August 19, 2008

The Mining Law of 1872

By Gordon Morris Bakken
Montana; The Magazine of Western History

Briggs gold mine in California's Panamint Mountains

Debate over the repeal of the Mining Law of 1872 has been raging in the West now for almost two decades and once again reached the halls of Congress in 2007-8. As lawmakers on Capitol Hill consider revisions of the century-old law by which mining companies have been extracting valuable mineral deposits from underneath what were once pristine public lands, the debate can be couched in terms of two "poster" sites: one, the Summitville gold mine in southern Colorado's rugged San Juan Mountains, a pollution disaster of huge proportions, and the other, the Flambeau Mine in Ladysmith, Wisconsin, a prototype of environmentally sensitive mining. Which represents the reality of mining? Is the industry the dreaded Demogorgon, scooping up the natural environment in its insatiable maw? Or is it a sensitive caretaker of the Earth, complying with the regulations of a new age while seeking to supply this country with necessary resources and at the same time to profit its workers, owners, and shareholders? The images and realities of the western mining industry vary over time and place.

The Mining Law of 1872 was part of the nineteenthcentury effort, which included the Homestead Act of 1862, to encourage the settlement of the West. The mining law was specifically aimed at hastening the development of mineral lands by transferring those lands to private ownership. It provided that anyone holding a mining claim on a parcel of public land could gain absolute title to that land for as little as $2.50 an acre. It was passed at a time when the frontier was seemingly boundless and its riches endless. The policy appeared sound and sensible for its time.1

However, the Mining Law of 1872 had enormous unintended consequences as a largely unregulated mining industry caused substantial environmental degradation of public lands for more than a century. Although both Congress and the states have sought to limit the original intent-and reach-of the law, removing whole areas of public land from exploration, the mining industry was, and is, a powerful force. Industry pressure has largely succeeded in delaying implementation of many attempts at effective regulation: a piece of legislation passed in 1872 is still the law of the land.

A look at the western mining industry in recent decades shows both considerable change and adherence to the status quo. By 1995, the industry had, it seemed, accepted the reality of environmental regulations-and discovered the advantages of public relations. According to one observer, "Mining companies that not so long ago wouldn't even pay lip service to environmental values are producing videos and glossy publications touting their environmental policies and reclamation work." The same observer also reported that mining companies were willing to pay a premium to continue mining public land; the Kennecott Company, for example, agreed to pay $1 million in addition to a 3 percent royalty to the federal government as part of a deal to expand an existing gold and silver operation in Alaska.2

For all such concessions, the industry lobby was still powerful enough to thwart efforts to repeal the Mining Law of 1872, and some in the industry were still robbing both the earth and the taxpayer. The Los Angeles Times reported in 1995 that the Summitville gold mine in Colorado had taken $6 million in gold from the earth, destroyed seventeen miles of the Alamosa River, and now claimed compensation from the federal government because its cyanide heap had been declared a Superfund site.3

In the late 1990s, such excesses caught the attention of government agencies and of American citizens, including tribal members. In the Panamint Valley, neighbor to California's Death Valley, the Timbisha Shoshones, newly empowered by provisions of the California Desert Protection Act and concerned about the potential destruction of culturally significant sites, opposed operations at the Briggs gold mine. The Colville Indians of the state of Washington banned hard-rock mining on tribal lands in 1998. In New Mexico, state reclamation laws brought mining industry representatives and environmental compliance officials to the table, while-seeking to avert anything like another Summitville Mine disaster-the Summit County, Colorado, board of commissioners limited the use of cyanide in mining operations.4

In 1996, when Noranda, a Canadian firm, tried to open the New World gold mine near Cooke City, Montana, adjacent to Yellowstone National Park, the U.S. Forest Service voiced concerns over the handling of the 11 million tons of sulfide tailings that would be produced at the site. New World officials responded with a proposal to backfill the mine's shafts with the tailings and submerge the remainder in a containment pond lined with clay and plastic. Yellowstone Park superintendent Michael Finley voiced his doubts: "The public is supposed to believe we can put a potential acid slurry in an envelope and keep it there forever?"5 The Clinton administration sought to end the controversy by offering Noranda a buyout coupled with a land swap, but reactions were mixed. A Washington, D.C., environmental group claimed that "this sent a very, very loud signal to the mining industry and to the American public that there are simply some places that are unfit for mining." Others claimed that the proposed land swap sent a very different message, one proclaiming that "[w]hoever comes up with the most monstrous mining proposal gets the best deal."6 And Montana was not the only battleground. Mineral processing operations in Utah set national records for air pollution in 1996, while problems associated with mines in New Mexico and Wyoming drew local, state, and federal attention.7

Yet there were clear signs of change. The term moratorium crept into the vocabulary of the mining industry as state and federal regulations served to dilute some aspects of the Mining Law of 1872. In 1998, ASARCO, Inc., settled cases brought by the Department of Justice and the Environmental Protection Agency (EPA) by agreeing to pay fines and clean up sites in Arizona and Montana. The EPA announced that this settlement made ASARCO "the first company to agree to establish a court-enforced environmental-management system applying to all of its operations across the country."8

The Homestake Mining Company's McLaughlin Mine in northern California won the praise of the Sierra Club for its operations. Homestake took a proactive approach, cleaning up three abandoned mercury mines on the property and piping the tailings slurry to a less fragile site four and a half miles away. The company collected baseline data that demonstrated environmental renewal, including the growth of native oak trees on waste dumps. In Montana's Absaroka- Beartooth Wilderness, a popular hunting and fishing destination, the Stillwater Mining Company was successfully mining palladium at the headwaters of the Boulder and Stillwater rivers. The Mineral Policy Center in Washington, D.C., applauded Stillwater as a "sustainable, environmentally sound and community supportive mine."9

In the new century, mitigation and reclamation became watchwords for the industry and new technologies helped restore mined areas. The courts hastened the turnaround. In a 2000 ruling stipulating that the Golden Sunlight Mine near Whitehall, Montana, had to totally reclaim its mine site, Judge Thomas C. Honzel noted: "[T]here is nothing in the constitution or the statutes which allows a reclamation decision to be based on . . . whether a mine operator will make a profit." He thus repudiated the premise used by the Anaconda Copper Mining Company and the federal government a century earlier to allow "the Company" to continue its environmentally destructive practices.10

Regardless of such progress, the 2000 EPA Toxics Release Inventory labeled the mining industry the country's number one toxic polluter. There were countless examples of ongoing pollution to be found. Tailings from the McLaren Mine on Soda Butte Creek near Cooke City, Montana, turned the creek red and killed all aquatic life. In New Mexico, a molybdenum mine's effluents had turned the Red River blue. Acid mine drainage plagued the Sacramento River in California. People were dying in Libby, Montana, because of a vermiculite mine.11

The federal government's response was to issue regulations that (1) required companies to submit bonds insuring their work and (2) granted the Bureau of Land Management discretion in barring mining activity that would harm wildlife habitat or scenic beauty. These small steps forward, however, came to a halt with the inauguration of the Bush administration in 2001. Secretary of the Interior Gale Norton announced a full review of all such regulations. The result of that review was the reissuance of watered-down versions, and a new mining boom was under way.12

While it's true that Superfund dollars were flowing into treatment, reclamation, and research, all of that turned on the availability of big money. In Idaho Springs, Colorado, the plant that treated the acid effluent produced by the Argo Tunnel operated at the cost of the million Superfund dollars a year. The projected cost of completing the cleanup of the Bunker Hill site in Idaho was estimated to be $1.4 billion. In 2002, the total projected cost of cleaning up abandoned mines scattered across Montana, Idaho, Nevada, Utah, Arizona, New Mexico, and California was put at between $32 billion and $72 billion.13 That same year, the U.S. House of Representatives again debated legislation to reform the Mining Law of 1872; yet, as had happened over the 130-year history of the law, the mining lobby defeated passage of the reform bill. Still, the reform movement seemed to have gained momentum. In November 2007, with the support of a coalition of taxpayer groups, conservationists, and outdoor enthusiasts, the House passed a bill similar to that rejected in 2002. Modest as it is, the Hardrock Mining and Reclamation Act (HR 2262) proposed to end the sale of mineral lands, establish an 8 percent royalty for new mines and a 4 percent royalty for existing mines, and require reclamation bonds. The bill also required restoration of the land to premining status and the protection of fish and wildlife habitat. There are questions as to its fate when the Senate takes it up in this session.14

For the mining industry, there is no hiding from its legacy. But the companies have a choice. They can operate like the Flambeau Mine in Wisconsin, with clear environmental plans, safeguards, and a managerial commitment to vigilance. Or they can choose to operate under the Summitville model. From the perspective of environmentalists, it is clear that regulations have had a positive impact. Far less clear is whether the industry and the environmentalists can find areas of coexistence.

Recent congressional debates over reform of the Mining Law of 1872 have shown that there has been both stasis and a great deal of change in the western mining industry in the past two decades. While many mines take pride in their roles as stewards of public lands and water, others have caused substantial environmental degradation. One of the worst offenders, the Summitville gold mine in southern Colorado (above, circa 1993), created a pollution disaster of huge proportions, destroying seventeen miles of the Alamosa River.

Tribes' objections to mining operations that threaten culturally significant sites are increasingly being heard, including those of the Timbisha Shoshones, who opposed operations at the Briggs gold mine in California's Panamint Mountains.

On the opposite end of the spectrum from the Summitville mine, Montana's Stillwater palladium mine (top), located at the headwaters of the Boulder and Stillwater rivers, has a strong environmental record. The mine participates in a partnership with citizens' groups to monitor water quality to reduce harm to fisheries (bottom), invests in new technology to diminish waste tailings, and works to reduce traffic on scenic roads.

1. See Gordon Morris Bakken, The Mining Law 0/1872: Past, Politics, and Prospects (Albuquerque, N.M, forthcoming 2008).

2. Jon Christiensen, "After the Gold Rush," High Country News, April 3, 1995.

3. "Pay Me to Be Good-or I'll Sue," Los Angeles Times, March 10,1995.

4. "Timbisha Shoshone Tribe Challenges Plan for Inyo County Gold Mine," Los Angeles Times, July 29, 1995; "Tribes Strike Back at Mining," High Country News, August 31, 1998; "Closing the Wounds: A Plucky Group of New Mexico Activists Pushes Mining Reclamation into the 2lst Century," ibid., December 3, 2001; "Colorado Considers a Mining Ban," ibid. In 2004, the Board of Commissioners of Summit County, Colorado, voted to limit the use of cyanide in mining operations; an appeals court upheld the ban in 2007. "Appeals Court Upholds Colorado County Cyanide Ban on New Gold Mines," March 23, 2007, http:// en/page68?oid=

5. "Yellowstone: A Park Boss Goes to Bat for the Land," High Country News, April 29, 1996. See also "Feds Near Land-Swap Deal to Stop Controversial Mine," Madison Wisconsin State Journal, August 10, 1996; and "Yellowstone Mine a Goner," High Country News, August 19, 1996.

6. "The Bigger the Mine, the Better the Deal," High Country News, September 30,1996. The New World was not Montana's only controversial mine project. The proposed McDonald Mine near Lincoln, which threatened the Blackfoot, "a mythic river" in Montana trout circles, drew heavy fire from environmentalists because of potential pollution, and the BLM banned all new mining claims on federal lands in Montana's Sweetgrass Hills for twenty years in 1996. The central concern here was groundwater pollution and the desecration of sites sacred to American Indians. This moratorium became part of a larger effort to reform the mining law itself, an effort that eventually led to Montana voters' defeat in 2004 of the so-called Safe Mining Initiative, which would have returned the state to a regime of cyanide processing. "Federal Negligence Turns Ordinary Montanans Hostile," ibid., February 19, 1996; "Montana on the Edge: A Fight over Gold Forces the Treasure State to Confront Its Future" and "Mine Wastes Haunt a Mythic River," both in ibid., December 22, 1997; "Plan Bans Mining in Sweet Grass Hills," Bozeman (Mont.) Daily Chronicle, May 19, 1996; Mineral Policy Center, 1996 Annual Report (Washington, D.C., 1996), 2-3; Jennifer McKee, "Cyanide Ban Removal Fails," Butte (Mont.) Montana Standard, November 3, 2004; Montana River Action, "Initiative 147 Defeated," http://www. html

7. "Toxics Pour into Our Air, Water, Land," High Country News, September 16, 1996; "On the Trail of Mining's Corporate Nomads," ibid., June 23, 1997; "While the New West Booms, Wyoming Mines, Drills . . . and Languishes," ibid., July 7,1997.

8. "Asarco Will Pay $6.4 Million in Fines, Spend $61.5 Million to Clean Two Sites," Wall Street Journal, January 26, 1998.

9. "Homestake Shows How Good a Mine Can Be," High Country News, January 19, 1998; "Mining Out the Middleman: In Montana, Locals and Industry Bypass Agencies and Forge a New Road," ibid., July 31, 2000. Over a thousand people are employed at the Stillwater mine, and buses bring them in from miles around.

10. "Reclaiming a Golden Landscape," ibid., April 10, 2000.

11. "Mining Tops EPA's Toxics Polluter List," Mineral Policy Center Newsletter, Winter 2000, 7; "Mining Legacy: Mine Tailings Leave Yellowstone at Risk Say Park Service, Environmentalists," Bozeman (Mont. ) Daily Chronicle, August 6, 2000; "The Mine That Turned the Red River Blue," High Country News, August 28, 2000; Walter Swain, "The Environmental Effects of Mining in California," California Studies Newsletter, 9 (Spring 2000), 4; "Libby's Dark Secret: For Decades, Mine Dust Has Been Killing People in Libby, Montana," High Country News, March 13, 2000; "Company Leaves Victims in Its Dust," ibid., April 23, 2001.

12. "Mining Regs Slip into the Rulebooks" and "Bush Hits the Brakes," both in High Country News, February 12, 2001; "Mining Reform Gets the Shaft," ibid., November 19, 2001; "Stop the Rollbacks," Mineral Policy Center Newsletter, Summer 2001, 1, 4-5; "Mining Boom! The Impact on Wildlands," Redroch Wilderness Newsletter, 18 (Summer 2001), 11.

13. "An Orange River Runs through It," Chronicle of Higher Education, March 22, 2002; "EPA Wants to Supersize Idaho Superfund Site," High Country News, March 4, 2002; Paul Nyden, "Rahal Bill to Control Western Mines," Charleston (W. Va.) Gazette, May 17, 2002.

14. "Creating a New Western Legacy: 1872 Mining Law Reform Bill Passes House of Representatives," Earthworks Journal, Spring 2008, 4- 5.

Gordon Morris Bakken is a professor of history at California State University, Fullerton, and the author of some twenty books, including The Mining Law of 1872: Past, Politics, and Prospects, forthcoming from the University of New Mexico Press.