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The Mining Law of 1872

Past, Politics, and Prospects

Gordon Morris Bakken

Publication Year: 2011

History has left us a classic image of western mining in the grizzly forty-niner squatting by a clear stream sifting through gravel to reveal gold. What this slice of Western Americana does not reveal, however, is thousands of miners doing the same, their gravel washing downstream, causing the water to grow dark with debris while trout choke to death and wash ashore. Instead of the havoc wreaked upon the western landscape, we are told stories of American enterprise, ingenuity, and fortune.

The General Mining Act of 1872, which declared all valuable mineral deposits on public lands to be free and open to exploration and purchase, has had a controversial impact on the western environment as, under the protection of federal law, various twentieth-century entrepreneurs have manipulated it in order to dump waste, cut timber, create resorts, and engage in a host of other activities damaging to the environment. In this in-depth analysis, legal historian Gordon Morris Bakken traces the roots of the mining law and details the way its unintended consequences have shaped western legal thought from Nome to Tombstone and how it has informed much of the lore of the settlement of the West.

Published by: University of New Mexico Press

Front Cover

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Title Page

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pp. vii-viii

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Disclosure Statement and Acknowledgments

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pp. ix-xxx

I started work on this book in 1967, and in the course of time I have many personal and professional debts to acknowledge. Martin Ridge encouraged me to write an author disclosure statement because he was so taken by William Cronon’s in Nature’s Metropolis. Starting on the statement was no easy task, ...

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pp. 1-7

On October 6, 2004, the Santa Fe New Mexican reported that members of Amigos Bravos, an environmental group, staked a twentyacre mining claim on prime environmentally significant public land abutting the Pecos River. Janice Varela of Pecos, New Mexico, and campaign manger for Amigos Bravos’s mining reform campaign ...

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1: An Act to Promote the Development of the Mining Resources of the United States

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pp. 8-15

The Mining Law of 1872 entitled “An Act to promote the Development of the Mining Resources of the United States” was the codification of the American experience in mining in the American West.1 This much-discussed statute is seldom narrated for its contents. We need to start by knowing exactly what Congress put on the books. ...

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2: Local Mining District Regulations

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pp. 16-24

The Mining Law of 1872 has its origins in the California gold rush. Local mining district regulations formed the basis for congressional legislation and judicial inquiry. The national hysteria that drove thousands westward got down to earth when gold seekers assembled in a placer mining locality to write property rules governing their local district. ...

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3: Congress Speaks: The General Mining Laws

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pp. 25-31

Congress knew that something was happening in California in 1849, but matters of slavery, slavery in the territories, the Mexican Cession, and economic dislocation occupied much of its time. A civil war would further distance congressional minds from the need to regulate mining on the public domain. ...

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4: Courts Speak: Mucking Out Waste and Processing Words

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pp. 32-36

Remembering the words of Judge Hunt regarding the need for judicial intellect, judges in the period before federal mining law had local mining district regulations, territorial or state statutes, and the common-law tradition to deal with in deciding mining cases. ...

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5: Location, Location, Location

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pp. 37-54

Locating a mining claim was a matter of finding mineralized ground and posting a location notice of claim to that particular ground. Whether placer ground or hard-rock quartz claim, the concept was the same. Declare your property interest in writing in the center of your ground in a manner giving the people in the vicinity clear notice of your claim. ...

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6: It’s Off to Work We Go

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pp. 55-61

Claim jumping was relocating a dormant claim. Miners who did not work the ground may have abandoned the claim. Public land in the nineteenth century was to be worked to be productive, and it was work that made America great. It was a simple faith and one that miners understood. ...

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7: Spurs, Dips, and Angles

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pp. 62-71

The ability of a hard-rock or lode locator to pursue a vein outside the sidelines of a location into the claim of abutting miners created another problem of certainty in western American mining. This particular “custom” of some miners became general law, confounding claimants, lawyers, judges, and public policy makers. ...

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8: Litigation

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pp. 72-81

Americans are a law-minded people, bringing the values of the rule of law and the respect for private property with them on the Overland Trail.1 Miners wrote local mining district regulations to reflect these values. When disputes arose, miners gathered to hear and decide the controversy. ...

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9: Tailings, Slickens, and Slimes

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pp. 82-93

When the gold rush miners swirled the pay dirt around in their pans and cast the waste away in the running waters, they did not see the trout float belly up downstream. The bodies as well as the tailings of Long Toms, the slimes and slicken of mills, and the tons of tailings from smelters washed away in the waters. ...

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10: Hydraulic Mining

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pp. 94-105

Water and gold mining were joined when the first pan filled with pay dirt and water left a trace of color in the pan. Water was flumed to gravel and processed more dirt until 1853 when the invention of the penstock concentrated water at high pressure.1 From there American invention abounded until rivers of water were run through hoses, ...

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11: Modernizing the Mining Law of 1872

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pp. 106-115

In 1974 the comptroller general of the United States produced a report to Congress entitled “Modernization of 1872 Mining Law Needed to Encourage Domestic Mineral Production, Protect the Environment, and Improve Public Land Management.”1 The report was the beginning of a concerted attempt to change the mining law system. ...

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12: Environmental Law in the Age of Aquarius

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pp. 116-125

Miners did not see the environmental law revolution coming, and until Anaconda’s smelter closed, many thought public relations and politics would continue to solve their legal problems.1 Miners gathered in conventions and admired their accomplishments rather than reading Aldo Leopold’s A Sand County Almanac (1948), ...

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13: A Frontal Attack on the Mining Law of 1872

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pp. 126-146

One hundred forty years after the California gold rush and 117 years after the passage of the Mining Law of 1872, the U.S. General Accounting Office issued a report calling for the revision of the venerable General Mining Law. Another political firestorm swept the West. Alkali Ike, the small prospector of nineteenth-century mythology, ...

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14: The Continuing Attack on the Mining Law of 1872

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pp. 147-163

The first round of congressional testimony on the repeal of the Mining Law of 1872, the imposition of royalties for mining on the public domain, and the California Desert Protection Act had gone to the mining lobby. Legislation was taken off the table, but 1991 was another year. ...

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15: Badger State Battle for Mining

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pp. 164-174

In 1990 an Environmental Impact Statement regarding the development of a mine near Ladysmith, Wisconsin, started a movement against mining in the state that ended in the purchase of a mine by the American Indian tribes most affected by the venture. The thirty-two-acre open-pit operation seemed innocent enough, ...

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pp. 175-187

The 1990s gave the nation a glimpse of American mining in the debates over the revision of the Mining Law of 1872, cyanide disasters and a ban, and the Ladysmith mine. What was reality? Was mining Demogorgon seeking environmental victims with its insatiable maw? ...


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pp. 188-232


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pp. 233-238

Back Cover

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E-ISBN-13: 9780826343581
Print-ISBN-13: 9780826343574

Page Count: 268
Publication Year: 2011