Senators rush to keep mining law stuck in the 1800s

Apr 26, 2023

By Rachael Hamby

Bill sponsored by recipients of contributions from mining industry would make sure companies can dump mine waste on public lands

On Tuesday, U.S. Senators Catherine Cortez Masto of Nevada and Jim Risch of Idaho introduced the Mining Regulatory Clarity Act, which would allow mining companies to dump mine tailings and other waste on neighboring public lands where the company has a mining claim but has not proven that valuable minerals exist.

Until recently, mining companies relied on a loose interpretation of the General Mining Law of 1872, which still governs hardrock mining on public lands today. This interpretation held that if a mining company had staked a mining claim on public lands, it could dump mine waste on adjacent public lands. In other words, the rights a mining company enjoyed on a valid mining claim were interpreted to extend outward, allowing companies to use even more public land by dumping their waste there.

However, recent court decisions have upended this interpretation. In May 2022, the 9th U.S. Circuit Court of Appeals issued a ruling that adopted a stricter interpretation of the law, finding that those rights don’t extend to neighboring lands. In that case, Canadian mining company Hudbay Minerals planned to dump mine waste from its planned Rosemont copper mine in Arizona on neighboring land that had not been shown to contain valuable minerals. Agreeing with a lower court decision from 2019, sometimes referred to as the “Rosemont decision,” the appeals court found that the U.S. Forest Service should not have assumed that the company’s claim to the neighboring land was based on the existence of valuable minerals. Put another way, the Rosemont decision says that a mining company must prove that valuable minerals exist on a claim before it can occupy that land by dumping waste on it, and federal agencies must verify the existence of valuable minerals rather than taking the company’s word for it.

A mine waste pile in Montana, James St. John, CC BY 2.0

Two other cases in Nevada have arrived at a similar reinterpretation of the law. In February 2023, U.S. District Judge Miranda Du stopped short of reversing the Bureau of Land Management’s approval of the Thacker Pass lithium mine but did find that the BLM should have verified the existence of valuable minerals on land where the company planned to dump its waste. Then in March 2023, U.S. District Judge Larry Hicks similarly found that the BLM made the same mistake when it approved the Mount Hope molybdenum mine. “BLM cannot skirt the Mining Law requirement that valuable mineral deposits must be found in order to occupy the land,” Hicks wrote in that decision.

Mining companies, which have been accustomed to dumping their mine waste on public land for the past 150 years, are upset by this interpretation of the severely outdated 1872 Mining Law that requires them to confine their waste to the land on which they are actually mining. Cortez Masto said in a statement that her bill would “allow mining operations to continue under long-standing and historic application of the law.”

The bill, S. 1281, would ensure that mining claimants “shall have the right to use, occupy, and conduct operations on public land, with or without the discovery of a valuable mineral deposit” as long as the required location fee is paid or the claimant qualifies for a waiver of the location fee. The bill defines “operations” to include: prospecting; exploration; discovery and assessment; development; extraction; processing; reclamation; or “any activity reasonably incident” to any of those, including construction and maintenance of roads or any other infrastructure “regardless of whether that incidental activity is carried out on a mining claim”.

An open pit mine in Utah, arbyreed, CC BY-NC-SA 2.0

Cortez Masto claims her bill is “consistent with long-standing and historical application of the law,” but the provisions in her bill are actually worse than the 1872 status quo. If this bill were to pass, not only could companies dump mine waste on public lands without discovery of a valuable mineral deposit, they could also conduct mining-related activity, such as building and maintaining roads, on any public land without holding any mining claim at all. Furthermore, by eliminating the need to prove the existence of valuable minerals in order to validate a claim, this bill would allow anyone to establish rights on any available public lands — regardless of their mining potential — by simply staking a mining claim, which could interfere with conservation designations, renewable energy projects, and transmission line construction.

It’s unsurprising that Cortez Masto and Risch are acting so quickly to address the concerns of the mining industry, given that mining companies have been significant contributors to both lawmakers’ campaigns over the years. Senator Cortez Masto (D-NV) received $62,050 in contributions from the mining industry during the 2021–2022 election cycle, the second-highest amount in mining contributions for that election cycle among active U.S. senators, and has received over $83,000 from the mining industry over the course of her career so far. Senator Risch (R-ID) has received more than $131,000 in contributions from the mining industry during his career. The bill’s cosponsors have also benefited from mining industry contributions, with Senator Mike Crapo (R-ID) receiving over $235,000, Senator Kyrsten Sinema (I-AZ) receiving over $25,000, and Senator Jacky Rosen (D-NV) receiving over $42,000 over the course of their careers. (All figures from the Center for Responsive Politics.)

An open pit mine in Nevada, Bureau of Land Management

This bill, and the way it was introduced, is just one example of how much the mining industry has come to rely on a legal and regulatory framework put in place more than 150 years ago and the lengths to which the industry will go to keep the 1872 law in place. In 2022 alone, the mining industry spent over $22.6 million on lobbying. Mining reform legislation has been introduced in Congress repeatedly over the past 15 years but has stalled every time. The most recent iteration of the Hardrock Mining and Reclamation Act, introduced in 2019 by then-Senator Tom Udall of New Mexico, prompted a $1.2 million campaign by the mining industry to defeat it.

Now, over 150 years of scientific and technological advancement later, the scope and scale of mining activities would be unrecognizable to miners and policymakers from the 1870s, and yet our nation’s policies and regulations have remained essentially unchanged. It’s time for an overhaul of the legal and regulatory framework that governs hardrock mining — and indeed all extractive industries — to provide regulatory certainty for the future. Reforming the General Mining Law of 1872 is the way to hold mining companies accountable when they occupy public lands to extract public resources.

As we transition away from fossil fuels, we will need more of the minerals needed to produce electric vehicle batteries, solar panels, and other renewable energy technologies. While more of this demand can and should be met through improved recycling practices and requirements, it’s unrealistic to expect that we can achieve the needed energy transition without new mining. But this does not justify cutting corners in order to maximize industry profits in the process.

Mining infrastsructure in Montana, James St. John, CC BY 2.0

We’ve seen what happens when extractive industries are prioritized over communities, landscapes, and wildlife. We know better now, and yet these lessons learned are not translating into needed policy changes. Our laws and regulations should reflect what we’ve learned from 150 years of unfettered and irresponsible resource extraction in the West: that inadequate environmental safeguards endanger the irreplaceable landscapes, waterways, and wildlife Westerners cherish.

Featured image: An open-pit mine in Nevada, Bureau of Land Management