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WASHINGTON � Though the General Mining Law of 1872 may not be the oldest law on the books, it has resisted change for more than a century, as the grizzled prospector with a pack mule has evolved into the billion-dollar multinational corporation boring into mountains for precious minerals. Yet critics of the law � which was designed to promote exploration of public lands � hope finally to force it into the 21st century through a far-reaching reform bill in Congress. Today, hard-rock mining still evokes the romance of gold rushes in the 1800s that helped to settle the West, build new towns and create new businesses. But “all that kind of romantic stuff is long gone,” said former Department of Interior Solicitor John Leshy of the University of California Hastings College of the Law. The 1872 law, which encourages individuals and corporations to prospect for minerals on public lands, perpetuates a legacy of abandoned mines with estimated cleanup costs of $30 billion, polluted ground and surface waters, and scarred landscapes in the West, Northwest and Southwest. Government regulators often have been “timid and cowed” by the mystique of the mining industry, said Leshy. “Regulators and land managers need more backbone to protect the land,” he said. “Reforming the law is about bringing hard-rock mining into conformity with basic uses of federal land that other users have operated under for years. There has been a yo-yo atmosphere of regulation dependent on whichever administration is in power. It’s time to end that.” To that end, U.S. Representative Nick J. Rahall, D-W.Va., chairman of the House Natural Resources Committee, recently introduced a bill to reform what he calls “the Jurassic Park” of all federal laws. Rahall said he plans to hold hearings and hopes to move a bill through the House and over to the Senate by the end of the year. The hard-rock mining industry is neither monolithic nor averse to any change in the 1872 law, said Laura Skaer, a natural resources attorney and executive director of the Northwest Mining Association. The industry has experienced considerable consolidation in recent years. In the mid-1990s, said Skaer, there were 16 midsized to large producing companies, but now there are five, the other 11 having been acquired by the survivors. Her organization consists of “explorationists” or junior mining companies. However, the industry, which competes globally, is “healthy,” she added. In fact, the U.S. Geological Survey reports the estimated total value of domestically processed nonfuel minerals was about $542 billion in 2006, compared with $493 billion in 2005. The Rahall bill, Skaer said, is quite onerous and could chill investment capital. But the lawmaker has indicated he’s open to listening to industry needs, such as legal certainty of its claims to public lands, she said. “If the age of a law is the determining factor of whether it should be changed, we have some laws older than the Mining Law we ought to look at,” she added. “Maybe it has survived and persevered because it has proved its worth.” The General Mining Act of 1872 is one of the government’s major tools for federal land management policy. Signed into law by Ulysses S. Grant, the statute was designed to promote mineral exploration and development of public lands in the West, and to provide opportunities to obtain clear titles to mines already being worked. In his book, Crossing the Next Meridian, Charles Wilkinson of the University of Colorado School of Law, writes that the 1872 law is “still a miner’s law � built on open access, free minerals, unlimited tenure, and rights to land as well as minerals.” Individuals or corporations can prospect for minerals on federal lands, and when a deposit is found, the prospector can stake a claim on the land. Prospectors can hold unlimited claims. They pay a $126 annual holding fee per claim. If they want to obtain title to surface and mineral rights, they pay a patent application fee plus $2.50 to $5 per acre after patent approval. But a patent is not required to mine a claim. No royalties are paid While the fees were considered substantial when enacted, the Congressional Research Service (CRS) says the claimed land and minerals now far exceed these amounts in value. There is no requirement that a claim ever be mined, but if it is, the government receives no royalty, unlike royalties from the coal, oil and gas industries. At the end of fiscal 2003, nearly 45% of mining claims were in Nevada, and nearly another 35% were in Arizona, California, Montana and Wyoming. Stephen D’Esposito, president of Earthworks, an advocacy group supporting reform, said data from the federal Bureau of Land Management shows more than 89,000 new mining claims have been staked in Western states in 2006 � six times the number in 2001. The big jump, D’Esposito said, was caused by record-high metals prices and increased demand from China. New mines are being proposed near Mount St. Helens in Washington state, the Boise watershed in Idaho and in the Santa Rita Mountains near Tucson, Ariz., he added. Local officials, residents, environmentalists and conservationists are worried about these and other proposed mines because of their potential impact on water supplies, wildlife habitats and recreational opportunities, he said. Rahall, the congressional reformer, and others note that 40% of the headwaters of Western waterways have been polluted by mining. The 1872 law contains no environmental provisions, they say, and although the nation’s environmental laws apply, there are coverage gaps that need to be filled. “When you have proposed mines in areas that are environmentally sensitive or where controversial types of practices are proposed, it often will result in litigation,” said D’Esposito. “There have been some effective litigation strategies. They either slow down the process of permitting mines or in some rare cases prevent it. But very few new proposed mines are stopped by litigation.” But litigation and fear of litigation produce permitting times of five to seven years “at best” for new mines, said Northwest’s Skaer, adding it takes only two years in Chile. “The time value of money becomes an important factor. It’s very frustrating.” Imposing standards The Rahall bill would establish an environmental standard for hard-rock mining in the 1872 law; impose an 8% royalty on the production of minerals from any claim; create a fund � from fees and royalties � to clean up an estimated 500,000 abandoned mines; identify categories of land protected from hard-rock mining; and authorize citizen suit enforcement, among other things. The bill is supported by Earthworks, the Pew Campaign for Mining Reform, and other groups. Andrew Morriss, professor of law and business at the University of Illinois College of Law, describes himself as “pretty skeptical” that the law needs reform. In most of the world, mineral rights are claimed by the government and surface rights are claimed by the landowner, he noted. The 1872 law is unique in that “we reward people who invest in locating valuable resources. We reward by giving title and we also allow them to claim the land,” he explained. “We treat our rental cars less carefully than our own cars,” said Morriss, adding, “so the Mining Law has two key incentives: to invest to find valuable resources and, once found, to recognize the tradeoff between destructive and nondestructive uses of the land. It’s a better alternative than any other country has tried.” Most of the environmental problems are due to mines closed for years, said Morriss, adding that that’s not a problem going forward because mining companies have changed their operations. Proposed reforms, he said, generally involve large payments to the federal government by the resource owner. “That will cause there to be less development which is, in fact, the goal of [mining] adversaries,” he said. “They generally won’t say that, but they have never seen a mine they like.” New dynamic When Rahall introduced his bill, he noted that he has been pushing reform of the 1872 law for more than 20 years. But he and his supporters believe that this year represents the best chance for change in at least a decade. “I’ve been around this block enough times that I’m never really optimistic, but the climate is better than the last real effort in 1994,” said Leshy, the former Interior solicitor. First, he said, consolidation in the industry has reduced the power and potency of small miners, who were a very influential, grassroots lobbying force. Second, with the expiration of the Superfund tax, people are looking for cleanup money. Hard-rock mining, he said, “pays nothing, and frankly, in most of the West, polluted places are from hard-rock mining.” Third, “raw politics.” Two years from now, the industry could be in worse shape politically if Democrats increase their margins in Congress and a Democrat is president, said Leshy. “The time to cut a deal may be now.” And fourth, the environmental-conservation communities are a bit more realistic about what reform can be accomplished after years of deadlock, he said. Key issues will be the amount and type of royalties, environmental and permitting standards, the type of land placed off-limits to mining, the role of the states as regulators, and how any revenue raised for the government will be used, said Leshy and others. There is common ground in the desire to clean up abandoned mines, said the industry’s Skaer. But the industry itself would like the law to guarantee security of claims, from beginning exploration through closure, she said, and a streamlined permitting process that penalizes frivolous litigation. Western senators, regardless of political party, have blocked reforms in the past in order to protect jobs and local economies. Key to any effort this year, agreed both sides, will be Nevada Democratic Senator Harry Reid, majority leader of the Senate. “There’s a big mining industry in his state, but he also has been a leader on environmental issues,” said D’Esposito. “If we approach this with the goals of a strong, sustainable mining sector, rewarding best practices by mining companies now, and promoting conservation and environmental protection, it opens the possibility of something that works for all parties.”

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