The Mining Law of 1872

    Most FR&R readers have heard about the ongoing restoration of Montana's mine-blighted Blackfoot River by the Blackfoot Challenge, a group whose partners consist of 20 state and federal resource agencies, six local agencies, nine local foundations and corporations, 27 NGOs, eight schools and five communities. The work has been impressive and encouraging. But it isn't anywhere near complete, nor is it ever likely to be. And were it not for the 1872 Mining Law, virtually none of it would be necessary.

    More than 100 abandoned mines still ooze bright-orange acid, and heavy metals such as arsenic and cadmium, into Blackfoot tributaries. And when the river swells with snowmelt its water mingles with waste-rock and tailings dumps, picking up more poisons. A 1975 flood blew out the 500-foot-long Mike Horse Mine tailings dam, causing a massive kill of browns, westslope cutthroats and brookies, and poisoning the river to the extent that 13 years later the abundance of cutthroats a year or more old was less than a quarter of what it had been before the event. Sixteen years after the spill stoneflies and brown trout 46 miles downstream still contained dangerous levels of cadmium. Fishery inventories conducted between 1990 and 2001 in 88 tributaries revealed significant degradation in 83.

    Similar restoration, spearheaded by TU, is underway in the high country of the Gunnison National Forest on Colorado's Upper Arkansas River. But, again, the work isn't anywhere near complete, there is no apparent end to it, and it wouldn't be necessary if the law had required hardrock miners to reclaim and detoxify watersheds, and to invest in environmental safeguards. The watershed is honeycombed with abandoned gold and silver mines, including Asarco and Newmont's California Gulch mine outside Leadville, a major Superfund site. And it is festooned with toxic waste rock and tailings, all sending a witch's brew of acid and heavy metals into the system. Despite all this pollution the river had produced trophy brown trout during the late 20th Century. But diminishing flows and the resultant concentration of poisons reduced aquatic insects and stream cover to the point that, in 2001, the state was obliged to strip the river of its "Gold Medal" designation.

    Enlightened members of Congress and the executive branch have been trying to reform the Mining Law for decades. On the Senate floor Sen. Dale Bumpers (D-AR) used to cry out "Poor ol' Uncle Sucker! Poor ol' Uncle Sucker!" as he read off long lists of public lands that were sold for a song to hardrock-mining companies. In the executive branch no one fought harder to bring hardrock mining out of the 19th Century than Bruce Babbitt, interior secretary during the Clinton administration. "Why am I giving $10 billion of the . . . assets owned by American citizens to a company that's not even an American company?" demanded Babbitt. It was a good question.

    Traditional abuses of the Mining Law included purchases of public land for $2.50 or $5 per acre by parties who claimed they were after minerals but who actually developed the land or sold it at fair market value. That pretty much ended in 1994, however, when Congress imposed a funding moratorium (continually renewed since then) on processing applications for land purchases ("patents") by hardrock miners. Although this applied only to new patents that hadn't gotten very far in the application process and although all hardrock miners were free to stake claims and to mine without actually owning the property, the moratorium saved public lands worth billions of dollars.

    But the moratorium was a Band-Aid. Since then, and before, all legislative attempts to reform the Mining Law itself have been torpedoed by the powerful mining lobby and the legislators it finances — most notably Sen. Harry Reid (D-NV), now majority leader and whose campaigns, according to the non-partisan Center for Responsive Politics, have been underwritten by mining interests to the tune of $270,00 since 1989.

    Babbitt reformed the Mining Law as much as he could as interior secretary. Citing an existing provision in the Federal Land Policy and Management Act that proscribes "unnecessary and undue degradation of public lands," he instructed the BLM to deny hardrock mining in environmentally sensitive areas. Previously, the BLM, Forest Service and the American public had believed there was no recourse, that miners had a property right on the public domain.

    Enter the administration of George W. Bush. At the behest of the hardrock lobby and Sen. Reid and his allies — especially Senators Larry Craig (R-ID), Conrad Burns (R-MT) and Frank Murkowski (R-AK) — the Bush team promptly reversed most of Babbitt's regulatory reforms, including specific standards for protecting water quality. So now the only hope is to bring the 1872 Mining Law into the 21st Century through legislation.

    Never has the opportunity been riper. Democrats control Congress. Burns and Murkowski are gone; Craig's airport men's room caper has rendered him politically impotent; and Reid, seeing himself surrounded and increasingly unfriended, has recently been making noises about reform that sound almost reasonable. Suddenly, it's not just the enviros complaining. After twice voting the best friend the Mining Law ever had into the White House, sportsmen — even some of the most conservative — finally get it. Educated and led by the brightest of their numbers — from TU, the National Wildlife Federation and the Theodore Roosevelt Conservation Partnership, who call themselves "Sportsmen United for Sensible Mining"--they are increasingly in the faces of their elected officials.