'You can't say no to mining'

  • Prospector panning for gold

    L.C. McClure photo, Denver Public Library Western History Department
  • JOHN LESHY

 

Note: This article is a sidebar to this issue's feature story.

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 All those other laws have been repealed long ago.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.

This article is compiled from a longer Radio High Country News interview with John Leshy.

High Country News Classifieds
  • NORTHEASTERN UNIVERSITY
    All positions available: Sales Representative, Accountant and Administrative Assistant. As part of our expansion program, our University is looking for part time work from home...
  • COMMUNICATIONS ASSOCIATE DIRECTOR
    Position Title: Communications Associate Director Location: Flexible within the Western U.S., Durango, CO preferred Position reports to: Senior Communications Director The Conservation Lands Foundation (CLF)...
  • HISTORIC HOTEL & CAFE
    For Sale, 600k, Centennial Wyoming, 6 suites plus 2 bed, 2 bath apartment. www.themountainviewhotel.com Make this your home or buy a turn key hotel [email protected]
  • MAJOR GIFTS OFFICER
    High Country News, an award-winning news organization covering the communities and environment of the Western United States, seeks a Major Gifts Officer to join our...
  • RUBY, ARIZONA CARETAKER
    S. Az ghost town seeking full-time caretaker. Contact [email protected] for details.
  • VICE PRESIDENT, LANDSCAPE CONSERVATION
    Basic Summary: The Vice President for Landscape Conservation is based in the Washington, D.C., headquarters and oversees Defenders' work to promote landscape-scale wildlife conservation, focusing...
  • BRISTOL BAY PROGRAM DIRECTOR
    Seeking a program director responsible for developing and implementing all aspects of the Alaska Chapter's priority strategy for conservation in the Bristol Bay region of...
  • EXECUTIVE DIRECTOR
    The National Bighorn Sheep Center is looking for an Executive Director to take us forward into the new decade with continued strong leadership and vision:...
  • EXECUTIVE DIRECTOR
    The Powder Basin Watershed Council, based in Baker City, Oregon, seeks a new Executive Director with a passion for rural communities, water, and working lands....
  • CLEAN ENERGY PROGRAM DIRECTOR
    Type: Permanent, fulltime Reports to: Executive Director Travel: Some overnight travel, both in-state and out-of-state required Compensation (beginning): $44,000 to 46,500/yr., DOE plus excellent benefits...
  • EXECUTIVE DIRECTOR
    Powder River Basin Resource Council, a progressive non-profit conservation organization based in Sheridan, Wyoming, seeks an Executive Director, preferably with grassroots organizing experience, excellent communication...
  • ADOBE HOME
    Passive solar adobe home in high desert of central New Mexico. Located on a 10,000 acre cattle ranch.
  • EXECUTIVE DIRECTOR
    Eastern Nevada Landscape Coalition, based in Ely, Nevada is looking for a new executive director to replace the long-time executive director who is retiring at...
  • STEVE HARRIS, EXPERIENCED PUBLIC LANDS/ENVIRONMENTAL ATTORNEY
    Comment Letters - Admin Appeals - Federal & State Litigation - FOIA -
  • LISA MACKEY PHOTOGRAPHY
    Fine Art Gicle Printing. Photo papers, fine art papers, canvas. Widths up to 44". Art printing by an artist.
  • LOG HOME IN THE GILA WILDERNESS
    Beautiful hand built log home in the heart of the Gila Wilderness on five acres. Please email for PDF of pictures and a full description.
  • CARETAKER
    2.0 acre homestead needing year-round caretaker in NE Oregon. Contact [email protected] for details.
  • SEEKING PROPERTY FOR BISON HERD
    Seeking additional properties for a herd of 1,000 AUM minimum. Interested in partnering with landowners looking to engage in commercial and/or conservation bison ranching. Location...
  • COPPER STAIN: ASARCO'S LEGACY IN EL PASO
    Tales from scores of ex-employees unearth the human costs of an economy that runs on copper.
  • EXPERT LAND STEWART
    Available for site conservator, property manager. View resume at http://skills.ojadigital.net.