Capitol Hill Debate Begins on Mining Reform

by Dick Kamp
Wick Communications Environmental Liaison
©Wick Communications

Washington , DC : On July 26, the House Subcommittee on Energy and Natural Resources held its first Capitol Hill hearing in nearly 13 years on a bill (HR 2262) to reform the 1872 Mining Act (1872). Graphic portraits of environmental devastation were met by predictions of unemployment.

1872 has been interpreted by Federal land managers for 135 years as requiring that all mine permits be approved, if mitigated by whatever state and Federal laws would affect its regulation. Among others, statutes include all Federal environmental laws as well as the Historic Preservation Act. Mining is interpreted as the “highest and best use” of public lands.

Bush administration Bureau of Land Management subsecretary Henri Bisson dismissed HR 2262 as “harmful to the mining industry”. Clinton Department of Interior Solicitor John Leshy spoke of a law “applicable to an area…about the size of California…supporting a dirty and disruptive business that involves cyanide and mercury with great effects on wildlife…we’re the only place on this planet where the owners of the land, the public, are not paid a royalty.”

As in 1987 when 1872 was first introduced, and in 1994 when a similar bill overwhelmingly passed the House of Representatives for a second time, HR 2262 was introduced by Congressman Nick Rahall of West Virginia in May. During the 12 years of Republican domination of the House, bills were introduced by Rahall—however the majority party refused to hold a hearing on them.

Although often polarized, testimony brought out the nature of compromises needed to guide reform through a historically less-supportive Senate, probably during 2008 according to most sources. Mining reform will have to satisfy Senate mining advocates including Majority Leader Harry Reid (D-Nv), as well as former leader of a rural anti-environmental rebellion, Senator Larry Craig (R-Id,) who spoke on Thursday as if he represented Reid.

House Subcommittee on Public Lands Chairman Raul Grijalva (D-Az), said that he represents a large mining district and “strongly supports the bill.” During witness questioning Grijalva said that Congress must address “207,000 active claims in 2005 with $245 billion value of minerals extracted, $0 amt of royalties collected, half a million abandoned hardrock mines in the country with a $32 billion cleanup bill, plus taxpayers having had to pay hundreds of millions to buy back public lands that were patented under this law.”

HR 2262 requires that any new mines that have not received an approved mining plan prior to passage be subject to its provisions. Active mines that have been approved with a ‘record of decision’ would have 5 years to operate under the old law.

Certain areas are designated as “special places”, off limits to mining, that include proposed Wilderness or roadless areas and Wild and Scenic Rivers. For other Federal lands, there are a number of specific burdens of proof that an applicant must meet to provide environmental or public lands officials’ reason to determine that environmental protection would be adequate. These requirements go well beyond current requirements to be in compliance with state and federal laws, and can explicitly result in denial of approval to mine.

A mining permit can be denied if it is demonstrated that a mine can disturb local hydrology, including groundwater overpumping. A proposed mine must “ demonstrate that impacts to human health, water resources, wildlife habitat, and other natural resources will not cause undue degradation.” Citizen suits are permitted to challenge the legality of permits.

“Patenting “of mining lands to make them unregulated private property for a cost of $2.50-$5 an acre would end permanently (there has been a moratorium since 1994). A substantial royalty would be imposed on minerals mined from the land. Money from the royalties would be utilized to reclaim old mining on federal lands, among other uses and assist mining communities. New reclamation and financial responsibility requirements would be imposed.

Under the current law, a mine with a plan of operation can operate indefinitely. Under HR 2262, permits would last 10 years, subject to renewal and approval of a new plan.

When the bill was introduced, Freeport McMoran president Tim Snider said that his greatest concern with mining reform was that, “one person would be able to make a subjective decision to deny a mine.” Environmentalists argue that the new proposed criteria would avoid that.

William Champion, CEO of British/Australian-owned Kennecott Copper addressed the need for “more flexible, market-based royalties” than the bill proposed. The percentages of royalties to be paid on the basis of gross or net profits is likely to be the largest point of debate. He also argued that an approved mine should have “tenure”—control over the land not for 10 years but for the entire time of exploration, mining, and reclamation and any cleanup.

Michael Marchand, Chairman, representing Confederated Tribes of the Colville Reservation, said that 1891 Congressional agreements to provide protection to tribal lands that had belonged to 12 Washington tribes had been completely ignored in 1872 mining decisions. Marchand added, “HR 2262 lacks any substantial detailed tribal rights safeguards….we will offer suggestions.”

Two witnesses suggested that uranium mining should be removed from the Mining Act, due to its major impacts on environment and health, and instead leased on public lands like other energy resources such as oil and gas.

Pearce, South Dakota sportsman radio host Tony Dean described recent trout fishing in that state on a stream destroyed by Homestake Gold mines on public lands in the 1970s. “Only after former Governor Bill Janklow led a campaign to sue Homestake was the stream cleaned up. We need a law that allows the Federal government to prevent that from happening.”

Environmental Working Group policy analyst Dustin Horwitt presented maps of 205 uranium claims filed since 2003 within 5 miles of the Grand Canyon, “driven by China and India’s need for uranium.” Horwitt also showed maps with 864 post-2003 mining claims filed in a similar radius near Arches National Park, 233 near Canyonlands NP, both in Utah; 83 claims are near Yosemite NP.

Subcommittee Chairman Jim Costa (D-Ca) asked mining industry witnesses to respond in writing to recent studies showing that nearly ¾ of mines approved in recent years on Federal lands following environmental assessments failed to meet EPA water quality standards.

Frustration with the pace of mining reform legislation has led legislators such as Grijalva and fellow Representative Gabrielle Giffords (D-Az) to propose legislation that would withdraw Forest Service land in Arizona threatened by proposed mines from all future mining. The All-Indian Pueblo Council of northern New Mexico has proposed similar actions to halt uranium mining exploration on sacred lands in that area.