Could the 151-year-old mining law finally be reformed?

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In 1974, the U.S. Government Accountability Office issued a report urging Congress to modernize the 1872 Mining Law, which makes “all valuable mineral deposits” in public lands “free and open to exploration.” The law — signed into being by President Ulysses S. Grant — was clearly antiquated and obsolete; its goal of encouraging corporate colonization and white settlement of the Western U.S. had been accomplished ages ago, and now it was adversely affecting public lands and their management. It was high time, the authors recommended, for an overhaul.

Congress, however, did not heed the call. And so today, 151 years later, the law remains largely unchanged — the most pesky and persistent of the outdated natural resource policies that the late scholar Charles Wilkinson aptly dubbed the “Lords of Yesterday.”

But now, with a new “green metal” mining boom on the horizon, there’s a glimmer of hope that this ancient “Lord” might be dethroned. In early September, a Biden administration working group, tasked with recommending changes to the law that would “secure supply chains” while also protecting people and the environment, released its long-awaited reform report. It’s an impressive proposal, and could be quite meaningful — if it’s ever implemented.

Thanks to the 1872 Mining Law, just about anyone can claim exclusive rights to mineral deposits on federal land, simply by “locating” or “staking” a lode or placer claim and filing it with the Bureau of Land Management — with no rent or public comment process or tribal consultation or environmental review or bidding process necessary. The claimant does have to pay $165 per year to keep the claim active, but even that fee is often waived. Once a mining permit is obtained, the company can dig in and extract millions, and sometimes billions, of dollars’ worth of lithium, copper, gold, tellurium or uranium — minerals that, may I remind you, actually belong to the American public — without paying a cent in royalties.

So, yeah, the system could use a tweak or two.

The Safford Mine, an open-pit copper mine located in Graham County, Arizona, began production in 2008. The Bureau of Land Management traded land on which the mine now sits. Credit: zeesstof / CC via Flickr

The report is a densely written 169 pages, but these are the suggestions that caught Landline’s attention:

Replace the claim system with a leasing system. This would basically put hardrock mining on a par with oil, gas and coal development on public lands, which is governed by the Mineral Leasing Act of 1920. (I know, that law’s outdated, too!) Instead of staking claims, industry would nominate parcels for lease. Those parcels would be subject to public input before being put up for competitive bidding, and the winning bidder would pay a bonus and regular rent until mining begins. Such a leasing system, the report says, would “enhance comprehensive resource management and allow American taxpayers to capture a share of the revenue generated by the production of publicly owned resources.” Makes sense to us!
Put a royalty on minerals produced from federal lands.No s%^t, Sherlock! Oil and gas and coal producers pay a 12.5% royalty — sometimes higher — on the resources they pull out of public land; why shouldn’t hardrock miners do the same? The minerals belong to the public, after all, so the public should get something back. The recommended range — 4% to 8% — is still low, but it’s better than nothing, which is exactly what mining corporations have been paying for 151 years.
Prepare a programmatic environmental impact statement that incorporates mining into land-use planning. By doing this, the agencies could — for the first time — identify areas where hardrock mining is actually appropriate, rather than indulging in the free-for-all we have today. Mineral development could be directed to high-value, low-impact areas in a way that allows for “meaningful, robust, and early consultation between the federal and tribal governments,” as the report recommends. And it would open the door to incorporating Indigenous knowledge into long-range land-use planning, as well as into the environmental and permitting review process.
Authorize federal land agencies to blackball operators based on bad behavior.Duh!
Create a process that allows federal land agencies to withdraw areas from mining while still permitting conditional development. A national monument designation, for example, bans all new mining. This new category would allow mining if the operator commits to “heightened environmental and cultural protection standards.” Defining “heightened standards” and enforcing them won’t be easy, but the effort to find middle ground is admirable.
Increase claim maintenance fees. The annual $165 maintenance fee is low enough that speculators can stake claims and hang onto the parcels indefinitely, at least until uranium or lithium prices hit the roof and the time is right to sell out. Cranking up these fees could reduce speculation and raise badly needed funds for abandoned mine reclamation.
Strengthen financial assurance requirements. Corporations must have the cash they need to clean up their messes — even if they go belly-up.
Create a reclamation fee to help pay for abandoned mine cleanup. More than 100,000 abandoned mine sites litter the West, and many of them are contaminating local waters or otherwise harming the environment. With the original miners dead and gone, someone’s gotta pay to clean things up. Given a choice between taxpayers or mining corporations, I’ll take the latter, thank you very much. The Obama administration proposed a 7-cent fee on every ton of ore produced (as opposed to a royalty on the value of the mineral produced), which would have raised about $200 million per year.
Require adherence to global tailings-management standards. Mill tailings, mining waste rock and smelter slag create a massive, often toxic, waste stream. In some cases, the waste piles have nastier impacts than the giant hole in the ground; breached tailings dams have caused some of the world’s most catastrophic mining disasters. So, yeah, we might want to get a tighter handle on how they’re managed.
Enact Good Samaritan protections. Nonprofits and other non-mining entities often hesitate to do remediation work at old mines, especially those draining highly contaminated water, for fear of incurring liability under federal clean water laws. For years, advocates have urged Congress to pass legislation allowing the well-intentioned to conduct cleanups without having to worry about one day having to pay for something like the Gold King Mine spill. The working group agrees, recommending liability limits, with conditions — and just days after the report was issued, a group of bipartisan lawmakers introduced Good Samaritan legislation in the Senate.
Encourage mining and reprocessing at previously disturbed sites. This could be helpful under the right circumstances, since it would enable a mining company with the necessary resources to “adopt” abandoned mines and accept responsibility not only for any new messes that it makes, but also for the existing messes left behind. And bringing in new milling technology to extract valuable — and often harmful — metals from old waste dumps and tailings piles makes sense, as long as the site is eventually reclaimed.
Prohibit mines that need perpetual water treatment. This is another no-brainer. It also may be tough to get through, though: There are already hundreds of draining mines across the West that require perpetual water treatment.
Permanently end patenting of federal land mining claims. The 1872 Mining Law allows claimants to patent — or assume title to — their mining claims. In 1994, Congress put a moratorium on patenting, but only on a year-to-year basis, meaning it has to renew the ban annually. This change would make the ban permanent.

Indigenous nations and conservation groups welcomed the report, but pointed out that it will remain basically meaningless unless and until its recommendations are implemented, either by Congress — which could take years — or by an executive-branch rulemaking. Still, given the flurry of new mines on public lands, there is a growing sense of urgency to implement reforms.

Three men in the Copper Canyon Co. Mine on Horseshoe Mesa in the Grand Canyon, 2,500 feet below the South Rim, circa 1907. Credit: National Park Service

Nevertheless, mining-state politicians such as Sen. John Barrasso, the Wyoming Republican, and Nevada Democratic Sens. Catherine Cortez Masto and Jacky Rosen are pushing back, claiming, without much basis, that new regulations will harm the mining industry. Never mind that, for now, at least, the industry will likely be allowed to continue to run rampant over the land and the people, just as it’s done for the last 151 years.

Meanwhile, the protectors of that land will fight back, with or without reforms. “The Havasupai Tribe has fought for decades to protect our beautiful water and traditional cultural lands from the harmful effects of mining, one of the greatest threats to our survival as a people,” said Havasupai Tribal Chairman Thomas Siyuja Sr. in a statement. “We respectfully ask that you place the full weight of your Administration in support of these recommendations. We will never stand idle as our land and water are destroyed.”

**Hold the Line: Stories from HCN and elsewhere that are worth your time**

When the Biden administration restored Bears Ears National Monument to its pre-Trump era boundaries, it did more than increase the protected acreage. The move also brought in five tribal nations as co-managers. Anna Smith checks in on how that process, as well as tribal co-management of public lands in general, for High Country News. | High Country News

The late Charles Wilkinson, a law professor, scholar and author, left a tremendous legacy on the West’s public lands and on the work we do at High Country News. He was also a “true friend to Indian Country,” writes Daniel Cordalis (Diné) and Kristen Carpenter. It’s a lovely remembrance of a wonderful and influential person. | High Country News

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Your news tips, comments, ideas and feedback are appreciated and often shared. Give Jonathan a ring at the Landline, 970-648-4472, or send us an email at landline@hcn.org.