New twist in an old law has everyone screaming

  • The Creature from the Toxic Leach Pit

    Cartoon by Diane Sylvain

WASHINGTON, D.C. - A good horror movie's secret of success is not how scary the special effects or even how gory the final scene. No, it's that totally unexpected twist just before the end, the one in which the monster turns his wrath on someone considered safe.

John Leshy is a horror-flick fan. It's one of the ways he relaxes from the stress of being the solicitor - the top lawyer - of the U.S. Department of the Interior.

This is not exactly the pastime one would expect of a former law professor described by associates as folksy, scholarly, charismatic, funny and a bit bookish.

But to the guys who run the mining industry, John Leshy is a monster straight out of a screenplay that might be called The Creature from the Toxic Leachpit, the ogre who threatens to ruin their century-old picnic.

But remember about the late twist in the plot. Before the final credits roll, the last screech of terror could come from the throat of Al Gore.

For now, the screams are coming from the mining industry. Some proclaim that they will go to court to reverse the Interior Department's March 25 ruling denying a permit to the Crown Jewel Mine in Washington state (HCN, 4/12/99). But they have not done so, and might not, for the simple reason that they would likely lose.

They'd lose because Leshy's decision is based on an exact reading of the 19th century mining law. The public land the law allows to a mine is set at just a few acres per claim. In the mechanized 1990s, mines and mills need entire mountains (see related story on facing page).

True, Leshy's decision reverses decades of practice and policy, which is often a strong argument for reversal if the precise meaning of the statute in question is vague. In this case, the precise meaning of the statute was simply ignored.

Not that nobody knew about it. Despite their screams of outrage, some executives of the mining companies knew about it. They had read about it in a book generally regarded as the authoritative treatment of the 1872 Mining Law, a book by John Leshy.

Mining companies shake in their boots

It's not easy to figure out exactly what the mining industry has been thinking since Leshy and his counterparts at the Agriculture Department signed their decision denying the Texas-based Battle Mountain Gold Co." s application. The National Mining Association referred all calls on the matter to a lawyer here named Jack Gerard, who managed not to return calls over a four-day period.

But thanks to documents available via the Mining Association's Internet connections, the public actions (and non-actions) of the association, and a most unbalanced story sympathetic to the industry by the Canadian news service Stockwatch, it is possible to determine the industry's level of outrage, if not fear.

It's high.

"This is war," said Laura Skaer, the executive director of the Northwest Mining Association.

The inspiration for her bellicosity was not Leshy's ruling as such but its mysterious sequel - the draft memo from Forest Service Chief Mike Dombeck ordering a review of all existing mines to see if they violate the law as interpreted by the Crown Jewel decision. "We have no choice but to enforce the law," Dombeck wrote.

Now the plot thickens. The memo is not Forest Service policy, and may never be. It is part of a draft - not a final document - leaked either by someone who wanted to make sure Dombeck went through with such a review or by someone who wanted to scuttle it.

Chris Wood, the Forest Service spokesman, would say only that officials are examining the policy but that no decision has been made as to whether the new reading of the law will be retroactive. Many mines are on lands managed by both Forest Service and Bureau of Land Management, hence the joint jurisdiction, even though BLM is under Interior and the Forest Service is under the Agriculture Department.

The industry did not need the Dombeck memo to be furious about the Crown Jewel denial. To the mining executives, this was just another - if more significant - offensive in what they consider the war that has been waged on them since Leshy and his friend Bruce Babbitt took office in 1993.

"It's just another bullet in the gun that they're trying to hold to the mining industry's head, to say: "If you don't agree to accept some of what we want in mining law reform, we're going to make life miserable for you," "''''said Skaer, of the Northwest Mining Association, in the Stockwatch story.

The future hangs in the balance

She's absolutely right. They don't use quite the same words, but even environmentalists and administration officials acknowledge their hope that the Crown Jewel case will bring the industry to the table to negotiate changes to the 1872 Mining Law.

"This speaks to the difficulty of implementing a 125-year-old anachronism," said the Forest Service's Wood, expressing the administration's point of view. "In 1872, the prevailing technology was the pickax and shovel. Now it's moving mountains."

Nor do administration officials and environmentalists deny that Babbitt and Leshy were motivated, at least in part, by the impending end of their tenure in office. "We're running out of time here," said an Interior Department official.

I could not reach Leshy, who is said to be publicity-shy, but from associates it is not hard to get the picture of a man who would like to leave his imprint in his area of expertise - the mining law.

That has turned out to be close to impossible, thanks to the industry's clout in Congress.

On May 13, Republican Slade Gorton of Washington filed an amendment to the emergency appropriations bill - the one with money for the Balkan War - to reverse the March 25 ruling.

After extensive negotiations, Gorton retreated just far enough to avoid a presidential veto by filing a rider limited to the Crown Jewel mine. Environmentalists still want President Clinton to veto the entire bill over this provision, but he has indicated he will not. He wants to win the war he started, and to win it quickly.

But the fight is not over; it is merely postponed. Gorton can be expected to try another rider, in effect amending the Mining Law by repealing the mill-site provision, in the Interior Department appropriation bill for the next fiscal year. So the pressure may once again be on the president, and even more on Vice President Gore, supposedly the champion of the environment, facing a stronger-than-expected challenge from former Sen. Bill Bradley of New Jersey.

Do you think environmentalists would suggest to Bradley that he consider a speech assailing the rider as a cave-in to special interests, wondering where the vice president stood and why he couldn't stop it? You bet your bippy they would. And would Bradley do it?

Well, he was known for elbowing under the boards. Screams from the right, screams from the left. Sounds like the kind of movie John Leshy would enjoy.

Jon Margolis follows Washington and watches horror movies from his home in Vermont.

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