The 1872 General Mining Act has shaped the opportunities, behavior and effects of the hardrock mining industry for almost a century and a half. The Act’s creation of the claim-patenting process was a natural complement to the 1862 Homestead Act, as both acts were intended to help settle and develop the West.
The mission of the 1872 mining Act was to promote development by both facilitating and governing mineral prospecting and mining on about 350 million acres of public domain lands, excluding designated Wilderness and National Park areas. This acreage, west of the Great Plains, includes about 2/3 of the lands the federal government holds in trust for the public.
It governs all “hardrock” mining, including platinum, gold, silver, copper, lead, zinc, uranium and tungsten.
The 1872 law assumes a “right to mine,” and defines mineral extraction as the “highest and best use” of the land. It establishes the claim-staking process on public lands. The provisions of the law lay out the five steps for creating claims, dividing claims into “lode,” for minerals solidly embedded in the earth – and “placer,” for minerals which have settled in sand or gravel deposits, primarily gold.
Up until 1994, claimants could obtain a patent, or title, to claimed land for $2.50-$5.00 per acre. That price did not change over the 122 years in which land patents were issued.
The 1872 Mining Law was effective at helping to colonize the west. By 1900 more than a million claims had been staked. Most did not produce valuable ore, but the small percentage that did were part of an engine of staggering wealth creation by American extraction industries. In 2018, the top 40 mining companies operating in the US generated a net profit of approximately $66 billion.
Modifications to the General Mining Law have been mostly minor, leaving its fundamental provisions intact. Attempts at reform began as early as the Nixon years, with Nixon himself urging the return of public lands to the public.
In 2020, why do many people believe that the mining law needs reform? As fossil-fuel engines, electric generation, mile-deep drilling and chemical methods of mineral extraction came into use, the speed of extraction and the scale of land disruption grew phenomenally. Carolyn Shafer, of Patagonia Area Resource Alliance (PARA), stresses that in the 21st century, “It’s not your grandfather’s mining anymore.”
In the last few decades, mining – specifically metal mining – became the most polluting industry in the US, according to the Environmental Protection Agency’s annual Toxic Release Inventory report. Revisionists of the law want regulations modified to bring mining law from the 19th to the 21st Century.
There is also the need for funds to cover post-mining costs which the old legislation shifted onto the public’s lap. “Post-mining costs” are a legacy of damage from when mines were abandoned, often because mining companies go bankrupt and evade their responsibilities. Acid mine drainage, aquifer pollution, tailings seepage and tailings dam failure are the most dramatic and toxic parts of a mine’s legacy.
Nationwide, abandoned mines have polluted 40% of the headwaters of western watersheds, according to a U.S. Environmental Protection Agency (EPA) report in 2000.
In Arizona, the national watchdog group Taxpayers for Common Sense states “Arizona’s mines could leave taxpayers with potential cleanup costs of more than $3.8 billion. This estimate is based on Arizona’s history of mine abandonment and a cleanup cost of $50,000 per acre. Without real reform of the 1872 mining law, proposed mines could add millions more.”
Beyond the obvious visible effects of mine-generated pollution on water, air and soil, industrialized mining also destroys wildlife and its habitats, as well as the esthetic – and to some, spiritual – values of beautiful landscapes. However, federal land managers say the Mining Law limits their ability to protect places of unique scenic beauty, unspoiled nature and the highest biodiversity. These include designated National Monuments, National Parks, Wilderness Study Areas, Roadless Areas, and Wild and Scenic Rivers. Without the exemptions for private land ownership which went along with the patenting process, new mining proposals for public lands would undergo much fuller impact studies, with greater public involvement.
In the last ten years, mining law reform has been championed by Arizona’s Rep. Raúl Grijalva, who joined Rep. Alan Lowenthal of California in authorship of “H.R. 2579, The Hardrock Leasing and Reclamation Act of 2019,” introduced by Grijalva on May 9, 2019.
The resolution was approved on Oct. 23, 2019 by the House Natural Resources Committee, which advances it to consideration by the House. The major provisions of the bill are:
•“Establish a 12.5% royalty on new mining operations – the same amount as oil and gas – and an 8% royalty on existing operations, except for miners with less than $50,000 in mining income.
•Require meaningful tribal consultation.
•Eliminate the exalted status that mining currently enjoys on public lands, leveling the playing field with all other uses of public lands – such as grazing, hunting, and energy development – allowing it to be managed through existing land-use planning processes.
•Make certain special lands remain off-limits to hardrock mining.
•Require mining operators to report data on the amount and value of minerals being extracted from public lands.
•Establish strong reclamation standards and bonding requirements.
•Create a restoration fund to reclaim and restore abandoned mines and areas impacted by mining activities.
•End the outdated claim-staking and patenting system that gives miners unfettered access to nearly all public land in the United States.”
If passed by the House, the bill would go to the Senate. If passed by the Senate, the bill would then cross the President’s desk, where, if not vetoed, it would become law.
Because of the large profits and high risks inherent in mining, reform legislation is strongly divisive. The resolution’s most prominent supporters are national environmental groups, such as the National Wildlife Federation, Sierra Club, the Center for Biological Diversity, and Earthworks. They are joined by a growing constituency of groups and citizens demanding public policy based on protection of water, air, soil and living systems. Many indigenous tribes support the resolution. Locally, Austin Nunez, Chairman of the Tohono O’odham Nation’s San Xavier District near Tucson, has stated “Because of this outdated law, our homeland, the resting place of our ancestors, may soon be transformed into a mine pit. We must have the option to protect our special and sacred lands.”
In opposition to the resolution, AZ Rep. Paul Gosar, R-Prescott, called it “little more than a politically motivated bill that has no chance of getting through the Senate or signed by the President.” According to the National Mining Association (NMA), a leading US mining industry lobbying and trade organization, the industry feels they already pay enough royalties and taxes and argue that by exceeding other nations’ taxation of the industry, the US would hurt their global competitiveness. They believe that the Forest Service’s ongoing enforcement of regulations provides sufficient regulation of the industry on public lands.
Locally, South32, whose potential mining profits have been preliminarily estimated at one billion dollars a year for ten or more years, could be significantly affected by this legislation. South32’s Hermosa Project Communication Director Jenny Fiore confirmed that her company supports the position of the American Exploration and Mining Association, of which South32 is a member. AEMA’s online response about the bill includes this quote from Executive Director Mark Compton: “The sweeping changes in Rep. Grijalva’s legislation are unnecessary and a disaster in the making for the domestic mining industry and for America.” At the state level, AZ Governor Doug Ducey is likely to continue attempts to decrease regulation in mining and other areas.
At the Federal level, mining law reform by the current Administration seems highly unlikely, considering the Executive Branch’s recent rollback proposals decreasing National Environmental Protection Act (NEPA) and other environmental requirements for many industries, including mining. Major national environmental groups are preparing suits against this deregulation, so it is possible that the federal regulatory rollbacks could be held off until the fall election. Whatever the outcome of those lawsuits, the eventual success of mining reform legislation will likely depend on the on the make-up and receptivity of the 117th Congress, to be elected this November.