Bring me my fainting couch: Hardrock mining edition

Dec 19, 2023

By Rachael Hamby

A reality check on mining industry claims that “we might as well say goodbye to mining” if 151-year-old mining law is updated

For more than 150 years, hardrock mining in the U.S. has been governed by the General Mining Law of 1872, a law that has remained largely unchanged since its passage during the early decades of mineral exploration and extraction. The law was intentionally designed to make mining — and by extension, westward settlement — more attractive by rewarding miners who took on the risks of developing a mine with expansive and easily-secured rights to the land and resources they developed. The mining industry, which benefits greatly from this permissive system, fought updates to the law ever since, despite extraordinary increases in the scope and scale of modern mining. Today’s mining technologies and techniques would be unrecognizable to miners and lawmakers from the 1800s, and yet the laws that govern mining have not been updated to reflect these advances. This is not for lack of trying: various iterations of a bill to update the General Mining Law of 1872 have been introduced over the past 30 years, but have failed to pass thanks in part to aggressive opposition campaigns by the mining industry.

Most recently, on December 12, the Senate Energy and Natural Resources Subcommittee on Public Lands, Forests, and Mining heard testimony on the Mining Regulatory Clarity Act, which would be worse than today’s Civil War-era status quo in its giveaway of America’s public lands for mining companies to occupy and use as free trash dumps.

The Barrick goldstrike mine in Nevada, EcoFlight

The witness panel included two representatives of the mining industry: Katie Sweeney of the National Mining Association, and Barrick Gold’s Rich Haddock. Unsurprisingly, Sweeney and Haddock expressed enthusiasm for the Mining Regulatory Clarity Act’s giveaway of public lands to mining companies. For many years, companies have been accustomed to staking claims on public lands for hardrock mines and building power lines, pipelines, roads, and mine waste dumps. However, recent court decisions including the ‘Rosemont decision’ found that these practices violated the language of the General Mining Law of 1872, which requires a mining company to show evidence that valuable minerals exist on their claims before they get to use and occupy public lands for purposes like dumping waste. These decisions also held that public land management agencies must verify the existence of valuable minerals rather than taking the company’s word for it. The Mining Regulatory Clarity Act removes the Mining Law’s simple requirement that miners actually prove they discovered valuable minerals, which would be worse than the already-outdated law and would undo decisions by courts and by the Biden administration.

Both the mining industry representatives and Senator Catherine Cortez Masto of Nevada, one of the sponsors of the Mining Regulatory Clarity Act, attempted to claim that the bill would have no impact on conservation efforts or adverse effects on Indigenous communities. However, this is a half-truth that misconstrues the bill’s impacts on current versus future conservation efforts, and glosses over unintended consequences of the bill.

The Thompson Creek molybdenum mine in Idaho, Ecoflight

How bad is it?

The bill’s incredibly broad language 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.” If this bill were to pass, not only could companies obtain an overarching statutory right to dump mine waste on public lands, they could also build and maintain roads and other infrastructure on any public land while preventing any other land use, like conservation, recreation, or renewable energy development.

Cortez Masto and the mining industry representatives took pains to point out that the bill would not open up already-protected areas, such as existing national parks, to new mining. However, the expansion of rights associated with mining that this bill would create poses a very real threat to any future conservation efforts on lands that currently are not protected but could be, including as new national parks or national monuments. 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. This could interfere with future conservation designations, renewable energy projects, transmission line construction, or any other potential future use of those public lands. Indeed, a bad actor could use these expanded rights to file a mining claim for the purpose of preventing conservation, renewable energy development, or other uses to which they object. Landscapes across the West — from Dolores Canyons in Colorado to the Owyhee Canyonlands in Oregon — would be at even greater risk of being claimed for mining activities, whether or not a valuable resource exists, before they can be protected. To focus on the bill’s lack of impact on already-protected lands willfully and dangerously ignores this very real possibility.

The Mission copper mine in Arizona, Joyce Cory via Wikimedia Commons

The mining industry and its boosters in Congress are out of touch with the West

The Center for Western Priorities’ Winning the West poll, conducted in July 2023, surveyed voters in Arizona, Colorado, and Nevada on their concerns around mining on public lands. When asked how important it is to update the General Mining Law of 1872, 84 percent of respondents said it’s important, with 36 percent indicating it’s very important. Among Nevada voters specifically, 82 percent of respondents said it’s important to update the General Mining Law of 1872, with 36 percent indicating it’s very important. Across all three states, 68 percent of respondents prefer an approach that includes modernizing our mining laws, preventing companies from dumping mining waste on public lands, and requiring companies to pay royalties on the minerals they extract. Among Nevada voters specifically, an even higher percentage — 72 percent — preferred this approach.

Furthermore, voters aren’t fooled by the mining industry’s assertions that current laws and regulations are sufficient and that modernizing our laws and regulations would make us more dependent on foreign countries. In the July 2023 Winning the West poll, almost two-thirds of voters — 63 percent — understand that the reason the U.S. hasn’t updated the General Mining Law of 1872 is that the mining industry has spent millions of dollars lobbying decision-makers and donating to political campaigns. In just the first three quarters of 2023, the National Mining Association has spent nearly $2 million on federal lobbying, according to the Center for Responsive Politics. Barrick Gold of North America and three of its subsidiaries have spent nearly $1.4 million on federal lobbying in the first three quarters of 2023, according to U.S. Senate lobbying disclosure filings. Over the course of their careers Senators Cortez Masto and James Risch of Idaho, the sponsors of the Mining Regulatory Clarity Act, have received more than $84,000 and $130,000 in campaign donations from the mining industry, respectively.

The Bingham Canyon copper mine in Utah, Doc Searls via Wikimedia Commons

Haul out the fainting couch

The mining industry and the bill’s sponsors are attempting to counter the unpopularity of their bill’s concepts by creating a sense of panic that without the Mining Regulatory Clarity Act, the mining industry in the U.S. will disappear. As Senator Cortez Masto stated, “without this bill mining in the United States would be severely impacted for the foreseeable future.” Sweeney, of the National Mining Association, claimed that failure to pass the bill would “undermine the investment attractiveness of the United States,” and went on to claim that, “If you can’t use those claims for ancillary purposes, and you don’t have other places to put those uses, then there will be no mining.”

In their sky-is-falling rhetoric, the industry and sponsors ignore the fact that application of the Rosemont decision does not “end mining.” Indeed, major mines have recently been approved, and allowed to proceed by the federal courts, while applying the Rosemont decision, including a large lithium mine and a large vanadium/uranium mine, both in Senator Cortez Masto’s home state of Nevada. Also, as the Interior Department has recently held, there are other viable options for mining companies to obtain rights to use federal land, such as land exchanges, special use permits and rights-of-way, and use of some lands under “millsite” claims under the Mining Law. While some of these options involve payment of fees and a different regulatory process than simply asserting an automatic statutory right (as would be the case under the industry-backed bill), these options have been used by mining companies for decades. All other industries using public lands (such as oil and gas, coal, logging, and renewable energy development) have prospered under this permitting system, and there is no reason why the mining industry cannot as well.

The Bald Mountain gold mine in Nevada, Bureau of Land Management

The mining industry’s business model is based on an outdated legal and regulatory structure that no longer pencils out in today’s reality. That business model needs updating to reflect changing technology, evolving public opinion, and lessons learned from ecological disasters caused by mining in the past. Western communities and landscapes have suffered the environmental and health impacts of irresponsible mining, and shouldered the costs of cleanup, for far too long, as the Center for Western Priorities’ Backyard Problems report demonstrates. It is not American taxpayers’ responsibility to make private industry’s flawed and outdated business model work — especially for an industry that pays nothing in royalties for the public resources it extracts from public lands. The health of our communities, landscapes, and wildlife are not the mining industry’s to sacrifice.

There’s a better way forward

During the same December 12th hearing, the subcommittee also heard testimony on the Clean Energy Minerals Reform Act, a long overdue update of the nation’s mining laws which would bring hardrock mining into the 21st century. The latest in a 30-year series of efforts to update the General Mining Law of 1872, the bill proposes a number of urgently needed and long overdue reforms to the 151-year-old law currently in place.

The reforms include:

  • Establishing a rental and royalty structure for hardrock mining. This would treat hardrock mining the same as all other extractive industries on public lands, ensuring mining companies compensate taxpayers fairly for the public lands they occupy and the public resources they extract.
  • Balancing mining with other land uses by deciding where mining may or may not be suitable, as part of regular land management planning. This review process will consider withdrawing lands that are inappropriate for mining and designate areas more suitable.
  • Setting reclamation standards and bonding requirements that reflect realistic estimates of the costs to clean up mining sites.
  • Requiring meaningful consultation with Tribes and communities.

An open pit mine in Utah, arbyread via Flickr

Several of the reforms proposed in this legislation were also identified by a federal Interagency Working Group on Mining Laws, Regulations, and Permitting. Following Tribal consultations, a series of information sessions, and a request for comments from the public, the working group released a report in September 2023 outlining a number of common-sense reforms and updates to bring mining into the 21st century.

As the climate crisis worsens, it is imperative that the world transition away from fossil fuels and towards a clean energy economy. While improved recycling and reuse of materials can help, new mining will be needed for the technologies that are key to this transition. However, the climate crisis cannot be an excuse to take shortcuts around our environmental protections, or to sacrifice the health of Western communities, wildlife, and landscapes. The damaging history of irresponsible mining will continue to repeat itself unless we change our approach and update our laws and policies for the 21st century.

Learn more: