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

13: A Frontal Attack on the Mining Law of 1872

126 chapter 13 a Frontal attack on the Mining Law of 1872 it is too easy for me to feel my identity giving away, just as the soft cement rolls off the conveyor belt and into the river, where the ducks have done their breeding, and the whole family has gathered to gaze, though it seems that the water may have lost most of its meaning in direct proportion to our loss of memory. . . . —Brian Young, “a Chatterbox in the aspirin Trees” in The Full Night Still in the Street Water (2003) 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, joined with corporate whiz kids grinding out data. The mining statistics in the hands of lobbyists slowly buried congressional reform, but incremental change again found its way westward. The Gao’s 1989 report contained little new information on the impact of the Mining Law of 1872 but reminded legislators why change was needed. in 1986 the federal government sold seventeen thousand acres of public land by the patent system for $42,500. Weeks later these alkali ikes sold their patented mineral lands to major oil companies for A Frontal Attack on the Mining Law of 1872 / 127 $37,000,000.1 inadditiontothedollarsinvolved,theHousehadrequested and the Gao had investigated the annual work requirement. The Gao summarized the legislative history of the General Mining Law of 1872 and noted changes in the statute. First, Congress had removed the fuel minerals such as coal, gas, and oil from coverage and createdalternativesystems.second,Congresshadremovedthecommonvariety minerals such as sand and gravel from coverage. Finally, Congress and the president had withdrawn from mineral exploitation 727 million acres of public land for wilderness areas and national parks. Most telling , however, was the fact that “various proposals have been made to amend the act’s hardrock minerals patent and annual work provisions, but none of them have been enacted.”2 The patent and work requirements had done nothing to bring about mineral claim development. The Mining Law of 1872 also appeared out of step with recent federal legislation. The Gao reported that the patent provisions of the Mining Law of 1872 clearly run counter to other national natural resource policies and legislation . The Federal Land Policy and Management act of 1976 (FLPMa) provides that, in general, public lands should remain under federal ownership and be managed for the benefit of all users (multiple use) as well as for future generations (sustained yield). However, mining claim holders can gain title to federal lands by patenting their claims, thereby precluding future public use of these lands.3 Patented claims impeded the effective management of abutting federal lands and barred federal control of incompatible development of those patented lands. What had happened was simple: patented claims were private property, and if the government wanted it, the government would have to take it by eminent domain. The Fifth amendment to the U.s. Constitution required payment for the private property. Mineral patentees had government to hold up if it wanted to acquire their property for a public purpose. one kind of development that galled environmentalists and 128 / Chapter 13 reformers was the patented claim converted into profitable nonmineral enterprise, with the federal government not receiving a single copper cent. The Gao referenced ski resorts in keystone and Breckenridge, Colorado.4 The Gao reminded Congress that this was not its first report. in 1974 the Gao had found that the 1872 Mining Law did not provide a system for determining the number and location of claims, ensure mineral development, give the federal government a fair market return on the minerals extracted from the public domain, or protect the federal lands from degradation. FLPMa had addressed some of these concerns in 1976. Claim and annual work affidavits were now filed with the Bureau of Land Management, and that agency now knew where the claims were located. Less effectively addressed, Gao claimed, were fair market value returns and environmental protection. in 1979 the Gao returned to the issue and again called for fair market value returns and the abolition of the patenting system.5 The Gao also revisited its findings regarding the annual work requirement and...