America’s Antiquated Mining Policy

by: Posted on: June 02, 2011

Photo: Miners operate a hydraulic sluice in San Francisquito Canyon, Los Angeles County, California between 1890 and 1900 (Wikimedia Commons).

Editor’s note: Below is Maureen Ryan’s educational article on America’s antiquated mining policy.  This piece is of interest to anyone fascinated about a historical perspective of America’s environmental policy.  Due to the mining industry’s impact on America’s water, as Maureen explains, this piece has been placed in our “Water” section.


Evolutionary biologists have a name for species that maintain ancient forms of the past. We call them living fossils. These are species like the horseshoe crab and coelacanth, whose form has barely changed for hundreds of millions of years.  We revere them as survivors. Like the living world, every discipline has its living fossils, and American natural resource law is no exception. However, these fossils are not always so well adapted or esteemed. Environmental lawyer Charles Wilkinson has a name for the fossils of the American West’s natural resource laws. He calls them the “lords of yesterday” (Crossing the Next Meridian, 1992). These outdated policies reflect the values and needs of another time, and are at the top of the list of federal laws that need to change.


Designed to encourage western expansion in the 19th Century, and coupled with large federal subsidies, these laws persist despite dramatic changes over the past century in the US economy, major advances in scientific knowledge, and the emergence of new social and environmental values in the American West. Primary among the “lords of yesterday” is the General Mining Law or Hardrock Act of 1872, which remains codified in law almost exactly as it was written. The Mining Act was implemented under President Ulysses Grant, during a year that also saw the establishment of the first National Park (Yellowstone). This was the era of post-Civil War Reconstruction and the suffragist movement. There were 37 states in the union. It was a long time ago. The interstate highway system, the recreational economy of the West, the election of an African-American president, all would have seemed the wild hallucinations of a madman in 1872 when this law came into being.


The Act established American citizens’ “right to mine” on federal lands in the public domain, and laid out the process whereby an individual can “stake a claim” to a piece of land for purposes of mining. According to the Act, the public domain – roughly half of public lands in the West, which have been under federal ownership since their inclusion within US borders – remains “free and open” to mineral exploration. Here mining still lingers as the federal “preferred use” over other options such as forestry or recreation. The Mining Act currently applies to “all valuable mineral deposits” such as gold, silver, copper, uranium, and other industrial materials. Regulation of oil, gas, coal, steam, and fertilizers originally covered by the Mining Act were transferred to control under the Mineral Leasing Act in 1920; sand and gravel mining are now regulated by the Mineral Materials Act of 1947.


Let’s say I want to stake a claim. I find my spot, and the process begins with pedis possessio, staking a claim, which gives me temporary protection from other claims to that same public ground. If I discover a valuable mineral deposit, according to what is referred to as the “prudent person test,” pedis possessio immediately transforms into a vested property right. What’s yours (US taxpayers) becomes mine, says the law. A standard claim is 20 acres, and I can make as many claims as I like for a fee ranging from $2.50-5.00 per acre and my payments to the US government end there. Once in possession, I can build a house, cut timber, graze cattle, divert water, or engage in any other uses “reasonably incident to mining.” My claim remains live as long as I can document $100 in labor per year, and whether an individual or a mining company, I do not have to pay any royalties to the US government. In fact, if the US government wants to put my claimed land to another use, it has to compensate me for the value of lost mining proceeds. Thus states the regulatory fossil that is the Mining Act.


The Mining Act is an exemplar of an aged philosophy and persistent phenomenon in natural resource politics – the philosophy of instrumental reason, and the phenomenon of regulatory capture. Instrumental reasoning – the focus on means of pursuit rather than its ultimate ends – views land and natural resources as wasted if not actively used, though towards what end is curiously undefined. Regulatory capture involves an inversion of the regulatory system, whereby the regulated define the power and implementation practices of the regulators. There are many examples of this in US natural resource policy. The mining lobby is powerful, and this is the primary reason why this law has barely changed in 139 years.


What are the costs? There are many. The Mining Act lacks provisions for environmental protection, the legacy of which is over 50 billion tons of mining and processing waste in the US, including cyanide, arsenic, and mercury among other contaminants. Minerals common in mining wastes (pyrite, metal sulfide ores) combine with oxygen-rich water to form sulfuric acid, which is itself toxic and also dissolves heavy metals in mine residues (tailings) such as lead, zinc, cadmium, and copper. These in turn can act as lethal toxins and as endocrine disruptors that interfere with hormone regulation in humans and wildlife. At greatest risk are the waters of the US: it is estimated that 12,000 miles of rivers and streams, and 180,000 acres of lakes and reservoirs are currently affected by mining drainage, with new threats emerging from proposed sites such as the Pebble Mine in Alaska. While newer federal and state laws provide for some environmental protections, these controls remain separate from the Mining Law itself, are not uniform, and a number of toxic mining practices remain exempt from regulatory oversight under agencies such as the EPA.


Efforts to reform the Mining Act have been underway for decades. Most recently, the Obama administration entered office voicing an intention to update the 1872 Act, yet the Act remains oddly robust to time. The proposed Hardrock Mining and Reclamation Act of 2009, introduced to the Senate by Jeff Bingaman of New Mexico, would have established a royalty system and reclamation tax, yet it never came to a vote.


Cockroaches are living fossils. While it is tempting to make a joke about living fossils that we wouldn’t mind going extinct, I happen to respect cockroaches. However it’s time to write the eulogy for the 1872 Mining Act. We’re a decade into a new century, two centuries past the implementation of this old law.  Legal adaptations to bring a “lord of yesterday” into the modern age are easy relative to biological change – just the stroke of a pen. It is time.

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