1872 Mining Law reform a bottomless pit

By Kathy Helms, Diné Bureau, Gallup Independent, February 11, 2008

WINDOW ROCK — The Mining Law of 1872, signed into existence 135 years ago by President Ulysses Grant, is either “the most outdated natural resource law in the nation” and sadly in need of overhaul, or working just fine and any attempt at reform would be “unnecessary, duplicative and unreasonable.”

The Senate Energy and Natural Resources Committee chaired by U.S. Sen. Jeff Bingaman, D-N.M., heard testimony recently from a number of experts on the issue as well as representatives of various public interest groups.

The U.S. House of Representatives passed a comprehensive bill in November to reform the mining law. Bingaman and Vice Chairman Pete Domenici, R-N.M., are hopeful the Senate and House can craft a bipartisan measure that will be signed into law.

Under the mining law, billions of dollars of hard rock minerals can be mined from federal lands without the payment of royalty, Bingaman said.

“General land management and environmental laws apply, but there are no specific statutory provisions under the mining law setting surface management or environmental standards.”

Domenici views the effort as “a complex issue that will require compromise and a great deal of hard work,” nevertheless, he is optimistic of finding a more balanced approach that will “provide a fair return to taxpayers for the use of federal resources while ensuring that America has a robust mining industry.”

Copper, molybdenum
Hard rock mining in New Mexico primarily involves copper and molybdenum production, with mining claims mostly in Cibola, Grant, McKinley, Rio Arriba, Sierra and Taos counties. A number of companies have plans to restart uranium mining in Cibola and McKinley counties, some on lands managed by the U.S. Forest Service and Bureau of Land Management, and some on lands the Navajo Nation claims is part of Navajo Indian Country.

During the recent Senate committee hearing, Mike Dombeck, former chief of the Forest Service and director of the BLM, presented testimony on behalf of Trout Unlimited, saying that mining is a legitimate use of public lands, but there are few laws more in need of an overhaul than the 1872 Mining Law.

“Under the 1872 law, mining takes precedence over all other public land uses, including hunting and fishing. The Secretary of the Interior must sell public land to mining companies, often foreign-owned, for as little as $2.50 per acre,” with mining companies paying no royalties for hard rock minerals, he said.

Drinking water
Forest Service and Environmental Protection Agency scientists have determined that the national forests alone provide drinking water to more than 60 million people in 33 states.

Henri Bisson, deputy director of the BLM, said other state and federal laws play a critical role in ensuring that hard rock mining operations on public lands occur in an environmentally sound manner. Those include the Clean Water Act, Clean Air Act, Endangered Species Act, National Environmental Policy Act, Wilderness Act, and National Historic Preservation Act.

Bisson acknowledged that historic mining practices have had adverse consequences but said current regulations are designed to avoid a recurrence of that history. Abandoned Mine Lands, a legacy of past practices, are addressed through an active program that seeks to mitigate hazards present at abandoned mines, restore watersheds, and protect public health and safety, recreation, fish and wildlife.

Between 2000 and 2007, the BLM inventoried 5,500 sites and remediated physical safety hazards at more than 3,000 sites. The BLM also restored water quality at more than 280 sites through 2003, Bisson said.

William Cobb of Freeport McMoran Mining Co., who testified on behalf of the National Mining Association, said access to federal lands for mineral exploration and development is critical to maintain a strong domestic mining industry.

“Federal lands account for as much as 86 percent of the land area in certain Western states. These same states, rich in minerals, account for 75 percent of our nation’s metals production and will continue to provide a large share of the future metals and hard rock minerals produced in this country,” Cobb said.

Unlike the oil and gas industries, companies that mine for gold, silver, copper, uranium and other precious metals do not have to pay a fee when operating on federal land, “essentially allowing these valuable minerals to be given away for free,” said Ryan Alexander, president of Taxpayers for Common Sense,

“The 1872 law also saddles taxpayers with the hefty clean-up costs of the toxic aftermath of mining operations. Not only do American taxpayers underwrite the profits, but they are also forced to pay for the damages left behind.”

In Crested Butte, Colo., where land prices range as high as $1 million per acre, the federal government sold 155 acres to the Phelps Dodge mining company for approximately $790, Alexander said, despite a company estimate that the land could produce up to $158 million in after-tax profits over 11 years.

“In some cases, it appears that mining patents have been little more than a ruse for developers to get their hands on valuable federal property before flipping it for other, more lucrative uses,” he said, adding that in 1983, the Forest Service sold 160 acres near the Keystone, Colo., ski resort for $400. “Six years later the land sold for $1 million.”

Mayor Alan Bernholtz of Crested Butte, a small community in western Colorado surrounded by federal land, said watershed protection must take precedence over industrial mining development.

“Crested Butte has a rich mining history and is proud of its heritage,” he said, but times have changed and now skiing, fishing, hiking and mountain-biking are the lifebloods of the economy. However, a large-scale molybdenum mining project proposed on Forest Service lands just one mile outside the town’s boundary – the “Lucky Jack Project” -- is proposed in the watershed where the town obtains its domestic water.

“Under the federal government’s interpretation of the mining law, the Forest Service is powerless to deny the Lucky Jack Project. At best, the Forest Service can only ‘minimize adverse impacts,’ but cannot deny the proposed project to protect public resources and local interests,” he said.




Reprinted as an historical reference document under the Fair Use doctrine of international copyright law. http://www4.law.cornell.edu/uscode/17/107.html