Between a rock and a hard place: The Mining Law of 1872

by Brennan Jorgensen

In the New York Times, Robert M. Hughes and Carol Ann Woody call for the end of the Mining Law of 1872 as a means to protect fragile ecosystems from invasive mining practices. They cite the Environmental Protection Agency's estimates that headwater streams in 40 percent of Western watersheds are polluted by mining.

Originally established in response to the California Gold Rush, the Mining Law allows United States citizens and firms to explore for minerals and establish rights to federal lands without authorization from any government agency. The only cost to mining companies is an annual $100 holding fee for each claim, with a maximum claim size of 20 acres. Claimants may then acquire outright title to the land by obtaining a patent, at a per-acre cost of $2.50-$5. Mining firms do not pay royalty taxes on the minerals taken from federal land.

While environmental activists call for the end of the Mining Law and stricter regulations on mineral exploration and development, a PERC Policy Series by David Gerard offers a more comprehensive summary of the problem, as well as an alternative solution:

Reform advocates often imply that since the Mining Law contains no environmental protection measures, mining is unregulated. Of course, this is not the case. Mining activities on federal land are subject to federal, state and local regulations for air and water quality, solid waste, public safety and fire control. The Forest Service and BLM have their own regulations. Although regulations such as the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act are not mining-specific, mining firms must comply with them.
Hughes and Woody claim that the mining industry’s track record on environmental protection, “hardly inspires confidence,” but as Gerard points out, the majority of environmental degradation is a byproduct of abandoned sites, which were mined before environmental regulations went into effect.
While environmentalists speak as though polluters should be liable for the harm they cause others, a number of deficiencies in federal laws violate this principle. These deficiencies are not found in the Mining Law but, rather, in environmental laws such as Superfund and the Clean Water Act. In particular, the requirement that mining companies take on responsibility for others' damages is hindering cleanup, not helping it. Superfund and the Clean Water Act are keeping both mining companies and state governments, which have an increasing role in environmental-protection matters, from active reclamation of abandoned sites.
The Mining Law as it now stands is not without merit. The holding fee was enacted in 1992 under the Clinton Administration, which cut the number of claims reported to BLM from one million each year down to an estimated 340,000. Additionally, the holding fee allows claimants to hold marginal sites in anticipation of changing market conditions. “Market forces rather than a statutory time constraint may determine if and when production begins,” writes Gerard.