Outdated mining law lets industry use and abuse public lands for free

Congress has unsuccessfully tried to reform the Mining Law of 1872 several times over the years, including a near-miss in 1994. It’s high time to try again.

The Mining Law President Ulysses Grant signed was the work of Bill Stewart, Nevada’s colorful “Silver Senator,” then barely 40 years old but already, thanks to the hard-rock mining industry, the richest man in the Senate. His main objective was to make sure his industry could continue to extract gold, silver, copper and other substances from public land for free.

{mosads}To say he succeeded understates the matter. While by some estimates, mining companies have extracted $300 billion worth of minerals over the past century and a half, they still pay nothing to the landowner — the American public. In fact, today America’s public lands are the only lands on Earth the hard-rock mining industry can mine without compensating the landowner. Everywhere else, the industry pays private and governmental landowners (including states and tribes) substantial sums.

This is very different from U.S. policy toward the coal, oil and gas industry, which for almost a century has leased public lands and paid the U.S. many billions of dollars in royalties. Indeed, every other industry using public lands for economic gain — like livestock grazers, loggers, solar and wind power developers and recreation concessioners — pays something for the privilege.

That alone is ample justification for reform. But it’s not the law’s only defect.

The Silver Senator crafted his law to suit the pick-and-shovel mining practices common during his era’s gold and silver rushes. Today, the industry operates at a completely different scale, where a single mine moves and treats millions of tons of rock with chemicals like cyanide to extract quantities of minerals measured in ounces. The legacy can be found on many western landscapes — deep open pits that can be miles across, gigantic waste rock dumps and tailings piles — all producing pollutants. The Associated Press recently reported that every day hard-rock mines collectively produce around 50 million gallons of contaminated waters, threatening water supplies of downstream communities.  

The pollution does not stop when the mine shuts down. Some of the biggest cleanups under the national EPA Superfund site remediation program involve mines opened under the Mining Law more than a century ago. Even today, new mines are permitted even though their toxic effluent will require treatment in perpetuity. Often it is the public, and not the mining company, who pays the cost. Just cleaning up existing abandoned hard-rock mines could require $50 billion, according to the EPA — a sum that overwhelms the Superfund budget.

There is a good reason the industry is fond of describing the Mining Law as its “Magna Carta.” Its aura has long intimidated government agencies. Recently, for example, higher-ups in the Army Corps of Engineers reversed a lower-level decision to deny a Clean Water Act permit to a proposed new copper mine involving public land in Arizona. This came not long after the Interior and Agriculture Departments conveniently interpreted the Mining Law as giving the mine proponent an unfettered right to use as much public land as it wants for its massive waste rock and tailings piles, even though much of the ore body is now on private land.

Happily, the embers of reform are being stirred in the Congress. House Natural Resources Committee Chairman Raul Grijalva (D-Ariz.), is poised to introduce a reform bill, and Sens. Tom Udall (D-N.M.) and Joe Manchin (D-W.Va.) have also expressed interest.

{mossecondads}Some reforms are obvious — requiring the industry to pay a reasonable royalty and a reclamation fee to help pay for cleanup of abandoned polluting mines. Other issues also deserve addressing, including how to balance hard-rock mining against other uses of public lands, and how best to replace the archaic claim location system the Silver Senator devised long ago, an improvement that could benefit the industry.

In January 1969, as he was stepping down after eight years as Interior secretary in the Kennedy-Johnson administration, Udall’s father Stewart called “complete replacement of the Mining Law of 1872” the “most important piece of unfinished business on the Nation’s natural resource agenda.” Now, more than ever, Congress should take up that challenge.

John Leshy is professor emeritus at U.C. Hastings College of the Law in California. He is the author of “The Mining Law: A Study in Perpetual Motion” (1987) and served in senior positions in the Interior Department in the Carter and Clinton administrations.