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«CHANGING AN ANACHRONISM: CONGRESS AND THE GENERAL MINING LAW OF 1872 PERRY R. HAGENSTEIN* Few have argued that Congress should act with haste-fewer ...»

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CHANGING AN ANACHRONISM: CONGRESS

AND THE GENERAL MINING LAW OF 1872

PERRY R. HAGENSTEIN*

Few have argued that Congress should act with haste-fewer still

have argued that Congress does act with haste. Changing the General

Mining Law,' the statute which controls private prospecting and

mining activities for metalliferous or hardrock minerals on Federal

public lands, has been an issue before the Congress practically since the law was passed in 1872. But Congress has always proceeded with great deliberation with respect to changing this law.

Some would say that it is well that Congress has been unwilling to take quick action on changing the Mining Law. There is little doubt that the provisions of the law provide an incentive for the exploration and development of the mineral resources of the public lands. Over 500,000,000 acres of public lands are open to prospecting and these include some potentially mineral-rich areas. There is also little doubt that the United States needs minerals to maintain its present high standard of living. There is an intuitive appeal to the proposition that our high standard of living is inextricably tied to incentives for the development of minerals, both energy minerals and hardrock and industrial minerals.

Similarly, the national defense posture of the United States is often cited in support of the need for incentives to assure reliable domestic supplies of minerals. Following World War II, ready access to the public lands encouraged the discovery of uranium reserves that were needed to build the atomic warhead stockpile. A restrictive policy regarding access to the public lands, the argument goes, would work against a strong national defense posture. If there is merit to these arguments, then perhaps Congress has been wise in resisting changes in the 1872 Mining Law.

Despite the past unwillingness of Congress to make major changes in the Mining Law, it appears that Congress is coming close to making some significant changes. Even so, Congress is moving more slowly than some had expected it would. In a series of articles on the mining law in the St. Louis Post Dispatch in December, 1971, William K. Wyant, Jr. said, "High noon is approaching for the 1872 mining law, which has contributed richly to the mining industry, created a few millionaires and many paupers, and enlivened the legends of the Old West. The shoot-out in Congress will be next year."

The 1972 session of Congress is now history, and there was no *Executive Director, New England Natural Resources Center, Boston, Massachusetts.

1. 30 U.S.C. §22 (1964).

CHANGING AN ANACHRONISM

July 19731 shoot-out, although there were some initial tryouts for the big shoot-out. The 93rd Congress, on the other hand, may well see some changes in the mining law.

There have, of course, been some changes since 1872 in the laws concerning public land minerals. The most significant was the passage in 1920 of the Mineral Leasing Act,2 which provided an entirely different system for the development of oil, gas, coal, potash, phosphates, sulphur, and sodium. And other changes, too, have been made, especially to those dealing with conflicts posed by finding minerals developable under both the 1872 and the 1920 Laws on the same tract and by the use of timber and other surface resources on mining claims.

SETTING THE STAGE FOR CHANGE

There has been no lack of proposals over the years for changes in the 1872 General Mining Law. But the process of change that now seems to be underway got its real start with the passage of the 1964 National Wilderness Areas Preservation Act 3 and the establishment of the Public Land Law Review Commission. What to do about the status of the 1872 Mining Law on wilderness areas was one of the tough questions that Congress faced when it gave statutory recognition to some 9 million acres of wilderness on the public lands and assured the establishment of additional wilderness areas over a period of time. Most of the land that was placed in wilderness status had always been open to mining. Mining claims had been filed in many areas, some lands within the outside boundaries of the wilderness areas had been patented and were in private ownership, and active prospecting was going on. Recognizing these facts, Congress vacillated between total and immediate elimination of mining on the one hand, and no prohibiton of mining at all by leaving the wilderness areas it established in the 1964 Act open to prospecting and mining until 1983 on the other. At the same time, it passed legislation to create the Public Land Law Review Commission, 4 whose task it was to review all of the laws, including the mineral laws, that govern the disposal, use, and management of the Federal public lands. Only a thorough review of all of the public land laws and their many interrelationships, it was argued, would provide the kind of foundation that would be necessary to rationalize the existing hodge-podge of policies for the public lands to balance the various kinds of use of these lands.

2. 30 U.S.C. §181 (1964).

3. 16 U.S.C. §§1131-1136 (1964).

4. 43 U.S.C. §1391.

NA TURA L RESOURCES JOURNAL [Vol. 13 The Public Land Law Review Commission, made up of six Senators, six Congressmen, six Presidential appointees, and a chairman, who also happened to be Chairman of the House Interior and Insular Affairs Committee, worked for five years. Its report to the Congress and to the President, presented in June, 1970, proposed major revisions in practically all public land laws and policies. 5 If these recommendations were to be adopted in their entirety, almost every public land law-some three or four thousand of them-would undergo some change. Some of the changes would be dramatic.





Others would simply ratify changes in practice that had been made long ago.

As expected when the Commission was created, the fate of the 1872 General Mining Law was one of the key issues it faced. And it was one of the remarkably few topics on which the carefully constructed agreement on recommendations by the Commission failed to achieve unanimity.

AN ALTERNATIVE TO THE 1872 LAW Shortly before leaving office in January, 1969, Secretary of the Interior Stewart Udall issued a plea to the Public Land Law Review Commission. 6 Calling the 1872 Act "an outright giveaway of vital national resources," he proposed that the Commission recommend substituting a leasing act along the lines of the 1920 Mineral Leasing Act. Congress had made oil, gas, coal, phosphate, potash, sodium, and sulphur subject to leasing in 1920 because the 1872 Law was deemed to be ill suited to development of minerals that were either fugitive, such as oil and gas, or generally found in large bedded formations, such as the others placed under the 1920 Act.

Secretary Udall's proposal was hardly a new one. Bills to place the locatable minerals under the 1920 Act previously had been introduced from time to time. And it was recognized by the Public Land Law Review Commission well before the Udall letter that one of the major alternatives to the location-patent system of the 1872 Law that it would have to consider for locatable minerals was a leasing system.

But Udall's proposal did help to direct attention at this decision and it helped to identify some of the important issues in the Commission's consideration of the 1872 Mining Law. Several provisions of the Law deserve mention.

Ready access to Federal public lands for prospecting and mineral development is the feature of the Mining Law that is most strongly

5. U.S. Public Land Law Review Commission, One Third of the Nation's Land (1970).

6. Letter from Stewart L. Udall, Secretary of the Interior, to the Public Land Law Review Commission, January 15, 1969. For an accompanying analysis of the 1872 Mining Law, see.

Udall, The Mining Law-An Antique in Need of Repeal.

CHANGING AN ANACHRONISM

July 19731 defended by its supporters, and most strongly attacked by its detractors. The tradition of the prospector with a burro roaming the public lands at will in his search for minerals is practically as old as the public domain itself. Combined with other provisions of the Mining Law-the lack of government control over the actions of prospectors and miners on public lands and the possibility of a valuable discovery with no payment to the government for the removal of minerals-ready access to the public lands provided the kind of incentive the mining industry said was necessary to encourage mineral discovery and development. Incentives for the development of minerals where wholly consistent with the early public land laws.

Granting public lands to homesteaders, states and railroad companies and opening the lands to prospecting were all part of a national policy of settlement and development.

While other aspects of this early policy for public lands had been discarded or changed, the use of public lands to encourage mineral development continued. The rationales most often used cite the importance of minerals to the Nation's economy and to national defense. But the ready access of public lands to prospecting has led to other problems in recent years. The ease with which the Mining Law can be subverted by those whose purpose does not involve bona fide mining activities had led to many problems in the administration of the Law. And the free and open entry to the public lands for prospecting results in inevitable conflicts with other uses of the public lands that are gaining in importance as the western United States has become increasingly developed.

The 1920 Mineral Leasing Act differs in important ways from the 1872 Law. It gives the administrator of the public land control in determining which public lands are to be offered for lease. It allows for conditions in leases to assure minimum impacts on other resources and uses. And it provides for royalty payments to' the Federal government and the allocation of leases on the basis of competitive bidding. Many believe the 1920 Act to be a reasonably modem and workable law, while the 1872 Law is believed by many to be a hopelessly inadequate way of meeting today's conditions and a giveaway of valuable resources.

The fact that there was a 1920 Mineral Leasing Act, and that its provisions offer a clear alternative to the provisions of the 1872 Law obscured to an extent some of the issues of public lands mineral policy that faced the Public Land Law Review Commission. Both those who favored and those who opposed major changes in the 1872 Law often seemed to base their pleas to the Commission on the assumption that "the" alternative to the 1872 Law was a leasing system with all the NA TURA L RESO UR CES JO URNA L [Vol. 13 features of the 1920 Leasing Act. This was a confusing element in the Commission's deliberations and has continued to be a confusing element in the debates that have followed publication of the Commission's report. The mining industry was especially troubled by the notion that a leasing system for locatable minerals-any leasing system-would inevitably bring to an end its ready and open access to the public lands.

THE COMMISSION'S RECOMMENDATIONS

In its deliberations, the Commission's approach to the Mining Law was to isolate the various elements of prospecting and mining and to deal with each element on its merits. Thus, whether or not the public lands should be open to prospecting and mining was considered as an issue separate from the kind of payment that should be required or the kind of control that should be exercised over the use of surface resources. In this way, the Commission was able to recommend policies that would lead, if adopted, to substantial changes in the 1872 Law, but without totally scrapping elements of the 1872 Law in favor of the 1920 Mineral Leasing Act.

At the heart of the Commission's recommendation for a new mining law for hardrock minerals was the idea that the public lands should continue to be open to prospecting. Recognizing that prospecting now causes considerable damage to surface resources and to environmental values, the Commission agreed that a permit specifying control measures to be taken by the prospector should be required whenever machinery that would damage the terrain was to be used.

However, the Commission took pains to assure that issuance of such permits be a ministerial, rather than discretionary, function of the land management agency. 7 The traditional free and open access to the public lands for prospecting was to be retained although some limitations were to be placed on what the prospector could do to the surface of the land.

On other elements of an overall policy, the Public Land Law Review Commission leaned more toward the present requirements of the Mineral Leasing Act. Royalties on mineral production and allocation of rights to development on a competitive basis whenever mineral values were known to be present, features that sound very

7. U.S. Public Land Law Review Commission, supra note 5, at 127. In the report, the recommendation was: "Upon receipt of the required notice of location, a permit should be issued to the locator, subject to administrative discretion exercised within strict limits of congressional guidelines, for the protection of surface values. While an administrator should have no discretion to withhold a permit, he should have the authority to vary these restrictions to meet local conditions." The Commission's concern with agency control over prospecting on the public lands is evident.

CHANGING AN ANACHRONISM

July 19731 much like provisions in the Mineral Leasing Act, were proposed. Title to the surface was to remain in Federal ownership, a significant departure from the 1872 Law. Although title to ore bodies would pass to the prospector-miner as long as production continued, title to the minerals would revert to the Federal government once mining ceased.

And the conditions under which minerals were to be developed once a discovery was made, and under which ownership to the ore body would pass to the prospector, would be spelled out in a development contract between the prospector and the Federal government.



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