Rethinking Mining Regulations

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Could the 1872 Mining Law finally get a makeover?

By Jonathan Thompson

In 1887, Olaf Arvid Nelson, aka the Mighty Swede, was working at the Sampson mine on the slopes of Bonita Peak in the San Juan Mountains above Silverton. Nelson was no geologist, but he had spent years mining and prospecting in the area, and he sensed that there was a thick, rich vein in the slope below the mine he was laboring in. And so, in April of that year, he quietly staked a 1,500-foot by 300-foot lode claim on Bonita Peak’s slope. He called it the Gold King.

Nelson acquired the right to mine this 10-acre chunk of the American public’s land, virtually at no cost to him, thanks to the 1872 Mining Law, which makes  “all valuable mineral deposits” in the public domain “free and open to exploration.” After Nelson died in 1891, the same law gave his widow, Louisa, the right to patent the Gold King claim, effectively privatizing the parcel for a few bucks per acre. She turned around and sold it to eastern capitalists, who turned the Gold King into one of the most profitable operations in the San Juans. And, once again, the mining law allowed them to extract millions of dollars’ worth of gold and other minerals without paying a cent of royalties.

The 1872 Mining Law has left perhaps the most enduring legacy of any federal law or policy on the West. It allowed—even encouraged—individuals and corporations to stake at least seven million claims, ranging from five to forty acres each, across the Western U.S. Tens of thousands of those were patented, or privatized, leaving behind chaotic land-ownership patterns in the high country around Telluride, Silverton, and Ouray that create headaches for county officials. The law contains no provisions or funding for cleaning up after mining; now as many as half a million abandoned mine sites are scattered across the West, many of them still polluting streams and other waterways with acidic, heavy metal-laden water.

It would be one thing if the law had been confined to the dustbin of history back in, say, 1974, when the Government Accountability Office called for major reforms. But in fact, not only is the law still in effect today, it also hasn’t been fundamentally altered since President Ulysses S. Grant signed it 151 years ago, making it the most pesky and persistent of the outdated natural resource policies that the late scholar Charles Wilkinson aptly dubbed the “Lords of Yesterday.”

Indeed, over the last few years, modern-day Olaf Arvid Nelsons have used the antiquated law to stake thousands of uranium, lithium, copper, and potash mining claims in western Colorado, southeastern Utah, and even along the fringes of Bears Ears National Monument. This high-tech repeat of the late 19th century gold rushes is happening with very little public input or regulatory oversight. That has sparked new efforts to finally dethrone—or at least reform—the mining law “lord” at last.

In early September, a Biden Administration working group released its recommendations for tweaking the law to “secure supply chains” of so-called green metals used in electric vehicles, batteries, and other clean energy applications, while also better protecting people and the environment. It’s an impressive list, and could be quite meaningful—if the changes are ever implemented.

The report is a densely written 169 pages, but a few of the recommended reforms stood out:

  • Replace the claim system with a leasing system. This would basically put hardrock mining on par with oil, gas, and coal development on public lands, which is governed by the Mineral Leasing Act of 1920. Instead of staking claims, industry would competitively bid for parcels that had been through an environmental review. 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.”
  • Put a royalty on minerals produced from federal lands. Oil and gas and coal producers pay a 12.5 percent royalty—sometimes higher—on the resources they pull out of public land. Hardrock miners pay absolutely nothing. This would levy a 4 to 8 percent royalty.
  • 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.
  • Create a process that allows federal land agencies to withdraw areas from mining while still permitting conditional development. 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. That way if the company goes belly up, there will still be funds to clean up the mess.
  • 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.
  • Require adherence to global tailings-management standards. Mill tailings, mining waste rock, and smelter slag create a massive, often toxic, waste stream that can have nastier impacts than the mine itself. The Idarado mill tailings, for example, were piled up on Telluride’s edge for years after the mine shut down in 1978. They contained elevated lead levels (1,300 to 10,000 ppm), as did some Telluride kids’ blood. Millions were spent to remediate the public health hazard.
  • 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 legislations in the Senate.
  • Prohibit mines that need 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.

The Gold King Mine flourished until a 1908 blaze destroyed the mine’s structures and killed six men trapped inside. The mine never really recovered, operating in fits and starts until it shut down in the early 1920s. Some eight decades later the main mine opening began to ooze orange, acidic, heavy metal-laden water, becoming one of the worst mine-related polluters in the state. In August 2015, contractors working for the U.S. EPA began poking around in the mine opening to investigate the pollution, breaking an earthen dam of sorts and releasing a 3-million-gallon torrent of nasty water that sullied more than 100 miles of the Animas and San Juan Rivers. The disaster has cost taxpayers tens of millions of dollars, and the price tag continues to rise.

It’s not clear whether mining law reforms could have prevented the disaster, but had they been implemented five decades ago, when advocates and governmental agencies began calling for change, there would now be a big pot of money for funding the cleanup. And, almost without a doubt, implementing reforms now—before the new green metals and uranium mining boom reaches its apex in this part of the world—would help avert the Gold King catastrophes of the future.

1 thought on “Rethinking Mining Regulations”

  1. Thank you so much for writing this article, Jonathan. I think this is an incredibly important topic that really needs to have more open discussion in this state. While the history of mining in this country has left a bad taste in the mouth of practically everyone not directly involved in the mining industry, and for good reason, the fact remains that there are valuable and useful hard rock minerals that can and I believe should be accessed using modern techniques that do not allow for destruction or pollution, and helps enrich citizens in areas where mining is performed. I loved all of your recommendations, especially the ones about replacing the claim system with a leasing system and putting a royalty on hard rock minerals produced from federal lands. The latter one I find especially important, as I think citizens would be more open to reopening the mining saga in Colorado if they were to see a financial benefit rather than have all the profits go to the few people actually involved with the mining companies themselves. This is especially relevant in the modern era with modern tech, which eliminates much of the need for human labor. Locals need a piece of what is removed from their lands.

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