The Mining Law of 1872: Past, Politics, and Prospects

9: Tailings, Slickens, and Slimes

82 chapter 9 Tailings, slickens, and slimes Yet seeing now the beauty of those fish down there below the surface so still and lovely in their deep dream dappled in their last deep pool We fish no longer turn and go on into the deeper pools of our own lives. —Lawrence Ferlinghetti, “Hilarious God” in These Are My Rivers (1994) 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. They were out of sight and out of mind. What excited miners was the trespass of someone else’s tailings on their private property, limiting their access to wealth. The Mining Law of 1872 did not address the problem of tailings disposal or pollution. The common law was the only recourse for early miners. Today we see the results. as Jared diamond has noted in his Collapse: How Societies Choose to Fail or Succeed (2005), “Until 1955 most mining Tailings, Slickens, and Slimes / 83 at Butte involved underground tunnels, but in 1955 anaconda began excavating an open-pit mine called the Berkeley Pit, now an enormous hole over a mile in diameter and 1,800 feet deep.”1 it is now a superfund site. We see no fish in the toxic Berkeley Pit, but we do see a changed landscape. Geographer randall e. rohe has described it best, noting that “each form of mining left a mark on the landscape.”2 Placer miners left piles of tailings. Hydraulic mining produced land “cut into an intricate pattern of gullies and ravines,” making the old terrain “unrecognizable ” within a year.3 dredge mining piled processed gravel high along Butte, Montana, mines and smelters, september 26, 1922: a landscape featuring tailings and slag dumps as well as smoke from smelter stacks. Courtesy of the Montana Historical society, Helena. 84 / Chapter 9 the banks of watercourses. Lode or hard-rock mining produced tailings, tailing ponds, stamps, mills, and smelters. all these fixtures and dumps were signatures of mining. some early mining districts required miners to tend to their tailings on their property. in the Garnet Mining district of Montana “each miner was required to take care of his own tailings, dumping them on his own ground, that the claim down stream might not be buried under worthless material.”4 But that was clearly not the case for one stream in Colorado: “during the winter of 1859–60 George C. swadley, and four others placer mined the bar; reportedly they made wages but little more. When the tailings blocked the sluice area and no means were readily available for tailings, the site was abandoned.”5 The experience was mixed for the early placer miners.6 The arguments about tailings and their downhill runs did not take long to get into court, and there, public policy arguments took on more substance. in Montana’s Wilson Mining district, an upstream miner allowed tailings to flow onto a downstream argonaut’s. The lawyer for the offending miner argued that it was “the custom and usage of miners . . . to locate and take up the same subject to the right of the tailings rock sediment & gravel to flow off & down the natural channel or bed of said gulch.”7 The reply was that there was no such custom for miners, but the jury thought otherwise. a motion for a new trial lost, with a notation by the trial judge that “while i feel confident that there was a preponderance of evidence against any such custom yet there was some evidence to the effect that there was such a custom.”8 The jury decided against the preponderance of the evidence, and an appeal followed. That appeal was successful, with the territorial supreme court siding with property rights in a location. it said: To allow the custom of free tailings to govern without restriction , would be in opposition to this principle (that each locator can locate grounds designated for tailing deposits & thereby put junior locators on notice of the boundaries), that parties locating are bound to mark the boundaries of their claims, which shall be notice of the extent of the mining ground and rights Tailings, Slickens, and Slimes / 85 acquired...