Statement of Stephen D'Esposito, EARTHWORKS President, on 1872 Mining Law Reform Hearings 7/26/07 -
"Today the U.S. Congress takes an important step towards reforming one of the last remaining public-resource giveaways.
The House Subcommittee on Energy and Minerals hearing on HR 2262, the Hardrock Mining and Reclamation Act of 2007, addresses the need to update a law that is long past due for reform -- the 1872 Mining Law.
Although the law was passed before women could vote and long before the advent of national environmental laws, the 1872 Mining Law still governs mining for precious minerals -- such as gold, copper and uranium -- on public lands.
Reform is needed to ensure that any mining on public lands takes place in a manner that protects crucial drinking water supplies and other natural resources, special places, taxpayers, fish and wildlife habitat, and the health and well being of our communities.
I'd like to thank Chairmen Rahall and Costa for their commitment to this issue and their efforts to make the 135th birthday of the 1872 Mining Law it's last."
1872 Mining Law
Bingham Canyon mine, Utah.
The largest open-pit mine in North America.
A Law Passed to Settle the West
The 1872 Mining Law was signed into law by President Ulysses S. Grant. Before Custer's Last Stand, it was passed to promote the development and settlement of publicly-owned lands in the western United States
The Mining Law promotes development by allowing mining interests to --
take valuable hardrock minerals including gold, silver, and uranium from public lands without royalty payment to the taxpayer -- unlike other mining industries that extract coal, oil or natural gas; buy valuable mineral bearing public lands for no more than $5 per acre -- 1872 prices.
19th century America wasn't concerned with environmental protection. So the mining law doesn't contain environmental protection provisions. Communities and environments have paid the price.
hundreds of thousands of abandoned mines. According to EARTHWORKS estimates, it will cost taxpayers between $32-72 billion to clean up these mines. And taxpayers are potentially liable for billions more in cleanup costs at currently operating mines.
according to the Environmental Protection Agency, 40% of the headwaters of western U.S. watersheds have been polluted by mining.
All Other Land Uses
The Mining Law has been historically interpreted to trump all other potential uses of public lands. If you hold a mining claim, that claim is treated as a right-to-mine by the federal government. The federal government is on record as saying that they cannot say no to mining proposals.
Even if those proposals threaten some of America's most special places. Even if those proposals pollute clean water.
The Need for ReformIt's the 21st century.
The western U.S. is developed. And settled. Now we need to take care of the people (and communities) that settled there.
Golden Sunlight mine, Montana.
The Way Forward
EARTHWORKS is working to reform this archaic law to better protect taxpayers, communities and the environment. We work with federal, state and local government, the mining industry, and impacted communities.
Representatives Nick Rahall (D-WV), Christopher Shays (R-CT), and Jay Inslee (D-WA) are introducing a bill to reform the 1872 Mining Law. The bill includes fiscal reform, environmental protection provisions, recognition of other land resource values besides mining, and a program to clean up abandoned mines.
Mining Law Basics
The 1872 Mining Law governs hardrock mining on 270 million acres of public-domain lands -- mostly in the Rocky Mountain West and Alaska. This constitutes almost one-fourth of all the land in the United States, or two thirds of the lands the federal government holds in trust for all Americans.
Practically speaking, hardrock minerals are mainly metals like gold, copper, and uranium. These metals constitute the vast majority of the value of mineral production governed by the Mining Law.
Specifically, hardrock minerals are actually defined by what they are not. When originally passed, the Mining Law governed all types of mining. Over the past 135 years, certain types of minerals have been removed from its jurisdiction -- including common materials like limestone, and bedded fuel minerals such as coal, oil and natural gas.
LandsPublic domain lands consist of lands ceded to the federal government by the thirteen original states, plus "acquisitions" from Native Americans and foreign powers, and that have remained continuously in federal control since acquisition. For example, the Louisiana Purchase was all public-domain lands at one time.
Public domain lands do not include lands purchased by the federal government within the existing boundaries of the United States. For example, almost all National Forests east of the Mississippi River are not public domain lands, even though they are publicly owned lands.
Establishing the Right to Mine
-- Staking a ClaimUnder the 1872 Mining Law, any U.S. citizen (including foreign companies with subsidiaries incorporated in the U.S.) can freely enter public domain lands to explore minerals. No permit needed. A small subset of public domain lands are excluded (e.g. National Parks).
According to the Mining Law, once you discover a valuable hardrock mineral, you can then establish your right to mine that mineral by staking a claim. In practice, the federal government rarely checks to see if you've actually made a valuable discovery.
"Highest and Best Use"
Once a claim is staked, the federal government has historically treated the claim as equivalent to a right to mine. All other types of mine proposals (e.g. coal) on public lands must be weighed against other potential land uses before permittal. But in the modern era, federal land management agencies have consistently argued that they cannot deny hardrock mining proposals because of the 1872 Mining Law -- federal land managers insist that, in the eyes of the Mining Law, mining is the highest and best use of public lands.