The feds poke a hole in the 1872 Mining Law

  • Okanogan Highlands with Buckhorn Mtn. in distance

    Will Patric photo
  • David Kliegman of the Okanogan Highlands Alliance


At 5,600 feet, Buckhorn Mountain rises above the Okanogan Highlands, its fir and larch forests extending past Washington state and into Canada. It is not truly wild since a few roads cross it and mining claims were worked long ago, but it has not been clear-cut or pocked by the kinds of mines that leave enduring scars.

Now the mountain has new significance: It has set off a struggle over the future of hardrock mining on public land in the United States. That struggle seems to have taken almost everyone by surprise.

Until a few weeks ago, the Texas-based Battle Mountain Gold Co., along with its partner, Crown Resources, was well on its way to digging a 116-acre open-pit gold mine on the flanks of Buckhorn Mountain, where a deposit of gold worth almost $500 million lies buried. The company had run the regulatory gantlet and then fended off three lawsuits filed by the Colville Confederated Tribes and the nonprofit Okanogan Highlands Alliance (HCN, 8/31/98).

So, while the alliance had not given up hope of stopping the mine at the last minute, the company was finally ready to start construction, eight years behind schedule.

Not so fast

Then, on March 25, the federal government told Battle Mountain Gold that it was halting the Crown Jewel Mine. In a five-page letter, the departments of Agriculture and Interior wrote that the mine's waste rock piles would sprawl across more land than the 1872 Mining Law allows.

Under the law, Interior says, the company's 10 public land mining claims would entitle it to a maximum of 50 acres in mill-site claims, or five acres for each mining claim, rather than the 585 acres (117 mill sites) it had claimed. Mill-site claims are sought for storing waste rock and for siting the giant steel vats the Crown Jewel Mine would use to leach gold from crushed ore.

When the law was written 127 years ago, the technology of the day allowed for the mining of only the richest ore deposits, and mines weren't large by today's standards. But with the advent of large, open-pit copper and gold mines in the early 1980s, mining companies can profitably mine and refine ore containing as little as five-hundredths of an ounce of gold per ton. This produces far more waste rock than the authors of the mining law ever imagined and the mill site limitations effectively ban large, open pit mines like the Crown Jewel.

The Bureau of Land Management has ignored this proviso in a sort of gentlemen's agreement with the mining industry. But with the Crown Jewel Mine, the Department of the Interior announced that it intends to start enforcing the law, which allows one 5-acre mill site for every claim.

The first sign that strict enforcement of the law was on the way came in 1997, when Interior issued a legal memorandum to one of its agencies, the BLM. This statement, signed by Solicitor John Leshy and Interior Secretary Bruce Babbitt, pointed out that the mill site provisions of the 1872 Mining Law "have fallen totally out of step with the times ..."

The mining industry immediately criticized the 11th-hour mining law interpretation as bad government. Why, they wondered, hadn't the government issued this ruling before Battle Mountain Gold had spent almost a decade and $80 million pursing a raft of permits? (See column by Jon Margolis on facing page.)

"It's just too late in the process to change the rules," says Richard Harris, a Reno, Nev., mining attorney.

The Department of Interior argues that the industry has known about the provision in the law for many years.

In Washington state and across the West, anti-mining activists rallied around what they called the first chink in the impenetrable armor of the archaic mining law.

"I've always believed this mine was against the law," says David Kliegman, a 46-year-old woodworker who leads the Okanogan Highlands Alliance. He adds that the victory, however sweet, may be temporary because what began as a grassroots fight in an obscure mountain range has made its way to the halls of Congress.

"Actually, we've got a much bigger fight on our hands: Now we're up against the National Mining Association," Kliegman says. "But we definitely knocked them a good one."

It's a national debate

The new interpretation of the powerful century-old law is the latest effort to reform the nation's mining industry. It follows Interior Secretary Babbitt's failed attempts in 1993 to reform the Mining Law by requiring mining companies to pay 12 percent royalties on the value of the minerals it mined on public lands. The Department of the Interior also tried to impose a strict reclamation-bond requirement on mines on public land, but the mining industry convinced a court to void the requirement.

Babbitt has had some success. By charging a $100 maintenance fee on all mining claims beginning in 1993, the Interior Department convinced miners to drop 500,000 mining claims. About 500,000 remain. The department also withdrew Montana's Rocky Mountain Front from all mineral development and bought out mineral rights at the controversial New World Mine near Yellowstone National Park.

Though an overall approach to amending the 1872 law has failed, says Alan Septoff of the Washington, D.C.-based Mineral Policy Center, "We've been successful in nibbling around the edges." Now, many hope the recent mill site interpretation will force the industry to admit that the mining law needs reform: For the first time, a law written by miners, for miners, has failed them.

The battle over Crown Jewel

Mining industry attorney Richard Harris says that local BLM offices have regularly approved mine projects that violated the one mine claim-to-one mill site ratio. BLM policy manuals written as recently as 1991 state, "There is no limit to the number of mill sites that can be held by a single claimant."

While this ignores the ratio spelled out in the 1872 Mining Law, Harris says it is a "practice widely recognized and widely respected."

"In effect, the government entered into a contract. Now, with Mr. Leshy's one-to-one ratio, that contract has been broken," Harris says. "Mr. Babbitt and Mr. Leshy have been unable to enact their mining reforms through the front door and they reverted to what I call back-door practices. I see this as part of a larger strategy on the part of the secretary of the Interior to restrict and minimize mining development in the United States."

The administrative ruling is expected to affect three other open-pit mines now planned in Arizona and California: The Yarnell gold mine near Yarnell, Ariz.; the Carlota copper mine near Miami, Ariz.; and the Imperial Project gold mine in the desert of California's Imperial Valley.

Flynn says that even with the new tool, he'll limit his battles to mines in the works. "I have no intention of using the mill-site decision on an existing mine. I can't guarantee that others won't," he says. "We have no intention of shutting down the mining industry."

While mining industry representatives say the one-to-one rule took them by surprise, the Glamis Imperial Corp. seemed well prepared. The company remapped its claims, "slicing and dicing" 46 claims into 187 claims. Many of these redrawn claims measure less than a half acre in size. Environmentalists call this a ploy to steal public land.

Roger Flynn, who is representing the San Diego chapter of the Sierra Club in a fight over the Imperial Project mine, says the Glamis Imperial Corp. strategy won't work and promises to sue Interior if the mine is allowed to proceed.

"Why would Congress put in a mill site limit if you could file a bunch of itty-bitty claims? Obviously, that's not what Congress wanted."

Flynn adds that the companies have long known about the potential conflict between the mining law and the acreage limits on public land.

"The mining company attorney should have known this. They never thought that (the Interior Department) would use it against them," Flynn says. "They were arrogant."

Dustin Solberg is an HCN assistant editor.

You can contact ...

* Roger Flynn, Western Mining Action Project, 303/473-9618.

* Tim Ahern, U.S. Department of the Interior, 202/208-6416.

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