Most Recent Action   Background   Hearing Summary 

Update on Crown Jewel Mine Decision (1-4-00)

Most Recent Action
During the last-minute debate over the fiscal year 2000 appropriations bills, President Clinton and Majority Leadership included language on five-acre mill site limitations and on Sec. 3809 surface regulations on hardrock mining.  These two topics have been heatedly debated in Congress for the last few years.  In 1997, Department of the Interior Solicitor John Leshy released an opinion on the five-acre mill site provision.  The final appropriations bill mill site language will apply the opinion only to mining operations that began after the November 1997 opinion was released.  The agreement also allows the Bureau of Land Management to release revised Sec. 3809 regulations on hardrock mining in early 2000 provided that the new regulations "are not inconsistent with the recommendations contained in the National Research Council report entitled 'Hardrock Mining on Federal Lands'" or existing statutes.

The House Subcommittee on Energy and Power held an oversight hearing on mining law reform on August 3. The hearing focused on two major issues both relating to legal opinions written by Department of the Interior Solicitor John Leshy. It continued several months of debate on Capitol Hill about the Crown Jewel Mine decision and the solicitor's mill site opinion, and brought attention to another controversial decision regarding mineral exploration in the Mark Twain National Forest in Missouri, 15 miles from the Ozark National Scenic Riverway. Fiscal and environmental mining law reforms were also discussed. A summary of that hearing is available on this website.  Full Testimony is available from the subcommittee's website.

Following a June hearing, Sen. Larry Craig (R-ID) attached a rider to the Interior appropriations bill for Fiscal Year 2000 (S. 1292) that would make permanent the earlier reversal of the Department of Interior's mill site opinion. In response, Sen. Patty Murray (D-WA) proposed an amendment on the floor which would have affirmed the Interior opinion. That amendment was tabled on July 27 by a vote of 55-41. Meanwhile, Reps. Jay Inslee (D-WA), Nick Rahall (D-WV), and Christopher Shays (R-CT) offered an amendment to the House version of the Interior appropriations bill which supports the Interior mill site opinion by denying funding to process any application that does not conform to the solicitor's opinion. That amendment passed by a vote of 273-15l.

The House passed its appropriations measure in July, but the Senate will not vote on its version until September.  The fate of Leshy's mill site opinion will then be debated by a House-Senate conference. President Clinton has threatened to veto the appropriations bill if it contains several provisions he finds objectionable, including the Craig amendment.

Background
The 1872 Mining Act is the fundamental law that governs the hard-rock mining industry.  In 1997, Department of the Interior Solicitor John Leshy produced an opinion that interpreted this law to grant mining operations one mill site claim to be used for mine waste dumping for each mine claim.  This amounts to five acres of mill site property for every twenty acres of mining land.

In March 1999, Leshy rejected a proposal for the Crown Jewel Mine in Okanogan, Washington, which had been in the planning process since 1992, because it proposed mill site acreage far exceeding the limit of Leshy's opinion.  In the spring on 1999, Sen. Slade Gorton (R-WA) attached a rider reversing the Crown Jewel decision to an Emergency Supplemental Appropriations Bill to provide relief funding for Kosovo war refugees and victims of Hurricane Mitch (P.L. 106-31).  President Bill Clinton signed the bill despite opposing Gorton's amendment.  Gorton then began campaigning for a more permanent reversal.

More information on efforts to reform the 1872 Mining Law is also available.


Oversight Hearing on Issues Related to the
Crown Jewel Mine Decision
Senate Subcommittee on Forests and Public land Management
June 15, 1999

This Hearing's Bottom Line
This hearing was poorly attended by senators at least in part because of a series of floor votes.  Department of Interior Solicitor Leshy and mining industry representatives presented nearly opposite views of the language of the 1872 Mining Act and the 127-year history of its enforcement.  Supporters of the Crown Jewel Decision repeatedly called for comprehensive mining reform.  Several witnesses testified as to the economic and environmental impact of the proposed mine, but these issues do not seem to be the focus of the matter at hand.  Subcommittee chairman Larry Craig repeatedly expressed his suspicion that Leshy and the administration are attempting to force Congress to pass mining reform legislation.  He also acknowledged that this is part of a ten-year debate between himself and Leshy.

Members Present
Sen. Larry Craig (R-ID), subcommittee chairman  Sen. Jeff Bingaman (D-NM), committee ranking Democrat 
Sen. Slade Gorton  (R-WA)

Opening Statements
Sen. Larry Craig (R-ID) opened the oversight hearing by stating that "given the potential impact [of the Crown Jewel decision] and that it appears to fly in the face of 127 years of Department of the Interior decisions," the subcommittee would "carefully consider" the issue.  He added that he was pleased "Congress rescued that particular project" earlier in the year, and vowed to "immediately report" to Sen. Gorton's Interior and Related Agencies Appropriations subcommittee.  He read a statement.... from Sen. Harry Reid (D-NV) who was scheduled to be the hearing's first witness but was unable to attend.  Sen. Slade Gorton (R-WA), who represents the proposed mining site area, arrived at the hearing during the second panel and immediately gave his opening statement before leaving again.  Gorton stated that "Laws are not made by unelected bureaucrats whose duty it is to administer the laws whether they like them or not."  He acknowledged the need to debate the issue, but said that debate "should be carried on here in Congress by elected representatives and nowhere else."  Gorton dismissed suggestions that the Crown Jewel controversy is about the environment.  He concluded that "It is only because the Department of the Interior has reversed its own rules, regulations, and policies for perhaps a period longer than a century, unexpectedly, at the last minute, and practically without notice that we are here today."

Panel 1
John Leshy, Solicitor, Department of the Interior

John Leshy defended his mill site opinion and the Department of the Interior's Crown Jewel decision.  He argued that neither signifies a change of policy but rather clarify the way the 1872 Mining Act "has always been understood... [with] not a lot of controversy or misunderstanding."  He addressed criticisms that the Department of the Interior (DOI) acted without congressional backing, stating that the 1960 amendment to the mining act supported his opinion.  Leshy explained how he originally came to review the mill site matter after DOI employees noticed discrepancies in the application of the law.  He asserted that this was "not the end of hardrock mining" because land exchanges and alternatives to millets are available.  Throughout his testimony, Leshy emphasized the need for comprehensive mining reform instead of handling each problem in the 1872 Mining Act individually.

During the question and answer period, Sen. Craig harshly criticized Leshy, accusing him of being uncooperative and adding "one might think the Department of the Interior is trying to legislate through executive order."  He quoted Leshy's own writings of the 1980's that stated only crisis or consensus would provoke mining reform and also stated bold administrative action would force Congress to act.  Craig asked Leshy if he was "intentionally making the situation unworkable" in an effort to force Congress to make mining reforms.  Leshy responded that he acted only because DOI lawyers came to him "saying 'we don't think BLM [Bureau of Land Management] is handling this right.'"  Leshy said that "at some point in the last several years" the BLM apparently stopped applying the law as it had since 1872 and that his opinion was only a return to past practice.

Sen. Bingaman inquired specifically about the feasibility of land exchanges and other alternative ways of handling situations like the Crown Jewel mine.  Leshy replied that he was prepared to use land exchanges "specifically to get around this problem."  In response to further questioning by Bingaman, Leshy clarified that he expects his opinion to be applied prospectively only and that an effort will be made to "avoid disruption" of current mining projects.  He added that he thinks it "premature to say this brings the industry to its knees."  He urged Congress to "fix all, not part" of the problem, and develop comprehensive mining reform.  Craig concluded the question and answer period by asking Leshy to supply him with records of the DOI's handling of mill site matters and land exchanges for the past 10 years.

Panel 2
Roger Flynn, Western Mining Action Project, Denver
Roger W. Jeppson, Shareholder, Hale Lane Peek Dennison Howard and Anderson, Reno
Steve Alfers, Managing Partner, Alfers and Carver, Denver

Roger Flynn testified on behalf of concerned conservation groups.  He called Leshy's decision "sound, very sound."  He stated that the 1872 Mining Act was not written for open pit mining and does not serve the needs of the industry today.  He said "comprehensive reform may be necessary."

Roger Jeppson argued that the original intent of the 1872 mining law was not consistent with Leshy's opinion.  In sharp contrast to Leshy's testimony, he said that over the past 127 years "not a single case holds that the law was interpreted that way."  Because of differences in claim sizes, he argued the "one-to-one rule is really five-to-twenty" and that "the law is not and never was that you get five for twenty."

Steve Alfers testified that "if allowed to stand" the Crown Jewel decision "sets into motion significant changes in mining law."  He asserted that the law limits the size but not the number of millets a company should be allotted.  He urged the subcommittee to make Gorton's earlier amendment "permanent and universal."  Alfers said it is "not acceptable" to leave such matters to the courts because "justice delayed is justice denied."  He emphasized that the decision had deterred investment in mining.

During questioning, Alfers continued to insist that even the cases Leshy cited in making his mill site decision in fact supported the mining industry's interpretation of the law.  He said the intent of the law was not to give away more land than was necessary, and so it was allotted by necessity.  Jeppson agreed that "the rule has always been, if you need it,  you get it."

Panel 3
David Kliegman, Executive Director, Okanogan Highlands Alliance
Joe Pakootas, Chairman, Colville Business Council
Gerald L. Shaheen, Group President, Caterpillar Equipment Company
Danny Robertson, Manager, Crown Jewel Mine
Jim Walker, Mayor, Oroville, Washington

David Kliegman testified that opponents of the Crown Jewel mine "have concluded that the risk to public health, safety and the environment is not worth the risk."  He cited many environmental concerns including destruction of head waters as "the Crown Jewel operation would blast off the top of one of the highest mountains in the region."

Joe Pakootas also focused on the environmental impact of the mine and the concerns of Native Americans that the mining operation will impede their ability to exercise their tribal rights.  He seemed particularly concerned that water would become contaminated with heavy minerals.  He said the Colville tribe supports Leshy's 1997 mill site opinion and the Crown Jewel decision.

Gerald Shaheen testified as to the nation-wide economic benefits of hard-rock mining.  He explained how different parts of the machines miners buy from Caterpillar are produced in different areas across the United States.  He said the mill site opinion threatens the hard-rock mining industry and therefore threatens the American economy.

Danny Robertson stated in his testimony that the Crown Jewel mine presents "no real environmental issues."  He said simply that "you can't put rock from a 20 acre hole on 5 acres."  Robertson chronicled the Crown Jewel decision process and argued that the Department of the Interior gave no indication that there was a problem until the eleventh hour, pulling the plan of operations at the last possible minute.  He also emphasized how financially destructive the decision was.

Jim Walker testified on behalf of the 1,900 residents of Oroville, Washington.  He emphasized that the area Crown Jewel wants to mine is a financially destitute, historic mining area.  "The prospect of the Crown Jewel Mine project gave us hope," he said.  According to Walker, the mine had promised to create about 70 local jobs and the proposal enjoyed strong county-wide support.  He said the alliance that opposes the mine represents "a very small minority of the community" and suggested holding the alliance responsible for all costs, including lost wages, associated with repeated appeals.  He also told the subcommittee that the mining company had secured trust funds and insurance for the project.  He called the situation a "true emergency" and said that some groups and the administrative agencies that oppose the Crown Jewel project "would like to abolish all mining."

During a brief question and answer period, Sen. Craig expressed concern over water issues which he stated have been an issue in his own state.  Robertson assured him the state of Washington and conservative estimates by consultants all agreed the project would not raise water quality concerns.  Kliegman contested this statement.  Craig acknowledged the importance of environmental issues but said the real issue of the Crown Jewel decision has nothing to do with the environment.

Panel 4
Stephen D'Esposito, President, Mineral Policy Center
Patrick J. Garver, President, Barrick Resources (Speaking on behalf of the National Mining Association)

Stephen D'Esposito told the subcommittee that debate of interpretation of law belongs in the courts.  He said the issue should be handled in "an open debate about the whole Mining Law--not via a rider that would expand the Mining Law for the first time in 127 years."  D'Esposito said the legislators who wrote that law "could not have envisioned the potential environmental impacts of modern mining" and as a result the law "sends the wrong signals to mining companies.  It does not reward responsible behavior and it fails to penalize those with poor performance records."  D'Esposito added that "The mill site limit is a symptom, the problem is that the 1872 Mining Law is outdated.  It does not fit today's mining industry, it does not protest taxpayers, and it does not protect the environment."  He recommended that the mill site limit be enforced until the Mining Law is reformed.  He repeatedly emphasized that "the industry should not be granted one-time exemptions to the parts [of the law] they do not like or that no longer fit."

Patrick Garver testified that the mill site opinion "is not an objective legal analysis.  Is advocasy--pure and simple... a cleverly packaged rewrite of existing law."  He said the opinion represents "the 180 degree shift the solicitor has taken."  Citing the BLM Manual and BLM Mineral Examiners Handbook, he said "reform advocates have been aware of the BLM's interpretation of the law for decades." Garver stated that the BLM knew of the Crown Jewel mill site to mining claim ratio since at least 1992 and questioned why none of the agencies involved raised this as a problem until March, 1999.  "The answer, of course," he said "is that the law doesn't say what the Solicitor says it does, and the Mill site Opinion would, in fact, constitute a wholesale change in the law regarding the use of public lands for facilities required for mineral development."

In conclusion well after Leshy left the hearing, Sen. Craig said: "We do not want this solicitor or any solicitor thinking he can write law" and "the Congress of the United States makes policy, Mr. Leshy does not."  He added that "there is no question this is a set-up" and promised to "move aggressively ahead" with legislation.


Please send any comments or requests for information to the AGI Government Affairs Program.

Submitted by AGI/AIPG Geoscience Policy Intern Althea Cawley-Murphree and Margaret Baker, AGI Government Affairs

Last updated January 4, 2000


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