Friday, February 17, 2012
One hundred and forty years after being singed into law by President Grant, a 19th century statute is still one of the primary means of regulating mining on federal lands, and permits mining companies to
extract minerals without paying royalties, while limiting environmental regulation. Under the General Mining Act of 1872 individuals and corporations have “free and open access” to prospect in western federal lands and, for a nominal fee, may stake a claim upon any valuable mineral deposit they find.
Although federal lands designated for specific purposes, such as National Parks and wildernesses, are closed to prospecting, the law has nonetheless allowed mining companies to stake claims to millions
of acres of federal land.
Despite the generosity of the law, environmental statutes such as NEPA and the Clean Water Act still apply to mining, and federal permitting is required before prospecting begins. However, because the law guarantees “free and open access” to non-designated federal lands, in the words of a federal judge, “the development of mineral resources in the national forests may not be prohibited or unreasonably circumscribed.” Furthermore, because the law gives mining preference over other uses of federal land, as a former chief of the Forest Service testified before Congress, “it is nearly impossible to prohibit mining under the current framework of the 1872 mining law, no matter how serious the impacts might be.”
Thus, an industry ranked by EPA as the most toxic polluter in the country, and one that has polluted more than 40 percent of western watersheds, enjoys almost unlimited authority to exploit public land. Rivers and fisheries, habitats and even National Parks are threatened and/or destroyed by the continued existence of the law, and hundreds of thousands of abandoned mines pockmark the western landscape. Although mining companies are required to post cleanup bonds, they are frequently insufficient to cover comprehensive remediation, and if the company is bankrupted, taxpayers foot the bill.
Significant legislative actions have already limited some of the law’s potential impacts. For example,
a 1920 amendment eliminated hydrocarbons and a number of other substances from the list of
claimable minerals. More recently, a 1994 congressionally imposed moratorium on accepting patents for mining claims means that claimholders can no longer gain title to surface and mineral rights, although they may still extract minerals within the claimed area. A number of rules and regulations have also limited the law’s reach. Perhaps most importantly, the Bureau of Land Management has removed a patchwork of important lands from the purview of the law, and is in the process of ensuring that other valuable lands, such as those surrounding the Grand Canyon, are also not claimable.
Yet while a number of bills have been introduced in both the current and previous Congresses, no comprehensive action has been taken to modernize regulation of the mining industry. Surly it must be possible to replace this outdated statute with a new law that more equitably balances the need for a
domestic mining industry with environmental protectionism, and allows the entire country, and not just the mining industry, to benefit from the vast resources beneath federal lands?