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The Future of a Mining Law from the Past - 2002-08-16

The 1872 Mining Law was a cornerstone of America's western expansion. It declares "all valuable mineral deposits in public lands free and open to exploration and purchase, upon the payment to the proper officer of $5 per acre" a little less than half a hectare. It prompted a steady stream of prospectors to head west, to stake their claim. The mining industry has changed since 1872, but the Mining Law has not, and it still applies to more than 100 million hectares of federal land. As written, the statute does not require companies to protect the environment or even clean up after they close a mine… and environmentalists want that changed. A proposal now before the House of Representatives would institute many of the reforms they want, but the mining industry says there's no need to amend the law.

The 1872 mining law was created when the West was still wild. Congress hoped the legislation would encourage development of the region but the lawmakers in the late 19th century probably did not imagine something like the Silver Butte Formosa Mine in Southern Oregon.

It's located a few kilometers outside the small, rural town of Riddle. The mine never made anyone rich, the Canadian company that last owned it went bankrupt. But the environmental damage caused by the mine is significant.

Walk up to the main opening of the mine, which is now sealed with cement, and you notice water tumbling down a system of half-meter wide canals. The water is flowing out of leaks in the mine opening. If the canals weren't here, the water would flow down the steep hillside.

A reddish-orange substance is settling out of the water and building up at the bottom of the canals. Larry Tuttle with the Center for Environmental Equity says these are heavy metals that were dissolved in the water. The water running over the reddish-orange stuff looks clean enough, but Mr. Tuttle says you wouldn't want to drink it. "Water coming out of here is typically PH-3… So, that's a little bit less than battery acid… I don't know if it's up here right now but someone put in a rubber glove up here not too long ago and it's eaten up the rubber glove," he says.

The mining that took place here in the 19-80s and 90s didn't use massive amounts of harsh chemicals. The sulfuric acid in the water was released from rocks that were crushed, exposing naturally occurring chemicals to air and water. The canals are actually part of the cleanup process. This water used to run downhill on the groundcarrying with it those heavy metals.

Larry Tuttle says the most damaging part of this mining operation is about one and a half kilometers away, up a dirt road. There, miners piled tons of crushed rockor mine tailingson a ridge. On one side of the ridge is the watershed for the town of Canyonville. On the other side the watershed for nearby Riddle.

In 1993, a rainstorm created a landslide that sent the mine tailings down the Riddle side of the hill poisoning almost 30 kilometers of a stream that eventually flows into Riddle's drinking water system. So far, the city's water is fine but chemicals continue to flow into that same stream eight years later although at a lower level. The city can't go after the company responsible for the mine because it has since gone out of business. "So it's been up to the [federal Bureau of Land Management] and the Oregon Department of Environmental Quality to do the cleanup up here," he says.

Mr. Tuttle is one of many environmentalists who want the laws changed so disasters like the Silver Butte Formosa Mine don't happen again. He says agencies need to be given the authority to block mining in certain areas. And he'd like the federal mining law to include specific water quality standards for mining operations. "And the third is to stop the claims system," he says. "It makes no sense to let anybody scatter across the landscape and file a mining claim when it may conflict with all the other plans for that area."

The mining industry disagrees and it has been a formidable lobbying force over the decadeseven though its economic importance to the West has declined during that same time. Laura Skaer heads the Northwest Mining Association. She says environmentalists are trying to make the 1872 law into a mining regulatory scheme when it was intended to be an economic development law. "It never was intended to be any type of regulatory law. Mining is regulated by more than 35 federal statutes and the regulations that go along with them," he says.

Ms. Skaer points to a 1999 National Academy of Sciences study, which concluded that the mining regulations currently in place are adequate to protect the environment. She concedes the study did point out a few gaps but those have since been filled. The NAS report also concludes that while the current regulations are sufficient they aren't being enforced adequately.

But Bonnie Gestring, a clean mining activist with the private Mineral Policy Center in Montana says she will be satisfied with nothing less than wholesale reform of current mining laws. "They're not strong enough and they're not being enforced. It's a combination of the two factors," she says. "The regulations simply aren't strong enough in that there are significant loopholes that are not addressedsuch as no provisions for groundwater protection. And across the board we see that these regulations are not being adequately enforced."

Ms. Gestring says she supports legislation introduced in the U.S. House of Representatives in May, by West Virginia Democrat Nick Rahall. "It will provide the federal land manager the ability to deny mines where there are other land values that exceed mining. And it will provide fiscal reform in terms of providing much stronger protection to the taxpayer in terms of cleaning up mine sites," she says.

Similar bills in the past have faced stiff opposition from the mining lobby, which argues that folks like Ms. Gestring are just trying to put them out of business. "What they really want is no mining," she says.

But Laura Skaer with the Northwest Mining Association says those who oppose mining don't understand its importance to the U.S. economy. "It's like, "Yes we want all the products that come out of miningwe want our cell phones and our computers and our SUVs but we really don't want to have to look at that hole in our back yard," she says.

Ms. Skaer with says there's no need for drastic changes, such as those in the Rahall Bill, because there have been plenty of new regulations implemented over the past three decades. "Mining today is done in a very environmentally responsible manner," she says.

But critics charge that the Silver Butte Formosa Mine in Oregon is proof that the opposite is true, mining at this location started after most recent regulations had been put in place.

Ms. Skaer does say more changes are necessaryshe supports setting up a program to send royalty payments to the federal treasury for minerals found on public land. Her proposal would send the U.S. government about $10 to $20 million a year . She says that money should then be dedicated to cleaning up abandoned mines, such as the one near Riddle.

It is still an open question whether environmentalists will be able to convince Congress to completely overhaul the 1872 mining law. Bonnie Gestring with the Northwest Mineral Policy Center notes that the U.S. mining industry has been in decline for a long time. She believes the measure currently before House lawmakers will be an important test of whether the industry still wields enough political power to stop it.