Andy Kerr

Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur

The Hard Case of Hardrock Mining Reform (Part 1): Where Done, If It Cannot Be Done Right, Then Do It the Least Wrong

(This two-part series examines legislation in Congress that would reform the infamous Mining Law of 1872. Part 1 focuses on how mining on public lands should be administered in the twenty-first century. Part 2 will focus on the pending legislation and conservation areas in which mining should be permanently banned.)


Fig. 1. Rio Tinto’s Bingham Canyon Mine in Utah—0.6 miles deep, 2.5 miles wide, and covering 1,900 acres—is the largest open pit mine in North America and is still expanding.Source: Wikipedia.

Today anybody, including foreign companies (as long as they own a domestic corporate shell), can enter most federal public lands and stake a claim, which the government treats as a right to mine. The government cannot say no to such hardrock mining, no matter how inappropriate. There is no balancing test as to whether the mining on the public’s land would be in the public’s interest. No royalties need be paid to take federal minerals. One can mine and then just walk away, as has been the case for hundreds of thousands of abandoned mines.

The General Mining Act of 1872, which allows these travesties, is ripe for reform. The Democrats now control the House, and House Natural Resources Committee Chair Raúl Grijalva (D-3rd-AZ) is very interested in public lands hardrock mining reform. If the Democrats can take the Senate and the White House in the 2020 election, reform can occur during the sesquicentennial of the 1872 law in 2022. Just maybe the death grip of the mining industry can be broken.

Reform Efforts and the Modern Insanity of the 1872 Mining Law

The mining industry sees the General Mining Act of 1872 as a combination of the 11th Commandment and the 28th Amendment. When pressed on the modern insanity of the 1872 Mining Law, the hardest core of the hardrock miners will harken further back to the Mining Act of 1866 as an even higher authority. The mining industry’s problem is that Congress made those statutes and Congress can repeal or amend those statutes. In fact, Congress has time and again amended the statutes—but alas, mostly on the edges. For example, due to now noncontroversial provisions on annual appropriation bills, miners can no longer “patent” mining claims (convert public land to private ownership) at the bargain price of between $2.50 and $5.00 per acre.

The list of minerals given away free by the law has also shrunk over time. In the beginning, every mineral on public lands—solid, liquid, and gaseous—was covered by the 1872 Mining Law. All minerals were claimed by location (marking one’s claim on a piece of federal land). The claim system arose organically in areas where miners rushed in before the law arrived. Under the 1872 law, any person could stake a claim to minerals he found (it was always a he back then).

In the Mineral Leasing Act of 1920, Congress provided that coal, petroleum, natural gas, and other hydrocarbons, in addition to phosphates, sodium, sulfur, and potassium, would henceforth not be subject to location but to leasing, where royalties were collected. The materials, if solid, were softer than gold, silver, and such, and hence the latter became known as hardrock minerals. Oil, gas, and other hydrocarbons are also known as fluid minerals.

In the Materials Act of 1947, Congress removed the “common materials” of sand, stone, gravel, pumice, pumicite, cinders, and clay from location claims under the 1872 law. While they were at it, they also removed from location claims and provided for similar sale of vegetative materials (including but not limited to yucca, manzanita, mesquite, cactus, and timber or other forest products). 

In the Geothermal Steam Act of 1970, Congress provided a special leasing process for underground liquid and gaseous hot water.

I recall efforts to reform the Mining Law of 1872 in the late 1970s, when the antiquated statute was only a few years past its centennial. Reform efforts have continued sporadically since then. When the Democrats were last in charge of the House of Representatives in 2007, a pretty good bill (H.R.2262, Hardrock Mining and Reclamation Act of 2007) passed, but it came to naught in the Senate. Even when the Democrats controlled the Senate, no action occurred on hardrock mining law reform as on this issue the Democrats were controlled by long-serving and later party leader Senator Harry Reid (D-NV). Reid had his environmental pluses but displayed his dark side in defending Big Mining in the Silver State (which could rightfully claim the moniker Gold State as well, as most US gold is produced in Nevada).

Real Miners Versus Wannabe Miners

The public lands mining industry is actually two industries.

The first is the real mining industry, which develops operating mines often capitalized in the hundreds of millions to billions of dollars. They cost a lot of money, but they make a lot of money and operate on timescales of multiple decades. The real mining industry is politically powerful because it makes campaign contributions and otherwise throws its weight around. Few proposed mines actually get to operation, but those that do are immensely profitable.

The second is the wannabe mining industry. These wannabe miners may have big dreams, but they don’t have capital. They include intelligent entrepreneurs who hold a bunch of mining claims that contain amounts of one or more hardrock minerals that may be commercially valuable if commodity prices dramatically increase and/or the cost of extraction dramatically decreases. In many cases, public opposition would also have to evaporate. These guys are either investing their own money or are able to get investments from other dreamers or from venture capitalists who are widely spreading their bets. If the various stars do align, these guys are usually bought out by a larger company adequately capitalized to exploit the investment.

A subset wannabe miner is the uncapitalized dreamer/hobbyist. These wannabe miners have either staked their claims on federal public land or have bought the claims of others. They pay their annual and nominal maintenance fees for their claims and might even visit to do casual prospecting (no permit necessary), which means picking up a few rocks or panning a few pans of stream sediment. The mineral may be there but in noncommercial quantities. Holding mining claims also leads some of these wannabes to misbelieve that they own the public land or at least the minerals under the surface (only if they have made a commercial discovery). For some, holding mining claims can give entrée to a social club whose members reinforce each other’s hobbies.

Once in a checkout line, I eavesdropped on a strapping young lad seeking to impress the lovely lass next to him by regaling her with tales of his suction-dredge gold mining exploits. After describing his motorized dredge and the rolling stock, equipment, and supplies to support it, he allowed that a very good weekend would be to get $100 worth of gold (with gold then going for ~$2,000/ounce). As a rational economic enterprise, his calling was not a going concern. However, it made him happy and maybe got him the girl. A man can dream, can’t he?

The only profit center in such hobby mining is the retail store that sells mining equipment—dredges, sluice boxes, and gold pans.

When Public Lands Must Be Mined: Do It the Least Wrong

We all use hardrock metals. Some are imported to the United States, while others are produced domestically, some on federal public lands. As we decarbonize our economy away from the softrock mineral known as coal and the fluid minerals known as hydrocarbons, we are going to need more hardrock metals for batteries, solar panels, wind turbines, efficient motors, and such. (Gold for human adornment—one gold ring might result in twenty tons of toxic mine waste—or financial speculation is quite another matter.) In many cases, metals can come from private lands and should. In some cases, these minerals will have to come from federal public lands. In all cases, recycling rates for metals should approach 100 percent, which is achievable through a combination of regulation, market incentives, higher waste disposal fees, and taxation that generally drives up the price of metals.

The most important purpose of public lands is to provide ecosystem services that private lands and the private sector are unable or unwilling to provide. Biological diversity, watershed integrity, recreational opportunities, scenic views, open space, and elbow room all come immediately to mind. In a few cases, where a mineral is ecologically and/or climatically strategic, public lands should be mined, but not before they are no longer public lands. In these cases, it is better just to sell the public lands containing the minerals to the mining company holding the claim or lease. The sale should be, at a minimum, at fair market value.

Really, though, to facilitate public and regulatory acceptance of its mine, the well-capitalized multinational holding company should decide it is in its interest to offer up a crapload (a technical term in capitalist economics) of money and/or lands it has acquired for that purpose that are more valuable to the public than the lands that will be lost to mining. The money should be used to buy high-conservation-value private lands to place in public ownership and stewardship. Mining companies should like this because time is money and such expenditures are a deductible business expense. They should also like it because they’d rather own the minerals than be paying royalties to a federal government that also feels the need to regulate the mine because it is on public lands.

But public land would be lost, you say! In some cases, the public land may be so valuable to society that no amount of money or other land can mitigate the loss. However, that will only be true in some cases. It often depends on how much high-conservation-value land could be acquired.

Regrettably but inevitably, public land handed over to mining no longer has public value. It’s now a giant industrial site of noise, lights, smells, and pollution (ideally limited to the site through adequate regulation). When the mining is done and the site is “reclaimed,” the ecosystem services will not return. The full complement of native vegetation will not return—and perhaps none will. The streams and aquifers will not behave as before. The reclaimed industrial site will still be lost to nature.

In most cases, the proper course for public lands conservationists is to oppose, oppose, and oppose to cause delay, delay, and delay. Given the time value of money to profit-maximizing investors, enough delay—perhaps coinciding with soft mineral prices—can cause the mining developer to just go away.

Fig. 2.  Some major metals operations are on federal public lands, while others are not.  Source:  National Mining Association .

Fig. 2. Some major metals operations are on federal public lands, while others are not. Source: National Mining Association.

For More Information

• National Mining Association. Know your enemy.

 • Earthworks. Know (and support) your friends. The mission of Earthworks is a worthy one:

Earthworks is a nonprofit organization dedicated to protecting communities and the environment from the adverse impacts of mineral and energy development while promoting sustainable solutions.

Earthworks stands for clean air, water and land, healthy communities, and corporate accountability. We work for solutions that protect both the Earth’s resources and our communities.

Particularly relevant Earthworks webpages are General Mining Law of 18721872 Mining Law 101, 1872 Mining Law—Reform RequirementsRecreational Mining on Public Lands, and 1872 Mining Law—The Need for Reform. I also recommend the fact sheet “Hardrock Mining and Reclamation Reform Act of 2014: 1872 Mining Law Reform.” I also recommend you make a donation.