Mining law reform has been high on the agenda of America’s fiscal government watchdog groups, environmental groups and mining interests for many years. Each new Congress considers a series of comprehensive proposals and occasionally small changes are made in a law that has stood for 127 years. As annual reform bills again surfaced in the 106th Congress, a crisis over the proposed Crown Jewel Mine in north-central Washington state brought the issue to center stage in the congressional appropriations process, giving the old debate a new sense of urgency which could lead to major reforms in the future.
The Miner's Law
The General Mining Law of 1872 was passed by Congress and signed by President Ulysses S. Grant to protect and encourage mining and settlement in Western territories. Law professor Charles Wilkinson wrote in his book Crossing the Next Meridian (Island Press, 1992): “From its inception, hardrock mining has been the highest and most preferred use of the public lands, and the old law extends to mining companies a ‘right to mine.’” Wilkinson also wrote that the hardrock mining system is “still a miner’s law—built on open access, free minerals, unlimited tenure, and rights to land as well as minerals.” Over the years, the 1872 Mining Law has itself changed little, although its scope has been greatly limited. The most significant changes were removal of many federal lands and types of mineral resources from the Act’s jurisdiction.
Crown Jewel Mine
In 1997, Department of the Interior (DOI) Solicitor John Leshy produced a legal opinion that interpreted the 1872 Mining Law to grant mining operations one five-acre mill site claim to be used for mine-waste dumping for each twenty-acre mine claim. Leshy later testified before Congress that it appeared that “at some point in the last several years” the Bureau of Land Management (BLM) had inadvertently begun applying the law’s “one mill site claim for one mining claim” language to grant one acre of mill site for every acre of mining claim. Leshy said one mill site claim is, and always has been, five acres, and one mining claim is, and always has been, twenty acres. He said his opinion was merely a return to past practice.
The first major impact of this opinion came in March 1999 when DOI withdrew final approval of the planned Crown Jewel Mine in Okanogan, Washington, because it proposed mill site acreage far exceeding the limit as interpreted by Leshy. Mining industry representatives became alarmed and called upon Washington’s Republican Senator Slade Gorton for help. In the spring of 1999, Gorton used his position as chair of the Senate Appropriations Subcommittee on Interior and Related Agencies to attach a provision reversing the Crown Jewel decision onto an Emergency Supplemental Appropriations Bill providing relief funding for Kosovo war refugees and victims of Hurricane Mitch (P.L.106-31). Although President Bill Clinton opposed Gorton's amendment, he signed the emergency spending bill. Gorton then began campaigning for a more permanent reversal of the DOI mill-site opinion.
Mining industry representatives testified before congressional committees that Leshy not only misinterpreted the language of the 1872 Mining Law but also misinterpreted the history of its enforcement. While Leshy argued that BLM had only recently begun granting an acre of mill site for every acre of mining claim, the industry said that this has been the practice all along. One witness testified before Congress that “The rule has always been, if you need it [mill site property], you get it.”
Environmental interests lined up behind Leshy, joining the Interior Department in asking Congress to “fix all, not part” of the problem by adopting comprehensive mining law reform. Both sides of the issue charged the other with trying to reverse 127 years of practice. Opponents of Leshy’s opinion told Congress that “if allowed to stand” the Crown Jewel decision “sets into motion significant changes in mining law.” Leshy responded that this decision is “not the end of hardrock mining,” assuring Congress that land exchanges and alternatives to mill sites are available and that an effort will be made to “avoid disruption” of current mining projects.
Sen. Larry Craig (R-ID), who has disagreed with Leshy on mining law reform matters for many years, stated in one hearing that he believed Leshy was “intentionally making the situation unworkable” in an effort to force Congress to make reforms in the mining law. Sen. Gorton stated: “Laws are not made by unelected bureaucrats whose duty it is to administer the laws whether they like them or not.” He said reform debate “should be carried on here in Congress by elected representatives and nowhere else.” In response, Leshy called on the industry to bring the matter before the courts. His opponents said it is “not acceptable” to leave such matters to the courts, because “justice delayed is justice denied.”
Recent Congressional Action
Following a June oversight hearing, Sen. Craig attached a provision to the Fiscal Year 2000 Interior Appropriations bill (S. 1292) that would permanently reverse Leshy’s mill-site opinion. An attempt by Sen. Patty Murray (D-WA) to remove Craig's amendment on the Senate floor was defeated on July 27 by a vote of 55-41. Meanwhile, Reps. Jay Inslee (D-WA), Nick Joe Rahall (D-WV), and Christopher Shays (R-CT) offered an amendment to the House version of the Interior Appropriations bill (H.R.2466) supporting Leshy's 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 273-151, setting up a confrontation between the two houses.
The House passed it's appropriations bill in July. The Senate will vote on it's version in September. Once both houses of Congress have approved the legislation, a House-Senate conference committee will decide what goes into a final appropriations measure that must then pass both houses in identical form and be signed by the President. There is speculation that President Clinton may veto the appropriations bill if it includes the Craig amendment.
When the House Subcommittee on Energy and Power held an oversight hearing on mining law reform in August, members of Congress and witnesses on both sides of the issue used the Crown Jewel controversy to support their own arguments. Pro-reform advocates said it is time the proper authorizing committees act, so that mining law issues will not again be decided by appropriations debates. Those who believe the 1872 law is sufficient argued that the Department of the Interior is trying to change the law behind Congress's back. It appears that the Crown Jewel decision will remain a battle cry for those on both sides of the mining reform debate and may even force a broader solution that has remained elusive for so many years.
Althea Cawley-Murphree is a senior at Central Washington University where she is double majoring in geology and political science.
This article is reprinted with permission from The Professional Geologist, published by the American Institute of Professional Geologists. AGI gratefully acknowledges that permission.
Please send any comments or requests for information to the AGI Government Affairs Program.
Posted January 4, 2000
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