The General Mining Law of 1872 Perpetually Revisited -- But Still Intact (3/00)

The following column by GAP Senior Advisor John Dragonetti is reprinted from the March 2000 issue of The Professional Geologist, a publication of the American Institute of Professional Geologists . It is reprinted with permission.

Introduction
The mining law of 1872, signed by President Ulysses S. Grant, began life as a replacement for the earlier mining acts of 1866 and 1870. The intent of the law was to grant free access to individuals and corporations to prospect for minerals on public domain lands, and upon making a discovery, stake a claim on the deposit. Although the law has only been subjected to minor revisions over time, its scope has been dramatically reduced by the passage of other legislation. Most notable was the creation of the National Park system and National Historic Sites, which prevented mining at those locations. Also removed from the purview of the mining act were Native American and military reservations, wilderness areas, and water and power projects. However, there have been numerous attempts to make significant changes to the statute itself, all of which have failed, resulting in a law that has remained remarkably intact for well over a century.

The Conflict
Since the dawn of the environmental movement, the battle for revision has focussed on mineral development versus environmental protection. Environmentalists have been concerned that the 1872 law contains no environmental protections, while the mining industry contends that reform may introduce stringent environmental regulations that would burden the industry. Recently this struggle has prevented Congress from revising the statute in ways that would conflict with the wishes of the Administration.  Combat has, therefore, been joined in the budgetary arena involving federal regulations and legal interpretations. In last year's budget, Congress used the power of the appropriations process to address two issues: the Department of the Interior's legal opinion on millsite size, and the Bureau of Land Management's (BLM) revision of Section 3809 regulations governing exploration and development of locatable minerals. Only the second issue will be discussed in this article. Minerals considered locatable are precious metal ores, ferrous metal ores, certain industrial minerals, and those not classified as leasable or saleable. Acquisition of locatable minerals is accomplished by staking a mining claim over the deposit and then acquiring the necessary permits to explore or mine. Leasable minerals include oil, gas, coal, geothermal resources and a few others including all minerals on the Outer Continental Shelf. Saleable minerals tend to be very common materials such as sand, gravel and stone.

National Research Council Report
With passage of the 1999 fiscal year Interior Appropriations Act, Congress decreed that BLM delay the release of revised 3809 regulations until the National Academy of Sciences (NAS) could review the existing regulations and report on their assessment of the adequacy of the regulatory framework for hardrock mining on federal lands. The charge to the Academy had three major components: 1) Identify federal and state statutes and regulations applicable to environmental protection of federal lands in connection with mining activities; 2) Consider the adequacy of statutes and regulations to prevent unnecessary or undue degradation of the federal lands, and 3) Offer recommendations for the coordination of federal and state regulations to assure environmental protection, increase efficiency, avoid duplication and delay, and identify the most cost-effective manner for implementation. Since the study targeted federal lands, the results would not only apply to the Department of the Interior's BLM lands but also to lands of the Department of Agriculture's Forest Service which together comprise 38% of the total area of the western states. The National Research Council (the operating arm of the NAS) released its report entitled Hardrock Mining on Federal Lands in September 1999, offering several conclusions and 16 recommendations. The report issued the following general conclusions:


For the complete text of the conclusions and recommendations see (http://books.nap.edu/html/hardrock_fed_lands/index.html).

Senate Energy and Natural Resources Committee Chairman Frank Murkowski (R-AK) applauded the conclusions of the NAS report stating that it confirmed to his and his western colleagues opinion that existing federal and state laws affecting mining were generally effective in protecting the environment. Shortly after the release of the Academy report, language was inserted in the omnibus FY 2000 appropriations bill allowing BLM to move ahead with its revised regulations provided they were not inconsistent with the report. At the same time, BLM released its revised 3809 regulations for public comment. The comment period remained open from October 1999 to late February 2000.  As of this writing, the comment period is still open.

Metal Mining and the Environment Booklet
On a related note, AIPG members may be interested in a newly released booklet, Metal Mining and the Environment, that addresses the environmental impacts of mining metals as well as the scientific and technological advances that modern miners use to prevent or reduce potential environmental impacts. It is published by AGI in cooperation with the Society of Economic Geologists, the Society for Mining, Metallurgy, and Exploration, Inc., and the U.S. Geological Survey with the support of the AGI Foundation.  Part of AGI's Environmental Awareness series, it is available at (http://www.agiweb.org/pubs/pubdetail.html?item=604002). Also of possible interest is a legislative update on Mining Law issues in the 106th Congress available on the AGI Government Affairs website (http://www.agiweb.org/gap/legis106/miningup99.html).
 


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.

Contributed by John Dragonetti, AGI Government Affairs.

Posted June 7, 2000


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