WASHINGTON, D.C. - It was a good year. The president was easily re-elected, there was a tight race for the baseball championship, and Congress passed landmark environmental legislation.
Some things have changed since
then, though. Ulysses Grant is better known for a question about
the contents of his tomb than for his accomplishments as president,
and the baseball champs, the Boston Red Stockings, enjoy a shorter
But to paraphrase Tennyson, who was then
63, though much is taken, one abides. The General Mining Law of
1872, passed during Grant's tenure, still stands like an ancient
fortress. How come?
Middlebury College political
scientist Christopher McGrory Klyza has one explanation: "It's
really hard to change laws." His new history of Western resource
policy, Who Controls Public Lands? (University of North Carolina
Press), says it's even harder when the law in question is said to
protect "property rights."
Which is what the
mining interests and their supporters always argue, finessing the
fact that the property either belongs to the federal government or
was given away by it.
Actually, only the
minerals were given away. The land above them was sold, usually for
no more than $5 an acre. That's how the law works. Anyone who files
a claim on open public lands can take the minerals beneath. The
miner can also "patent' - governmentese for "buy' - the land for
that bargain price. Since the fellow said to be buried in Grant's
Tomb signed the bill into law, roughly 3.2 million acres of public
land have been so conveyed.
At the time, the
government wanted to encourage settlement in the West and the
assumption was that public lands existed to be developed,
preferably by private individuals.
that now it might be easier to change the law. After all, the West
is settled, the federal government needs money, there is greater
concern about the pollution caused by mining, and the industry is
dominated by foreign corporations. But, now there's another
problem: the U.S. Constitution.
Were ours a
parliamentary system, the Mining Law would have been altered. We
know that because that half of Congress which is roughly equivalent
to a parliament voted to change it, by 316 to 108, in 1993. Even
with a Republican majority in 1995, Speaker Newt Gingrich suffered
his first loss when the House of Representatives refused to remove
the moratorium on issuing new patents.
there's the Senate, in which the 475,000 or so people of Wyoming
get as many senators as do the 31 million or so in California, and
while California Sens. Barbara Boxer and Dianne Feinstein would no
doubt vote for the bill sponsored by Sen. Dale Bumpers of Arkansas
and Rep. George Miller of California, Wyoming Sens. Craig Thomas
and Mike Enzi no doubt would not. Add in rules that allow a handful
of senators to delay action and a minority of 41 to block it
entirely, and you have a major roadblock.
the Senate, and particularly Western senators, which scuttled the
bill the House passed so easily in the 103rd Congress. Guided by
then-Sen. J. Bennett Johnston, a Louisiana Democrat, the Senate
passed a weaker version, and in the House-Senate conference which
followed, Johnston tried to negotiate a reasonable
He failed, and blamed industry.
Disappointed environmentalists blamed Democratic Sen. Harry Reid of
Nevada, a firm defender of the mining industry, who is now trying
to derail Interior Secretary Bruce Babbitt's plan to tighten
environmental regulations within the existing
Exactly why Western senators defend the
status quo is mysterious. A 1995 poll indicated that public opinion
in the Rocky Mountain states wasn't much different from the
sentiment in the other states, which was overwhelmingly for a new
mining law which would include royalties, an end to patenting and
But most of that opinion is
casually held. The average person, or at least the average person
who knows about it, may regard the Mining Law as an outrage but it
is not an outrage he thinks about often.
as elsewhere, a committed minority can fend off the casual
Western senators do get contributions
from the mining industry, but hardly enough to buy their support.
Nor is mining a big deal economically. The National Mining
Association claims that, including "indirect" services, almost 3.5
million jobs in the Rocky Mountain West and almost 5 million
nationwide depend on mining.
arithmetic might charitably be described as generous. In fact,
fewer than 50,000 Westerners earn their keep in the highly
automated industry; were public-land mining to be abolished
tomorrow (which no one proposes), the economic impact on the West
would be manageable. The most likely explanation for the bipartisan
political defense of the 1872 law is that the Western congressmen
believe, as almost everybody did in 1872, that the public lands
ought to be developed by private interests at little or no
Given all that, the real surprise is that
change in the law remains possible. The industry, aware of its poor
public image, is backing its version of "reform," which would
impose a very small royalty, 5 percent of the "net proceeds' (in
effect, the profit), which could end up being only 1 percent or
less of the gross value of the minerals. According to Stephen
D'Esposito of the Mineral Policy Center, the bill, sponsored by
Alaska Republican Frank Murkowski, would weaken the already weak
environmental regulations in the present law.
That this bill cannot pass is irrelevant. It was designed to block
the Bumpers-Miller bill, which would institute a real 5 percent
royalty on the "net smelter proceeds," and to create the illusion
that the industry is being reasonable. Why should it be reasonable?
Because it faces two problems.
The first is
uncertainty. Big corporations like to plan five to 10 years ahead.
A few industry leaders think it would help both their planning and
their public image if they can get this issue behind
Second, there is reason to believe that
the forces of reform are wising up. As an environmental issue
alone, mining law reform remains an esoteric, Western battle.
D'Esposito now makes it clear that his side will also stress the
fiscal issues. Mining doesn't pay a royalty on publicly owned ore.
In addition, the federal tax code gives it a "depletion allowance."
In plain English, it saves $250 million a year on its taxes because
- the reasoning goes - it is depleting its ore body. Penny-pinching
Republicans such as Rep. Scott Klug of Wisconsin are now part of
the coalition seeking to change the law.
Bumpers retiring and the Republicans likely to keep control of the
Senate, what reform forces need is another champion who isn't from
the West and who isn't a Democrat. D'Esposito is looking for an
Eastern moderate "deficit hawk," who could use some green
Could it be that all hopes of
changing the General Mining Law of 1872 rest with New York
Republican Sen. Alfonse D'Amato?
Jon Margolis deciphers Washington, D.C.,
regularly for High Country News.