposal point.
The New York Times won a Pulitzer for its editorials against the mine, the writer had never been to Yellowstone. It wasn't until a couple years after the Otter Creek parcels went to the state that he was FLOWN over the site by an environmental group.
Then there was the gold project in Central Washington. Almost everything was in order except a mill site. The agency would not allow purchase or lease of the ground needed to permit construction of the support buildings. End of project.
As for the bill, it's full of loopholes that you could drive a lawsuit through. That is, if you hate mining.
The gross royalty is way overboard. A net smelter royalty, paid after expenses are factored in, just like corporate income taxes, is more reasonable.
Never mind that profitable mining companies hire "overpaid" often union labor who pay lots of income taxes and don't need much welfare. Never mind that unprofitable mining companies fire all their workers and can't afford to pay for cleanup -- and have no assets that can be seized to fund cleanup.
The bottom line is that hard-rock mining itself will be forced overseas to places with less environmental oversight, and mineral prices in America will enter orbit. That's just so smart, what with the dollar already in the can over oil and all the Chinese toxic junk we buy because we've allowed our manufacturing sector to atrophy.
Nicky Joe Rahall's bill deserves to die in the Senate. It might be the only time Harry Reid will show some real leadership. If it does not, it should be vetoed.

For all the history cripples who read these articles, I have some insight that might temper your ardor.

The 1872 mining law brought some semblance of order to a violent no-laws on public land mining effort. It was in the national interest that mining take place, the mineral discoveries be made, and the US become as self sufficient as possible in metals. Until the discovery of large silver and gold deposits, and then copper, lead, and a host of other heavy metals, this country had to import capital to expand, and metals to manufacture. Mining allowed the US to shed the shackles of European banking and manufacturing, and freed us from having to import raw materials to survive and defend ourselves. The New West was very important to the North being able to finance their effort in the Civil War, as new mining brought specie to the mints in Carson City(1863), Denver(1858) and San Francisco(1854).

Public lands resources brought the US to power in the world. Gold and silver to back paper money. Copper, lead, nickel, manganese, you name it, to enable wide spread and cheap electricity and electrical equipment, the machinery of the industrial revolution. TR and Pinchot surveyed all the possible hydro sites on the public domain, and claimed them all as "Administrative Sites", and built Ranger Stations nearby, just to keep them out of the hands of the JP Morgan and Jay Insull interests, and the Electric Services Corp. monopoly. Abundant lumber from the forests, water to generate power, horses to pull wagons of war, and mounts for soldiers. Sheep for wool, sheepskins, and meat, and the same for cattle. Our public lands were vital to the US and its rise to a world power. Uranium ended WWII, without having an invasion of Japan. All that is the real legacy of our Public Domain lands, and we have to recognize that for all the warts people want to point out today, our public lands and access to their resources have been very, very important to our being the independent and free nation that we are. This very forum is a result of the protection those resources have brought to this country.

Cheap, easy access to these resources, and the drive of economic freedoms and capitalism, molded who were are and were essential in protecting our very existence.

I sort of get tired of the modern day whine about stuff that happened more than 100 years ago. It happened, and we now need to deal with it without whining. If money were an issue in government natural resource use, then we would still be cutting some timber, or at least the amount that would pay the lawyers and consultant fees generated by any attempt to sell some salvage logs. I don't buy the money deal one bit. This country pisses away money and time on crap like an Alzheimered bag lady with a free pass to the Goodwill Store. Quit with the money whine already!

The issue of inholdings was first and foremost a part of a directed plan by Congress to road and utilize public lands by the checkerboard plan of land gifted to road and railroad builders. During the Great Depression, vast numbers of 1/4 sections and larger parcels were bought by the US Govt and brought into the National Forest system, many now part of "Wilderness" in spite of the remains of picket fences, outhouse holes and the detritus of subsistence farming, with things like apple trees and lilac bushes. Mining claims have had their greatest value over time as patented land becoming ski areas, mostly where the rich and famous now can claim a part of high altitude seasonal living. Think Aspen, Telluride, and many others. Those places are not a pox on the environment. They are the font of environmental funding, and Bill, you have to know that. Money talks, and BS walks. The American Way! "Inholdings" are the heart and soul of environmental activism, and not a pox on the earth.

In the real world, our environmental transgressions in the name of mining are collateral damage to having a free and prosperous United States. Instead of beating that dead horse of past actions and non-action, we should be addressing the issue as one that has to become incrementally better for the environment. There needs to be a balance scale of public good and public degradation in any mining venture. You talk about the Pebble Mine proposal in Alaska. That has to have an expansive public hearing process out of Alaska, because the scale of it is so large as not to be comparable to anything that has ever happened. Especially when it is in the watershed that produces 150 million wild salmon every year, and is a poster child for sustainable fisheries in a world greatly wanting for that condion of a resource. That alone should be reason enough to not go ahead with it, and if laws need to be changed to that end, then where in the hell is Congress?

Mining reform is needed. But it has to be such that mining can continue, albeit more tightly controlled for environmental long lasting damage, and the funds for reclamation in escrow, perhaps tax forgiven on earnings. There are a lot of ways to make it happen. When the catalytic converter on your flivver is worth $80 to the scrappers, and the meth heads are stealing sprinkler heads off the pipe and the pipe itself if they can get away with it, you know metals are valuable. We cannot be a nation dependent upon importing all our raw material if only because our labor wage expectations are so high. I only hope that reform is not punative, and instead is incentive to mine in the best known ways to protect water and air. The money issue is nothing. That is why the Congress in the 19th Century made sure 25% of the GROSS RETURNS on resource and use revenue on USFS land stayed in the county of origin. Congress did not want the USFS cutting timber to generate revenue to further government. 25% of the Gross, in their minds, ensured that selling timber would be a money losing venture for the Government. That is what Congress did in the House: propose taxes and tariffs to fund government or not fund government. And a mining reform bill should not be sought as a revenue producer. It should use money as an incentive to mine responsibly, and pay agency expenses to that end.

I would not worry too much about Bush. He is more than a lame duck. He is a shamed duck. His tenure remaining is short, and if the pundits are correct, all parts of law making at the national level will be once again in Democrat hands, and we will have a united stand on tax raising, hand holding, and green issues. The graft and corruption will take just a little bit longer to hit high gear, as it always does. No matter who runs the place, the Pages are always in danger, votes will be bought at every evening lobby get together, and our country will waddle on.

"ll the law does is allow a miner to claim and then buy the surface estate needed to exercise the claim."

I have to disagree with this statement. If by "buy" you mean pay cents on the acre then I guess it's bought, but basically this is a giveaway of public lands, not a sale.

The old saw, Bpaul, is five bucks an acre. Sure, AFTER you've spent millions proving up and on permitting and EISs. How about paying FMV for the current use or classification of the ground, as grazing or forest land?

The above defences of the old mining law are fine proofs why reforming the old law is a "no-brainer." Remember, there are lots and lots of people who believe the Earth is only 4,000 or so years old; stupidity is a lot wider spread than we like to think.

I'm really not trying to be a dick, but again I have to maintain my disagreement Mr. Skinner.

My father and uncles work in environmental engineering, and write EIS's and EIR's. What you pay in these processes is a lot, I'll give you that. But it's not millions, but it is plenty. However, the land is public before the process starts, and is private after the process is over. To my mind that in itself is wrong, no matter how much money is paid.

I prefer the crown system where the land stays publicly owned and the right to work it is leased to individuals, royalties are paid on the money made from that land back to the government. The land isn't sold or given over to the private persons working it.

You are right, there are more costs involved in developing a mine site or even a small placer claim than just the "5 bucks an acre." But the money is paid up front and then the land is gone from the public domain forever. No royalties are built into the system, it just doesn't make sense.

Since I don't know what FMV is I can't address that last question you posed.

Fair Market Value.
As for privatizing public land, the Tenure system would be a good thing. The proposal last year was completely tin-eared. I agree with the idea that federal management is a money pit and a non-starter and that it is kooky to expect Congress to fund an entity that spends 1293 to get 200. (Region Six per thousand feet of harvest).
I'm not crazy about privatizing the public lands, but given the crummy federal management ever since these lands became a political playground for ecos and urban politicians looking for a cheap vote, it would not bother me at all to see those states that want to do so enabled to buy federal lands from Uncle. In Montana, DNRC for all its shortcomings, is far more accountable and effective than USFS.
And PW? Your creationist cheap shot aside, no-brainer is right. Someone with no brains would seek to trash domestic mineral production.
Seems convenient and easy to stick it to a relatively small constituency, those who produce the raw materials everybody else processes and consumes and markets. Well, just you wait. If you aren't smart enough to see what's next, too bad. If you ARE smart enough to see what's next, and don't care, or even look forward to it, that's bad, too, in a different way.

Wild Bill, you have it absolutely right! Reforming or, better, just flat repealing the 1872 Mining Act truly is the right thing to do and has been the right thing to do for about a century or so.

When I was a bureaucrat writing Bureau of Land Management policies back in the 1980s, the Mining Law was the one thing that really tied our hands. If a person locates a valid claim (i.e., a claim with a valuable mineral deposit), all of a sudden that claim overrides every other public value of that land. In practice, even a claim that's not valid can do that, because under existing law and regulations, BLM and the Forest Service won't spend the time and money to challenge the claimant's assertion of a valuable mineral deposit. Most claims are not valid, just a prospector's wishful thinking. But they tie up lands that belong to all of us.

For the comments on how much it costs for an EIS and to get a mine permitted here is a little FYI for you. So far $44 million and counting. Those are US dollars. Everything else has been said that supports the NEED for mining and if no one here has heard it then God help us all.

I am tired of all the complaining that the left puts out about evil republicans estroying the planet. No one wants to poison the land for profit. The mining laws helped Americans build this land. That is why this law will stay on the books and continue to benefit all of us. You act like no benefit was ever recieved from mining claims patented or not. Ever paid taxes on an inholding trophy house? How about paying taxes on the sale of the property? Is your car made from steel, aluminum, copper? You bet it is! The recreational mining claims take in money every year and when the moratoreum is lifted next time there will be those who can pass the prudent man test on their mine and mine or sell it. That put money into the economy in 1872 and THAT WHAT IS IS ALL ABOUT!!!! Wake up America.