Forest Service wields an uncommon mining law


The Mining Law of 1872 is famously generous to miners when it comes to granting them rights to the riches on public lands. But in northern Idaho, a scuffle between miners and the Forest Service hinges on a related, but lesser-known law: the Mining Claims Rights Restoration Act of 1955. And unlike the 1872 law, this law gives the public lands agency the upper hand in dealing with mining on public lands.

The conflict in Idaho began in 2010, when a few folks staked mining claims -- up to 160 acres each -- at various places along a 30 mile stretch of the North Fork of the Clearwater River. These small scale, personal claims grant the miners the right to sift through the sands and gravels -- or “placers” -- of the riverbed for gold and other valuable minerals. Commonly this involves an oft-criticized technique called "suction dredging," in which miners use hoses to suck up river-bottom sediments.

What first got the Forest Service riled up, though, wasn't the mining techniques. It was signs posted by some of the placer claimants, who were treating their claims like private property. It turned out that the original claim owners had subdivided and sold off some of the claims, and now there were 36 claims on the same stretch of river. The miners' posted signs "warned" fisherman and campers to stay off the miners' "private property" -- even though the claims were on public land, and the public is free to use the claims as they would any other public land, as long as they don't directly interfere with mining. Local recreation organizations complained to the Forest Service, who decided to investigate and see what could be done.

Which brings us to the 1955 law. It turns out that those mining claims on the North Fork lie on lands that were once "withdrawn" from mining by the Dept. of Interior because the area was a possible hydropower site. The Mining Claims Restoration Act of 1955 opened the area back up to mining, but with a unique caveat: the surface owner of the land (in this case the Forest Service) could call a hearing before the Dept. of Interior and contest claims on the basis that mining would “substantially interfere with other uses of the land.”

The Forest Service is arguing that the limited prospects of gold in the area are outweighed by the impacts that placer mining would have. The mining could interfere with the spawning and reproduction habits of native bull trout, a threatened species. The area is a popular camping spot, with miles of undeveloped riverfront accessed by a single dirt road. And there have been significant archaeological finds along the river, which was home to the Nez Perce.

It’s too soon to say how this particular case will shake out, but prior cases involving the 1955 law have favored the Forest Service and BLM. In one recent case, settled in 2002, the BLM contested a placer mining claim on the Yellowstone River near Yankee Jim Canyon, a popular whitewater rafting spot. The Dept. of Interior ruled that the small amount of gold didn’t justify setting up equipment in the river that could interfere with rafting.

Despite having been applied in a number of cases, the law remains relatively obscure. Those old hydropower sites add up to a big chunk of land: between 1910 and 1960, more than 9.6 million acres were withdrawn from mining -- roughly half the size of South Carolina. But relatively few mining claims actually occur in the power site withdrawals, and the law is only applied when the Forest Service or BLM call for a hearing.

The law is even more limited because it applies only to placer mining, not the hardrock, or “lode,” mining that characterizes bigger and more intrusive projects. But in a more general way, the significance of the law lies in how it contrasts with the 1872 Mining Law, which has long hamstrung mining opponents by sanctifying mining above all other uses of the land. The 1872 law makes it essentially impossible for agencies like the Forest Service to stop big mining projects, even if they result in costly environmental impacts.

Although the miners in the Clearwater case say the Forest Service is overreacting, taking away their private property without warning, the 1955 law is seen by many as a bit of sanity compared to archaic mining laws left over from the frontier era. In general, “the Forest Service and BLM feel that they can’t say no to mining,” says Roger Flynn, founding director and managing attorney of the Western Mining Action Project, a non-profit public-interest law center. “But this (1955 law) is a very unique law.”

Marshall Swearingen is an intern at High Country News.

Image courtesy of Nez Perce-Clearwater National Forest.

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