November 11, 2005

Parklands in Peril

A sneaky plan in Congress could spark a fire sale of public property

Riverside Press-Enterprise


A proposal quietly working its way through Congress could spark a fire sale of public lands, turning back the clock on a law that's already stuck in 1872. If it passes, areas in our national parks, forests and other special places could be among the first to go.

Well over a century ago, to help the mining industry and Western settlement, Congress decided to sell federal lands to miners for no more than $5 per acre. Since then, the price of an ounce of gold has increased almost twenty-fold, but, thanks to the 1872 mining law, the price of gold-bearing public lands has not changed one cent.

As recently as 1994, the law gave a Canadian mining company title to public lands containing an estimated $10 billion worth of minerals for less than $10,000. In response to the massive publicity surrounding the sale, Congress enacted a bipartisan moratorium on the giveaway of federal lands. Today, companies can still mine on these lands, but they cannot buy them away from the public.

A new budget reconciliation proposal by Rep. Richard Pombo, R-Tracy, would end this ban and resume the privatization of our public lands. His bill requires the Interior Department to sell off lands for $1,000 an acre or the fair market value of the land surface, without regard for mineral value. Simply put, the "smash and grab" proposal would allow public lands worth their weight in precious metals to be sold to mining companies for a pittance.

The bill also eliminates the requirement in the law since 1872 that companies actually discover valuable mineral deposits on public lands before they gain rights to exploit them.

Invaluable Sites

Not satisfied with this liberalization of the discredited 1872 law, Pombo would also let private interests buy federal lands for purposes that have nothing to do with mining, such as building ski resorts, gaming casinos and strip malls on areas currently owned by the American public.

A unanimous Supreme Court ruled in 1979 that "the federal mining law surely was not intended to be a general real estate law." Pombo's bill would change all that, and the first open house could be held inside Death Valley National Park.

While a last-minute amendment ostensibly protected national parks and some other areas, this amendment exempted "valid existing rights." There are more than 900 mining claims in our national parks, including 286 in Death Valley alone. Claim owners will likely assert rights to purchase these lands, and they could succeed.

Moreover, other invaluable sites, such as wilderness study areas and national forest roadless areas, are plainly left vulnerable to eventual privatization under this provision. Hikers, hunters and livestock grazers could find locked gates blocking their passage through previously public lands -- with the U.S. government nearly powerless to do anything about it.

Pombo is now trying to sneak his bill through Congress, hiding it in a budget debate that has been dominated by higher profile controversies. He pushed the bill through committee under the pretense of raising federal revenue, without mentioning that the public, the owner of these lands, will be the big loser.

Hard-rock mining is the only extractive industry that pays no royalties on the resources it removes from public lands. Establishing a modest 8 percent royalty, which is at the lower end of what coal, oil and gas companies already pay for federal resources, would yield twice as much revenue as Pombo expects from his land grab.

Peerless Audacity

William Stewart -- the rabidly pro-mining Nevada senator who wrote the 1872 Mining Law, steered it through Congress and then made a nice living representing miners -- would not have dared to try this. But he did not know Rep. Richard Pombo. As public lands become private real estate and trail markers give way to "No Trespassing" signs, one can almost hear Stewart chuckling in admiration of Pombo's audacity.

John Leshy was solicitor general of the Interior Department under President Clinton, and is a distinguished professor of law at UC Hastings.