The Mining Law of 1872 and Reform
Read a fact sheet on S 140, the Abandoned Mine Reclamation Act of 2009
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
Representative Grijalva Introduces Legislation to Withdraw Lands Within Coronado National Forest from Mining, Nov. 15, 2007
Please show your support of mineral withdrawal by contacting your Congressional representatives. Go to our Action page for more info.
Read Rep. Grijalva’s Southern Arizona Public Lands Protection Act of 2007
Map of the area included
Many attempts have been made to reform the Mining Law of 1872, but the mining industry has successfully fought reform and only minor changes have been adopted. Meaningful and responsible reform should include, but not be limited to, the following key elements:
- Reclamation: Require full reclamation that would restore the land to a condition capable of supporting the same uses it was capable of supporting before any mining occurred. Recontour all dumps, heaps, road and other disturbed areas to the surrounding contours. Refill pits where possible or require sufficient justification for not filling them. Reclamation bonds must be adequate to cover all associated costs (roadwork, reseeding, administration, water resource protection and treatment, etc.). Bonds must be real, and not be tied to the company assets.
- Permit Fees: Require mining companies to pay permit fees to the BLM which would cover the total costs of an Environmental Impact Statement (EIS) or Environmental Assessment (EA). This would prevent miners from hiring their own consultants to perform these studies (a conflict of interest).
- Discretion: Give land management agencies (BLM or FS) full discretion to deny mining permits on sensitive lands or in areas where mining would conflict with existing uses.
- Public Input: Provide for more public involvement during the environmental evaluation processes, and give private citizens the right to ask the courts to enforce protective regulations.
- Royalties: Require miners to pay a royalty to the Federal Government on mineral production, such as a percentage of gross profits made on minerals taken from public lands.
- Patents: Permanently eliminate patenting which allows public lands to be purchased for $2.50 or $5.00 per acre.
- Abandoned Mines: Provide a fund for the reclamation of abandoned hard-rock mines. This money could come from royalties collected on mineral production.
Under the Mining Law of 1872, mining claims must be valid for a mining company to develop a mine on public lands. Even though the Pima County Board of Supervisors passed their resolution opposing the mine, the Forest Service is the agency that has the authority to approve or deny the mine proposal.
To read written testimony submitted by the six invited witnesses at Grijalva’s Feb. 24, 2007 hearing in Tucson, go to: http://resourcescommittee.house.gov/index.php?option=com_jcalpro&Itemid=27&extmode=view&extid=7
What you can do
Contact your senators and representatives, urging them to pressure the Forest Service and BLM to do a validity exam on Augusta’s claims at Rosemont Ranch. It would save taxpayers money in the future if we determine now if Augusta has the legal right to mine at Rosemont.
Write letters to your senators and representatives urging them to support Mining Law reform. If the Forest Service and BLM had the discretion to deny mining in unsuitable areas, the Rosemont Valley and Davidson Canyon would not be threatened as it is today. List some of the points mentioned above. Mention areas you know of that have been permanently ruined by irresponsible mining practices, or any area on public land that has had or may have its environmental values compromised or adversely affected by mining. For example, a mine near a riparian area that has contaminated ground water or surface water (Green Valley), or has caused the death of local wildlife. Rosemont Junction is a perfect example of an area that will have its other important values permanently degraded if Augusta’s proposal is accepted.
Congress needs to know that people are aware of the problems associated with mining under current law. Urge them to support reform of the Mining Law of 1872, and to mandate development of legislation for mine reclamation, especially on private land. Many other countries have mining regulations far more comprehensive than ours. These demands are not out of line with what’s required outside the USA. It’s time we stopped allowing this desecration of our public lands.
Earthworks is an organization working towards reform of the Mining Law and is helping Save the Scenic Santa Ritas in our efforts to protect the Rosemont Valley. Check their website at www.earthworksaction.org .