The Mining Law

A Study in Perpetual Motion

John D. Leshy

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317359593
• Edition: 1
• Topic: Biological Sciences
• Subtopic: Ecology
• Index: Biological Sciences

Originally published in 1987, John D. Leshy presents this scholarly study of the 1872 Mining Law as a legal treatise and history of mining in the West from the point of view of mineral exploration and production. This mining law governed the United States mining practice yet had never been changed. The Mining Law attempts to highlight the role of policy and government as well as the more obscure elements of the law which complicated mining practice in the eighties. This title will be of interest to students of Environmental Studies and policy makers.

1
Introduction

On June 18, 1866, Senator James McDougall rose in debate on the bill which eventually became the Mining Law of 1866 to express his support for an amendment offered by Senator George Williams of Oregon. The amendment would have struck nearly all of the substantive details of the bill, reported by the Committee on Mines and Mining, to authorize development of the minerals owned by the United States. Had Senator Williams's amendment been accepted, essentially what would have remained was a straightforward declaration allowing persons free access to explore and occupy federal mineral lands:

That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.¹

The development of federal minerals had quickly brought Senator McDougall's state, California, to prominence and swept it to statehood shortly after the treaty with Mexico had secured its territory for the United States. A staunch friend of the minerals industry, McDougall argued vigorously against encumbering the brief declaration of free access with more detail. He articulated his concern about the detailed superstructure of the committee's bill this way: "[T]his might be called 'a bill to promote litigation, create controversy, and occasion difficulties.' ... Here is a bill providing a policy full of machinery very ingenious, but which, like some of those machines that are intended to secure perpetual motion, will run but a short time."²

Senator McDougall's argument, coming nearly at the close of the day's debate on the bill, was eventually rejected by a majority of his colleagues, for when discussion resumed ten days later the Senate defeated the Williams amendment.³ The bill, with its "ingenious machinery" intact, became law within a month.⁴

Viewed narrowly, Senator McDougall's prediction that the Mining Law would quickly prove itself inadequate was correct. The 1866 law, which required some adroit legislative maneuvering by its principal sponsor to enact,⁵ was followed just four years later by supplementary legislation, the Placer Act of 1870.⁶ Two years after that Congress modified both laws and incorporated them in what became the General Mining Law of 1872, signed by President Grant on May 10, 1872.⁷ But though the 1866 law required prompt supplementation and modification, neither the 1870 nor the 1872 acts departed substantially from it. Specifically, the latter two acts retained not only the basic declaration of free access, but also the complicated superstructure of "ingenious machinery" that had been erected on top of it.

In a larger sense, Senator McDougall was only partially accurate. It is indisputable that over the century and more since these pieces of legislation gave lasting shape to the basic federal mining law they have, through the millions of mining claims filed under them, promoted much litigation, generated much controversy, and occasioned much difficulty. Yet the 1872 law that culminated this long-ago policymaking survives still, mocking Senator McDougall's warning by proving itself one of the most durable perpetual motion machines ever assembled.

Nevertheless, the burden of Senator McDougall's argument remains pertinent today. Does this legal machinery—the three acts comprising the "Mining Law" (and so referred to in this book unless the context requires distinguishing among them)—efficiently and effectively promote mineral development? More broadly, is such machinery, fashioned in the nation's first century, adequate to meet the challenges the United States faces in its third century? This inquiry' is one focus of this study.

There will be much discussion below of the history of the Mining Law's administration. But the Mining Law embraces a rich cultural history as well. The forces that gave rise to it could scarcely have remained static over more than a century. Indeed, the longevity of the Mining Law has allowed it to span most of the history of the West, where it has applied almost exclusively, as well as over half the nation's history. In its life-span the western states have grown from a population of about one million in 1872 to more than forty million today.⁸ Born in the wake of the Civil War, it has survived the closing of the frontier, the rise of die modern environmental movement, and through all this the continual evolution of federal land and resource management policies.

But it is not precisely accurate to say that the Mining Law merely endured these events; rather, the Mining Law played an important role in forging many of them. Theodore Roosevelt's great interest in federal natural resource policy quickly led him into a series of often-bitter battles with Congress. The Mining Law was at the heart of many of these struggles, especially when Roosevelt and his successor Taft unilaterally withdrew—that is, placed off limits to the Mining Law—millions of acres of land. The executive's power to nullify the free-access principle adopted by Congress eventually culminated in a historic and still-controversial decision of the United States Supreme Court upholding the executive,⁹ a decision that itself has continued to shape federal land policies in fundamental ways (see chapter 4). Part of the focus of this book is on how, in many obscure as well as prominent ways, the Mining Law has helped shape modern public-land and resource-management policies. The shadow it has cast over federal land and resource management is commensurate with its age, and its legacy, like the Mining Law itself, is still very much with us.

The legacy of the mining culture that gave birth to the Mining Law is very much with us as well, although not always in the form one would expect. Grubstaking and claimjumping are part of our lexicon. California is nicknamed the Golden State, Nevada the Silver State, Montana the Treasure State, and Idaho the Gem State. The sagas of the California gold rush, the Comstock lode, and other bonanzas furnish a staple for plots of novels, plays, and movies, and nicknames for sports teams like the 49ers and the Nuggets. Former mining towns like Aspen, Telluride, and Virginia City have been reborn as tourist attractions, artist colonies, and other types of modern playgrounds. The first successful campaign for female suffrage was born in a mining camp in Wyoming in 1868/69.¹⁰ Some of the wild burros and horses that plague modern ranchers and land managers are descended from those that accompanied early prospectors. Even our current president has his own connection to the Mining Law—the logo of "Death Valley Days," a television show hosted by Mr. Reagan, was a twenty-mule team hauling borax from Mining Law claims that survive yet today.¹¹

The Mining Law—the Law, in short—and the subculture that spawned it, and which in turn it still nourishes, have enriched our institutions and our history in ways far beyond those envisioned by its promoters. The nation owes a great debt to the Law. Its demise, if we are ever to see it, will be in part an occasion for mourning, just as we might mourn the loss of a colorful if crotchety elderly acquaintance who for many years was a vibrant force in our community.

But today's times seem to allow little room for such sentimentality. A part of the modern ethic is a concern with economic efficiency; another part is a concern about the quality of the natural environment. Though these notions of efficiency and environmental quality emanate from somewhat different sources and are not fully reconcilable with each other, they are plainly the principal engines now driving natural resource policymaking. And how does the Mining Law stand up under that kind of scrutiny?

The answer is plain—not very well. On both counts, the Mining Law is subject to trenchant criticism. Its "ingenious machinery" is increasingly an obstacle to efficient exploration and development of federal minerals. At the same time, its free-access policy is an obstacle to sound environmental protection. Both of these shortcomings are developed at some length in the following chapters.

Criticism of the Mining Law is, of course, old hat. Senator McDougall has been followed by a legion of advocates who, for more than a century, have urged reform of the Law. The outpouring of literature on reform—from presidential commissions, congressional committees and commissions, legal and other scholars—has been remarkable. Almost everyone examining the Law has attacked its failings and recommended change. From many different perspectives, critics have decried the Law as an "antique," and scored it as a "pick-and-shovel" law out of step with modern imperatives.¹²

As other countries around the world have reformed their mining laws time and again to keep pace with changing conditions both inside and outside the mining industry, the structure of die Mining Law remains on the statute books as it was adopted in 1872. A particularly interesting comparison is found in the State of Western Australia, an area that, like the western United States, has been prime habitat for hardrock mining for a century or more. In 1907 a geologist from the United States Geological Survey, acting at the request of President Roosevelt, made a study of the mining laws in Australia and New Zealand for the purpose of considering reform in the United States laws. This geologist, Arthur Veatch, praised the mining law of Western Australia as "decidedly ahead of the United States," a "wonderfully symmetrical and carefully balanced enactment" that meets the "practical workaday conditions" of one of the "great mining states of the world."¹³

Sixty-four years after Veatch wrote these words, a committee of inquiry in Western Australia reviewed its mining laws, which had remained substantially unchanged since Veatch's study. It concluded that the law so praised by Veatch in comparison to the American law was "thoroughly out of date,... ill-suited to the requirements of the mining industry as it exists today [and] so unsatisfactory that it should be repealed and an entirely new act substituted." The committee's report resulted in adoption of a wholly new mining law in 1978.¹⁴ Meanwhile, our own Mining Law has continued to creak along.

With ample reason, as we shall see, no one defends the Mining Law in its present form. Yet if the need for reform is so universally conceded, why has the Law survived? The answers to that are not easy to unravel, and are another focus of this book. One answer is that the Law has been reformed numerous times over the years, by legislative amendment, executive implementation, and judicial interpretation. That process of accommodation furnishes a classic case history of how an aging statute can be saved from total obsolescence. As a means of salvation, however, it is highly imperfect, although it can postpone a day of reckoning indefinitely.

A second and equally valid answer is that the various reformers have had different and somewhat irreconcilable objectives. Thus various pressures for reform have tended to cancel each other out in the only arena where final, fundamental change can be provided: the Congress. Indeed, the reformist tide in the Congress seems today to be receding rapidly from the high-water mark reached in the mid 1970s. At this point, at least from all outward appearances, it seems the Law may be with us for another century or more.

That prospect is an unhappy one from the perspective of nearly every interest—the minerals industry, environmental preservationists, federal land managers, other federal land users, and ordinary private citizens. The national concerns of efficient mineral development and environmental quality that overarch all these narrower interests are, in short, not well served by the continued existence of the Mining Law.

Another reason Mining Law reform is no longer on the political agenda may be because some believe it would be an empty gesture. The domestic hardrock mining industry has fallen on some very hard times. Sharply increased foreign competition has forced prices down and led to the suspension of operations at many major domestic mines. A recent Business Week cover story announced "The Death of Mining," and soon after the Wall Street Journal documented what it calls the near-extinction of the domestic uranium industry.¹⁵ In this gloomy climate, an analysis of the Mining Law might take the form of a requiem not only for the Law, but also for the industry it has served. It is, after all, difficult to talk of law reform when one's very survival is threatened.

While scarcely anyone would argue that the failings of the Mining Law are a principal cause of the industry's current problems, the two are not unrelated. Moreover, some segments of the industry have remained relatively healthy, aided by the relatively good prices the market continues to generate for minerals like gold. And the Mining Law continues to have a marked impact on how federal lands are managed and how other land-related values are protected. For these reasons efforts to reform the Mining Law still have more than purely academic or historical interest.

But reform can only come through compromise among differing interests, and a full appreciation of the issues is essential if meaningful compromise is to be reached. The Mining Law itself is an obstacle to gaining such appreciation, for it eludes easy understanding. Its subject is complex and its text not a little arcane. Moreover, its text has been frequently supplanted by judicial or administrative agency decisions, and much of the practice under it is unwritten, fashioned more by custom and official acquiescence than by positive decision. Such encrustations on the statute tend to make the Mining Law a special preserve for a relatively few hardy souls who deal with it in a professional context.

But the subject deserves wider scrutiny. Another purpose of this book, then, is to try to remove some mystery from the Mining Law, to make it more accessible to the uninitiated, in the hope of furthering informed debate on its future. To this end, even when the discussion focuses on legal issues my objective has been to minimize dry legal analysis. Extended examination of court and administrative decisions is sometimes necessary because, as will become apparent, much of the "law" of the Mining Law is found not in the statute, but in its application by the executive and judicial branches.

Having laid out the central concerns of this book, I should say a few words about what issues will not be discussed. One is the so-called sagebrush rebellion—the rebirth, in the last few years, of efforts to transfer large federal landholdings to states or private interests. This "movement," if the fading calls for such land reform can be so dignified, is relevant to the narrower issue of Mining Law reform. If federal lands, including mineral deposits, were transferred to private interests, then the Mining Law would simply no longer apply, except to the extent Congress chose to protect extant mining claims. Mineral exploitation on such newly privatized lands would be a matter of contract between private landowners and miners (if they were different) in the same way that mineral exploitation proceeds on other private lands. (On the other hand, if federal lands and minerals were instead transferred to the states, the policy issues would be largely identical to those to be dealt with here.)

Although proposals for large-scale transfers from federal ownership have attracted a good deal of public attention, their acceptance seems increasingly remote. The domestic mining industry has displayed little support; instead, it has usually opposed transfers of federal land to states.¹⁶ Even the Reagan administration, having endorsed a limited privatization program in early 1982, seems in full retreat, and Congress has shown no enthusiasm for the idea.¹⁷ Therefore, the discussion in this book will address the various arguments for privatization only to the extent that they bear on the narrower question of the Mining Law's viability.

For essentially the same reasons the discussion will not explore the possibility o...

Table of contents

• Cover
• Title
• Copyright
• Half Title
• Original Title
• Original Copyright
• Contents
• Foreword
• Preface
• 1 Introduction
• 2 Origins
• 3 The Mining Law: An Overview
• 4 Free Access: A History of Its Decline
• 5 Success, Abuse, and Difficulty: The Up and Down Sides of Free Access in Operation
• 6 Of Anachronisms, Ambiguities, and Frustration: The Mining Law’s Ingenious Machinery in Operation
• 7 Evolution of the Law of Discovery
• 8 The Law of Discovery Today: Policy and Applications
• 9 The Problem of Scale: Multiple Claims and the Mining Law
• 10 Regulating Mining Law Activities to Protect the Environment
• 11 The Special Problem of Wilderness
• 12 The Split Estate: Federal Minerals under Privately Owned Surface
• 13 Administering the Mining Law: The Role of the Executive and the Courts
• 14 Reforming the Mining Law: A Brief History
• 15 Can Two Million Potential Property Interests on the Federal Lands Be Wrong?
• 16 The Leasing Alternative—and Strategic Minerals
• 17 The Mining Law Today: Prospects for Change
• Appendix A: The Mining Law Excerpted
• Appendix B: Outline of Typical Miners’ Rules
• Notes by Chapter
• Acronyms Used Frequently in the Text
• Name Index
• Subject Index