BRIEFING PAPER REPEALING THE GENERAL MINING LAW OF 1872
	The grizzled, bearded prospector with mule, pick-and-shovel, and gold pan is an enduring icon of rugged individualism and development of the frontier. Today's miners are more likely to be found in a Denver skyscraper, keeping one eye on the futures market and the other on Congress. On the ground, picks and shovels have been replaced by giant shovels loading 170-ton trucks from 200-acre, 1,000-foot-deep pits. Instead of separating gold from ore with gold pans, miners now leach as little as .02 ounces of microscopic gold from a ton of ore with liquid sodium cyanide solutions. The transcendent link between the prospector and the corporate miner is the federal law that conveys "the exclusive right of possession and enjoyment" to persons claiming public lands for the mining of hardrock minerals. Miners - not public policy nor land-management plans - decide when, where, and how mines are operated. Neither the 1872 General Mining Law, nor other federal and state laws, grant the Bureau of Land Management and the U.S. Forest Service the authority to override miners' decisions to remove minerals from federal-lands mining claims. Federal land management agencies cannot prohibit a mine from operating regardless of the jeopardy to other resources; the quality of miners' plans of operations; or conflicts with underlying federal land management plans, such as forest plans. Although a substantial body of state and federal laws apply tangentially to federal mineral mining, federal land managers are limited to evaluating alternatives and suggesting precautions. The 1872 Mining Law Verbatim Excerpts from Congressional Research Service Issue Brief:IB89130 (January 22, 2001) Summary The General Mining Law of 1872 is one of the major statutes that direct the federal government's land management policy. The law grants free access to individuals and corporations to prospect for minerals in public domain lands, and allows them, upon making a discovery, to stake a claim on that deposit... Currently, mineral claimants must pay an annual maintenance fee of $100 per claim to hold the claim. Once a claimed mineral deposit is determined to be economically recoverable, and at least $500 of development work has been performed, the claim holder may file a patent application for title to both the surface and mineral rights. If approved, the patent can be obtained for $2.50 or $5.00 per acre depending on the type of claim. Since 1995, Congress has enacted one-year moratoriums on the issuance of patents, whereby new mining patents generally will not be issued, but grand-fathered applications will be processed... A BLM study determined that of approximately 700 million acres of federal subsurface minerals under the agency's jurisdiction in 2000, approximately 165 million acres have been withdrawn from mineral entry, leasing, and sale, subject to valid existing rights... Background The purposes of the 1872 Mining Law were to promote mineral exploration and development on federal lands in the western United States, offer an opportunity to obtain clear title to mines already being worked, and help settle the West... Public domain lands are those retained under federal ownership since their original acquisition by treaty, cession, or purchase as part of the general territory of the United States, including lands that passed out of but reverted back to federal ownership. "Acquired" lands -- those obtained from a state or private owner through purchase, gift, or condemnation for particular federal purposes rather than as general territory of the United States -- are not covered by the 1872 Law. Claim-Patent System: How it Works After a prospector has conducted exploration work on public domain land, he or she may stake a claim to an area believed to contain a valuable mineral. Under legislation initially enacted by the 102nd Congress, claimants must pay an annual maintenance fee of $100 per claim to hold a claim on public land. This superseded a previous requirement that $100 of annual development work be conducted per claim...a placer claim is usually limited to 20 acres but a lode claim may be slightly greater than 20 acres... The following provisions currently apply to claims: - There is no limit to the number of claims a person can locate. - There is no requirement that mineral production ever commence. - Timing or pattern of development is not regulated. - Claims can be held indefinitely with or without mineral production. - Mineral production can take place without a patent or revenue payments to the federal government. Major Mining Legislation After the 1872 Mining Law In 1920, the Mineral Leasing Act removed oil, gas, oil shale, phosphates, sodium, and certain other minerals from the claim-patent system of the 1872 Mining Law and set up a system of leasing in which the federal government retains ownership of the leased lands. Coal, which previously has its own claim-patent law, was also included in the 1920 Leasing Act. After 1955, common variety minerals such as sand, stone, gravel, cinders, and pumice were sold under the Minerals Act of 1947, as amended... During the 1960s and 1970s, the Multiple Use Sustained Yield Act, Wilderness Act, National Environmental Policy Act (NEPA), the Federal Land Policy Management Act (FLPMA) addresses environmental protection, multiple use, and management of federal land generally...the Mining Law has no direct environmental controls... Frequently Asked Questions (Prepared by the Center for Environmental Equity) What about existing mining claims if the 1872 law is repealed? Valid existing claims will continue and can be mined under the well-established legal doctrine of valid existing rights. 235,000 claims had been filed on federal domain lands at the end of 2000. Only filing of new claims will cease. What are valid claims? Validity examinations determine that mining claims are legally valid and can be mined profitably. Currently, the BLM and U S. Forest Service do not require validity determinations as a prerequisite for approving plans to mine federal claims. Federal laws and regulations, such as the Clean Water Act, which apply tangentially to mineral mining operations and existing regulations will apply valid existing claims are mined. Don't we rely on federal lands for minerals? Less than 15% of domestic mineral ore is mined from federal domain lands; less than 4% of minerals other than gold and silver. More than 75% of gold and silver ore is used for jewelry, medals, and bullion. Non-federal sources and can easily supply gold for electronics, industry, dentistry, and medicine. Don't we need public-land minerals for strategic and industrial reasons? Only the platinum and palladium group represents strategic metals not readily obtainable from domestic non-federal lands or from recycling. Nearly all platinum and palladium ore is mined in one location in Central Montana. Congress is free to establish a mineral leasing system to guarantee access to minerals for national security or other national priorities. What about recreational mining? Federal agencies can establish permit or special-use systems for recreational mining and rockhounding. For example, the Roseburg District Office of the BLM has withdrawn a portion of the public domain from mineral entry in order to provide a designated area for recreational gold panning. Recreational mining will continue on valid existing claims. What about the economic effects of repealing the 1872 law? Mining will continue at existing mines and valid existing claims may be mined. Little dislocation is anticipated because the relative importance of metal mining as a source of employment in the western economy is minimal and shrinking. For the twelve western states (Alaska, Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming), slightly more than one-tenth-of-one-percent of total employment is directly associated with mineral mining, about 1-in-2,500 jobs. About $1.90 of every $1,000 dollars earned in the West is directly associated with metal mining. What are the fiscal impacts of repeal? Miners of federal lands do not pay royalties to the federal treasury for ores mined from public land. Nonetheless, tax credits (depletion allowances) averaging 15% of the value of the ore mined are deductible from miners' income-tax liability. Federal revenues from claim and location fees totaled $23.9 million in year 2000, but supervision and clean-up costs significantly exceed this income source. Didn't Clinton stop mining in roadless areas? No. The 1872 Law preempts this new rule, like all other land-planning laws such as federal forest plans, plus the 1872 law assures surface access to mining claims. What about patents? Congress has continued a moratorium on patents through a rider to federal appropriations laws. Congress could continue this year-to-year moratorium or pass a separate law making the moratorium permanent. Repealing the 1872 law stops future claims that could be patented under the 1872 Law. Sources Crossing the Next Meridian: Land, Water, and the Future of the West,Charles F. Wilkinson, pgs. 28-74, Island Press, Washington, D.C. 1992. Wilkinson is a Professor of Law at the University of Colorado. Lost Landscapes and Failed Economies: The Search for a Value of Place,Thomas Michael Power, pgs. 89-130, Island Press, 1966. Power is professor and chair of the Department of Economics at the University of Montana in Missoula, Montana. Mineral Commodity Summaries,U.S. Geological Survey, U.S. Department of Interior. Annual report of the sources and uses of mined and recycled minerals, and imports and exports. Available at "Mineral Resources: Value of Hardrock Minerals Extracted From and Remaining on Federal Lands," Publication B-248533, United States General Accounting Office, August, 1992. "Mining Law",Terry S. Maley, 1985. Professor and consultant on mining law. "The 1872 Mining Law",IB89130, Congressional Research Service, January 22, 2001. The Mining Law: A Study In Perpetual Motion,John D. Leshy, Resources for the Future, Inc., Washington, DC, 1987. Leshy was a former professor of law and the Solicitor for the U.S. Department for the Interior in the Clinton Administration.