An 1872 law still calls the shots

  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 name.


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.


You'd think 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.


Ah, but 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.


It was 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 bill.


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 law.


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 tougher regulations.


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.


Here, as elsewhere, a committed minority can fend off the casual majority.


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.


The association's 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 cost.


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 them.


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.


With 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 credentials.


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.