The Mining Law of 1872 and Reform
Read a fact sheet on S 140, the Abandoned Mine Reclamation Act of 2009
Go to Earthworks Mining Reform page for the latest information.
Many thanks to the Western Mining Action Project for supplying the legal definitions and background information on claim validity and determination used in this article.
What is the Mining Law of 1872?
In 1872 the West already teemed with miners digging the earth, blasting rock and dreaming of fortunes to be made. The Mining Law of 1872 was passed by Congress to legitimize this booming industry and to aid in the settlement of the vast public lands in the West. Prior to passage of the law there were no formal procedures to guarantee the legal “right” to mining claims.
The Mining Law of 1872 gives anyone the right to enter, stake a claim and prospect for minerals on public lands (Forest Service or BLM), no matter what other values may exist there, such as wildlife habitat, recreation, scenic beauty, or water resources. The BLM and other federal agencies regulating “multiple use” public lands often give mining highest priority because of the Mining Law. Unfortunately, once mined, the land is no longer useful for any other purposes. Under the Mining Law there are no provisions for environmental protection and no requirements for reclaiming and restoring the land when the miners are through. Federal environmental laws provide for minimal anti-degradation protection and some states have strong mine reclamation laws, although Arizona’s is not very strong. Arizona’s reclamation act deals primarily with public safety, and only nominally with environmental protection. You can read the Arizona Mined Land Reclamation Act at http://www.asmi.state.az.us/documents/rec.pdf and Rule and Regs at http://www.asmi.state.az.us/UserFiles/PDF/rr&r.pdf. Most other western states have better and stronger reclamation requirements than Arizona’s.
Our public lands are easily accessible to mining interests, including foreign owned companies. To establish a claim on public land, a miner needs to physically place markers at the corners of the 20-acre claim, file an annual assessment affidavit with the BLM and pay the annual claim maintenance fee of $125 ($170 for the first year), or file a fee waiver if they’ve done work on the claim.
Claim validity is a very important consideration at Rosemont Ranch. If the claims are not valid, Augusta most likely won’t be able to proceed with their proposal since this may be the only way they would be able to use the Forest Service lands, which they need for the project. Since Augusta plans to use the mining claims to dump their waste and not for mineral extraction (the ore body is on their private land), the question as to whether the claims are valid may have to be determined in the courts. However, it would seem that if there were valuable minerals under the claims, Augusta would not be proposing to bury them under millions of tons of waste rock. Pima County has recently requested that the Forest Service investigate the validity of Augusta’s claims.
How is the validity of a claim determined?
Under the Mining Law, all mining claims must, in order to be valid, be supported by the “discovery” of a valuable mineral deposit ( See 30 U.S.C. §§ 23, 35). The Supreme Court has endorsed at least two tests for determining whether a claim qualifies as a “valuable mineral deposit:
” Under the “marketability” test, it must be shown that the mineral can be “extracted, removed and marketed at a profit.” ( United States v. Coleman , 390 U.S. 599, 600 (1968)). According to the “prudent-person” test, “the discovered deposits must be of such a character that a person of ordinary prudence would be justified in the further expenditure of his labors and means, with a reasonable prospect of success, in developing a valuable mine.” Id . at 602.
The Court has held that profitability is “an important consideration in applying the prudent-man test and the marketability test,” and noted that “… the prudent-man test and the marketability test are not distinct standards, but are complementary in that the latter is a refinement of the former.” Id . at 602-603. Further, the test is objective, is based on the “prudent-man,” and an individual miner’s subjective belief that a deposit is “valuable” is irrelevant, for “[i]t is thus evident that the willingness of a mining claimant, grounded only in hope of success, to expend time and money in further efforts to develop a mine will not suffice.” U.S. v. Nevitt , A-30030 (July 28, 1964).
Upon “discovery” of a “valuable mineral” the miner gains the right to use the property and can extract ore and use the surface for anything associated with mining. Without the “discovery”, the claimant has no rights as against the United States to the public lands. Additionally, even if such rights did exist, they exist only “so long as they comply with the laws of the United States, and with State, territorial, and local regulations….” 30 U.S.C. § 26. A mining claim location does not give the presumption of a discovery. Ranchers Exploration and Development Co. v. Anaconda , 248 F.Supp.
Have any changes been made to this antiquated law?
In the 134 years since the law was passed, Congress has made only a few changes. The most significant change was to distinguish between the various types of minerals. Leasable minerals (coal, oil, gas) are no longer free; miners must lease the land and pay a royalty on their profits. Saleable minerals (common varieties of gravel, sand, stone) now have to be bought or obtained by permit. However, Locatable minerals, more often called hardrock minerals (copper, gold, lead, uranium, silver and so on) have remained virtually free, with no royalties paid for ores mined on public federal land.
With the high prices of hardrock minerals, a new boom era of mining is happening in the West. With modern technology which can extricate low concentrations of ore from rock, miners will be digging and blasting more earth and rock per ounce of ore retrieved to make their investments profitable. They are under little legal obligation to protect the environment before and during their work, or to reclaim the land after they are through. Aside from surface destruction, mining has the potential for creating vast environmental damage of other types; many Superfund sites are old mines.
Reform of the Mining Law of 1872
Read about current legislation here.