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Grant, is either “the most outdated natural resource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
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
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.”
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.
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.