'You can't say no to mining'
by Ed Marston
John D. Leshy, who served as the Department of Interior's top attorney during the Clinton administration, played a key role in the attempt to reform federal mining regulations. On Oct. 25, the Bush administration announced that many of those reforms will be abandoned (HCN, 11/19/01: Mining reform gets the shaft). Leshy is currently a visiting professor at the UC Hastings College of Law in San Francisco; he spoke with HCN publisher Ed Marston on Oct. 31.ED MARSTON: Back in 1872, the Congress passed what is now a famous law. Could you describe it?
JOHN LESHY: (The General Mining Law of 1872) was one of the last of the late great 19th century, Western expansion, Manifest Destiny laws, because it basically threw open all the federal lands and said to the miners: "Come and get it for free."
The miners don't pay any rent, they don't pay any royalty, and (through a process called "patenting") they could get title to the land as well as the minerals under this old law. All those other laws have been repealed long ago. The Mining Law, uniquely, survives.
The Mining Law still applies to probably 400 million acres of federal land, and for a long time there had been efforts to reform the Mining Law, do away with it, repeal it, bring it into the 20th century, with some success.
MARSTON: Could you give us an example of the kind of devastation that the 1872 Mining Law has allowed?
LESHY: Modern mines will move hundreds of tons of earth for an ounce of gold. They're gigantic operations and they can cause a lot of environmental harm, especially to things like groundwater. Acid mine drainage is a problem. If you don't reseed and revegetate, you can have long-term erosion problems.
There have been some classic, large-scale disasters where miners have done a lousy job and walked away, declared bankruptcy, and left the taxpayers with large bills to clean these things up. The modern sort of poster child here is the Summitville Mine, which was on state lands in Colorado. The miner walked away and the federal taxpayer is paying $120-150 million to clean that thing up.
MARSTON: Let's fast forward. You become the top lawyer, the solicitor general for Department of Interior. You have a staff of 400, and you focus some of your energies on the Mining Law. What did you set about to do?
LESHY: In 1976, Congress passed the Federal Land Policy and Management Act, or FLPMA. In 1980, at the end of the Carter administration, the (3809) regulations were put in place that, for the first time, brought hardrock mining under some environmental control.
That was sort of a tentative first step, and everybody knew that those regulations would have to be fine-tuned over the years.
In 1990, near the end of the first President Bush administration, the administration started an effort to fine-tune and overhaul and strengthen those regulations. When the Clinton administration came in, in 1993, there was substantial sentiment in Congress to actually reform the law legislatively. Both the House and the Senate had passed reform bills in 1993 and 1994, but they couldn't get an agreement on a final bill, so that effort eventually failed.
Then we went back to the regulatory reform process. We eventually completed that effort in November of 2000, and strengthened the regulations in place.
In 1976 (in FLPMA), Congress told the secretary of the Interior, you shall prevent "unnecessary or undue degradation" of the public lands from all activities including hardrock mining. (In 1999) I wrote a legal opinion that interpreted "undue degradation" to mean that if a mining proposal causes substantial, irreparable environmental harm that you cannot effectively mitigate, the Interior Department can turn it down.
For the first time, the Interior Department could actually veto or turn down a mining proposal that posed substantial environmental harm.
MARSTON: So now comes the Bush administration and Interior Secretary Gale Norton. What is changing?
LESHY: The most significant change was that they abandoned the veto right.
(They) interpreted (the "undue degradation") provision to say that mining trumps everything else and that no matter how egregious the environmental harm by a mining proposal, the Interior Department is powerless to turn it down.
The government can say no to livestock grazing when there's a drought. It can say no to timber harvesting on steep slopes or other places where there's significant environmental risk. It can even say no to hiking and camping. But the Bush administration is now saying that you can't say no to mining.
MARSTON: So what will it take to change the Mining Law?
LESHY: In part, the Mining Law has been changed. It was changed in 1976 with its environmental provision. It has been changed at least so long as Congress renews every year this moratorium on new patenting.
Early in the (Clinton) administration, we had to give a company in Nevada $10 billion worth of federal minerals for $2.50 an acre, a total of $9,000. That episode - and similar giveaways that we were required to do under this old law - prompted Congress to end the patenting provision in 1994, at least temporarily. What they have done every year since 1994 is put a moratorium on granting new patents, except for ones that were well along in the process.
We don't know what the new administration is going to do on that. But we regarded that as a pretty significant reform that we got out of Congress as a result of that publicity.
The one thing that Congress is going to have to do is put a royalty on (hardrock mining). Federal lands of the West are probably the only place on the planet where hardrock miners can mine without paying the owner of the mineral anything.
Now it's interesting, because until about seven years ago, the hardrock industry had always opposed any royalty across the board. When the Republicans took over Congress in 1995, the industry changed its tune. Congress actually passed a royalty provision and sent it to the president, (but) it was so riddled with loopholes and deductions and exemptions, that it would produce almost no money. This is an industry that probably grosses about $10-12 billion a year. The congressional budget office said it would produce about a million dollars a year from the entire industry in royalties across the country. It was a sham, it was a joke, and Clinton vetoed it.
Now, last week, when Secretary Norton announced that she was abandoning this right to veto bad mines, she said, we want to talk to Congress about putting a royalty on hardrock mining. Because, I think, they're frankly embarrassed by the fact that this is such a unique thing that the mining industry has.
But I'm afraid that they're going to be talking about the kind of royalty that Congress passed in 1995, which is no royalty at all, effectively.
MARSTON: Will hardrock mining on public lands survive, looking 20 years down the road?
LESHY: If you look at the lobbying efforts of the industry in resisting reform over the last 30 or 40 years, there's a very constant theme: "If we have to conform to environmental regulations, we will go abroad. We will disappear on the public lands." Well, we put the initial regulations in place in 1980. The industry expanded tenfold after those regulations went into place. More mining (has happened) on public lands in the last few years than ever before, even operating under environmental regulations.