The Forest Service battles placer mining with an obscure law
by Marshall Swearingen
On a clear day last October in northern Idaho, Forest Service geologist Clint Hughes panned for gold on the North Fork Clearwater River. The area attracted gold prospectors in the 1860s, but these days, the river, which flows through a wild stretch of country near the Montana border, is popular with campers and anglers.
Hughes scooped up a bit of placer -- mineral-bearing gravel and sand -- from behind a boulder. With a swish of the pan, he washed away the mud and lighter sand, leaving only a few garnets.
The absence of gold flakes didn't surprise him, though. The day's panning confirmed that little gold is to be found on more than a dozen placer mining claims staked along a 30-mile stretch of the North Fork. These claims grant holders exclusive rights to any valuable minerals. But the Forest Service is now arguing that mining the claims isn't worth the impacts to the river.
The Forest Service's ability to deny mining proposals is severely limited by the 1872 General Mining Law, a frontier remnant that prioritizes mining above all other land uses. But another, little-known law gives it a straightforward way to prevent mining in at least a few locations. The Mining Claims Rights Restoration Act of 1955 lets the federal government challenge placer mining in locations that it once reserved as potential hydropower sites. And on the North Fork, the law is giving the Forest Service the upper hand. "We wouldn't be doing any of this (contesting placer mining) if it were under the regular old 1872 mining law," says Hughes.
The Department of Interior began reserving certain river-valley public lands for hydropower development in 1909, as dam building in the West was revving up. In these "power site withdrawals," mining was restricted. But in 1955, as dam-site exploration slowed, the Mining Claims Rights Restoration Act eased the restrictions, with a caveat: The Forest Service and Bureau of Land Management could reject placer mining if it would "substantially interfere with other uses" like recreation.
Although the law applies to more than 7 million acres of public land -- roughly three times the size of Yellowstone -- it hasn't come up often because placer mining techniques like panning are generally low-impact, and because relatively few claims fall in these sites. In California, with its abundant rivers once rich in gold, roughly 4 percent of mining claims are subject to the 1955 law; in dry Nevada, where big hardrock mining dominates, the law is practically unknown.
But in recent years, placer mining has become more popular, spurred by gold prices as high as $1,900 per ounce, and more controversial. To squeeze gold from streams, miners have turned to suction dredging, which uses motors to suck up riverbed sediments and wash out the gold, discharging the muddy water back into the stream. Miners say the practice does little harm, but studies suggest that it damages fish-spawning habitat. California banned suction dredging in 2009; Idaho restricts it on certain rivers.
The Forest Service and BLM can regulate placer mining by applying environmental laws piecemeal to protect habitat, water and cultural artifacts. But both agencies generally view the 1872 law as constraining their ability to restrict mining on public lands.
In the handful of cases involving potential hydropower sites, however, the agencies have argued under the 1955 law that timber harvest, fish habitat, even aesthetic value, outweigh mining -- and in most cases, they've won. In 2002, the Forest Service was able to prohibit all placer mining on a section of the Yellowstone River because the activity would interfere with rafting.
On the North Fork Clearwater, the scuffle started last June, when a few miners subdivided larger 160-acre claims and sold the parcels on eBay and other auction websites. River recreationists complained to the Forest Service when miners nailed signs to trees to stake out the subdivided claims, most of which were 10 or 20 acres. The agency called for a hearing, which was held in January before the Department of Interior Office of Hearings and Appeals, and argued that the miners would push out campers and anglers and harm critical habitat for bull trout, a threatened species. Larger-scale placer mining could destroy Native American artifacts in the riverbanks, the agency stated, and would hamper efforts to designate the North Fork as a Wild and Scenic River. Miners didn't defend 20 of the 36 claims; the ongoing legal sparring over the remaining 16 claims will end in the judge's decision sometime this summer.
Some would-be miners, like James Young, see the Forest Service's move as a federal land grab. He bought a claim on eBay with hopes of retiring to Idaho from Biloxi, Miss., and supplementing his income with suction dredging. At the OHA hearing in Idaho, he argued that Hughes underestimated the value of the gold and complained that the miners would receive no compensation if the Forest Service wins. Others have applauded the agency for taking a stand. Gary Macfarlane, ecosystem defense director with Friends of the Clearwater, says, "This is an example where I think the Forest Service is really looking out for the public interest."© High Country News