The Mining Law of 1872

    It was 1872. Ulysses S. Grant was in the White House, and it would be four years before the Sioux and Cheyenne sent George Custer to sing with the unseen choir. In an effort to promote westward expansion the federal government was frantically disposing of public-domain property. Building on the Homestead Act, not yet a decade old, Congress enacted the 1872 General Mining Law, a statute designed for pick-and-shovel prospectors that basically gave away the public's land and "hardrock" minerals — such as gold, silver and copper — to anyone staking a claim.

    The astonishing thing about the 1872 Mining Law is that in 2008 it survives essentially unchanged, a testament to the political power and mendacity of the hardrock-mining lobby. A company or individual, foreign or domestic, can still acquire land and precious minerals belonging to all Americans for 1872 prices. That's $2.50 an acre for an open-pit mine and $5 an acre for a vein; but since we don't find veins of ore anymore, virtually all operations are open-pit. There's no limit to the number of claims a holder can stake, and claims can be held indefinitely. Unlike other extractive industries — which are assessed 8 percent to 16.7 percent of value for such public-domain resources as gas, oil, coal, phosphate, potash and timber — hardrock-mining businesses don't have to pay royalties. In 1989, when the Government Accountability Office reviewed just 20 hardrock-mining claims, it found that since 1970 the federal government had received about $4,500 for lands valued at between $13.8 million and $47.9 million.

    Nor do hardrock-mining companies always have to clean up their messes. They can just declare bankruptcy and bolt. Since 1977 the coal industry (not protected by the Mining Law) has contributed $7.4 billion to a federal fund that will underwrite reclamation and detoxification of abandoned mine sites. But the federal government hasn't collected a cent for this purpose from hardrock-mining companies. This despite the fact that they have taken $245 billion worth of minerals and left us with 500,000 abandoned mines (many of them Superfund sites) that belch acid and other poisons into 16,000 miles of stream, a mess that will cost taxpayers between $50 billion and $72 billion to clean up.

    The hardrock-mining industry is far and away the worst polluter in America. Although it comprises only one-third of one percent of American industrial facilities, it contributes 46 percent of the industrial pollution. The Washington D.C.-based Environmental Working Group has identified 58 toxic chemicals spewed by hardrock-mining companies, including copper, cadmium, arsenic, cyanide, mercury and lead. And according to its analysis of a federal pollution database covering 650 priority pollutants from all US industries, 18 of the top 20 polluting facilities in 2001 were hardrock mines or hardrock smelters.

    Almost a quarter of our nation, or some 270 million acres, is open to hardrock-mining claims; this public land is under the gun as never before due to soaring mineral prices on the world market. For instance, in just the past six years gold prices have doubled, and the global demand for nuclear fuel has spiked the price of uranium ore by a factor of 10. The Environmental Working Group reports an 80-percent increase in hardrock-mining claims in 12 Western states over the past five years, including 800 claims (most for uranium) within five miles of the Grand Canyon. Nationwide, there are 21,365 claims within 10 miles of national parks and other federally protected lands, 7,390 of them staked since 2003.

Although hardrock-mining is prohibited in national parks, nearby operations can devastate fish and wildlife habitat within them, as seen with the New World Mine debacle. So horrific would have been the damage done by this gold, copper and silver extraction to the trout of Yellowstone National Park that the Clinton administration saw fit to ransom them, paying $65 million to Crown Butte Mines, a Canadian company, for its property interests.

    According to the EPA, 40 percent of all Western headwater streams are being poisoned by abandoned mine waste — a statistic that naturally distresses Trout Unlimited. Chris Wood, TU's conservation VP, offers this: "There's nobody who thinks we shouldn't clean up acid-mine drainage, but we can't do it because the federal funds don't exist. We haven't collected a nickel from hardrock miners to clean up Western headwater streams. And where are all the native-trout strongholds in the West? They're all up in the headwaters on Forest Service and BLM [Bureau of Land Management] land — the backcountry roadless areas, many of which are riddled with abandoned mines. If these fish have any hope of persisting in a warming climate, we've got to make sure that those habitats are as secure as we can make them. But without funding it's not going to happen."

    Montana's Cabinet Mountains Wilderness Area is an important sanctuary for grizzlies and bull trout, both listed under the Endangered Species Act. But neither this law nor the Wilderness Act of 1964 (which grandfathered hardrock mining there) can protect these imperiled species from the 1872 Mining Law. Sterling Mining Company plans to extract copper and silver by hacking a three-mile tunnel almost 1,000 feet below the surface, venting into the storied Clark Fork three million gallons of effluent every 24 hours. A 300-foot-high pulverized waste-rock dump would cover 340 acres of public land along Rock Creek, another world-famous trout stream and important bull trout spawning habitat. And all this would go down in a seismically active area that drains into Idaho's 82,088-acre Lake Pend Oreille, a trophy rainbow fishery and the fifth-largest natural freshwater lake in the US. TU's Public Lands Initiative staffers Russ Schnitzer and Rob Roberts wrote an excellent report examining what hardrock mining has done to America's best trout waters. Entitled "Settled, Mined, and Left Behind," it describes such insults to the earth as the Summitville gold mine in Colorado, a massive Superfund site excreting cyanide and other poisons, which has razed aquatic life from a 17-mile stretch of the Alamosa River (important habitat for waterfowl and whooping cranes) and devastated surrounding farmland dependent on the water for irrigation. When the mine's owner, Canadian-based Galactic Resources, Ltd., went bust in 1992 it simply walked away, leaving a mess that, although it probably can't ever be entirely cleaned up, so far has cost US taxpayers $200 million.