On May 10, 1872, U.S. Sen. William Stewart of Nevada, a mining lawyer and mine owner, got something called the General Mining Law enacted by Congress. The law was a product of the corrupt Congresses that marked what Charles Warner and Mark Twain called the Gilded Age.
This law still governs mining on the public's land in the United States, which makes it central to the economy of Nevada's small counties. A mention of it to anyone who knows about mining will produce strong reactions. The mining industry regards it as Holy Scripture. Critics like former U.S. Sen. Dale Bumpers of Arkansas call it a license to steal.
John Kerry and George Bush stand in similar opposing postures.
The law allows the industry to claim and mine minerals on the public's land at rock-bottom rates. A patenting provision transfers the land itself for the 1872 price – $2.50 to $5 an acre. No royalties are required on the ore mined, which can include (in Nevada) copper, silver, and gold and (in other states) platinum.
During the Clinton administration, Interior Secretary Bruce Babbitt broke his pick trying to change the law. Each year, he announced a particularly egregious example of the law's workings. In 1995, for instance, it was mineral deposits valued at nearly $3 billion that cost ASARCO Inc. $1,745 to obtain with no royalties to the public. The copper and silver deposits were located on 347 acres in the Coronado National Forest.
Authors Mark Zepezauer and Arthur Naiman wrote in 1996, "A Canadian mining company called American Barrick is in the process of extracting more than $10 billion in gold – $8.75 billion so far – from land in Nevada it paid $5,190 for. The Chevron and Manville corporations hope to lay their hands on about $4 billion worth of platinum and palladium; to patent the Montana acre where the minerals are found, they'll pay about $10,000."
Proponents of the law like to portray it as helping the traditional bewhiskered miner with a burro and a pick – but they also oppose efforts to limit the benefits of the law to small independent miners.
Nevada Mining Association Director Russ Fields says, "The General Mining Law of 1872 has served the nation well as a means for miners to gain access to public lands for the purpose of developing minerals. It has been amended many times over the years as new requirements for developing minerals were identified by Congress."
Fields says the mining law has allowed the creation of thousands of mining jobs, and while the mining industry agrees that some change might be good, it's not entirely the industry's fault it hasn't happened.
"Over many years, decades, in fact, the Congress has worked on various approaches to changing the mining law – called reform," he said. "The mining industry agrees there are issues that should be reformed or added, including addressing the patenting process, a form of royalty, and funding for mitigating historic abandoned mine sites, to name a few. While changes including the foregoing have nearly occurred more than once, the law itself has not changed much during these years due to significant differences of opinion in what constitutes responsible reform. Meanwhile regulations, including holding fees and those governing environmental protection, have changed and continue to change."
Fields also says the 1872 act is a mining law, not an environmental law, and the two should not be confused.
The "patent" provisions have been under a moratorium since 1994, so the transfer of land from public to private hands has been slowed.
In Nevada, the General Mining Law of 1872 was considered sacrosanct in the days when the state's population was small and the mining industry dominated. Today, the state is one of the nation's most urban (more than 90 percent live in two metropolitan areas), and there are many who consider the law sacrilegious. In Nevada today, there are groups like Great Basin Mine Watch that support reform of the law, something that would have been unheard of in the old days. And for taxpayer groups, changes in the law represent a rich lode of royalties.
During Kerry's Senate career, he has repeatedly voted for changes in the law, and as a presidential candidate he has said he wants the changes in order to raise money to pay for national parks. In fact, he does not call it mining law reform; he calls it a parks plan: "Instead of allowing the archaic 1872 Mining Law to continue to distort the minerals market and cause environmental destruction of public lands, a Kerry-Edwards administration will modernize the sale of mineral rights and use the revenue generated to increase the operations budget of our national parks."
Kerry made that pledge a centerpiece of his photo-op at the Grand Canyon on Aug. 9.
Bush launched an effort in 2002 to change the old law, but it came to little, and it didn't represent dramatic change in the law's provisions. In other ways, he has been supportive of the mining industry's stance of using the law – including one case very familiar to residents of the Truckee Meadows.
Local residents who organized a grassroots campaign against a cat litter plant northeast of Reno and were making headway in winning the support of local officials were jolted when the Bush administration stepped in, telling county officials they had no authority to deny permits for the plant because the 1872 law prevents local communities from stopping mining. That dispute was later cited by U.S. Rep. Nick Rahall of West Virginia, sponsor of changes in the law, in remarks on the House floor last year.
In another dispute, the Clinton administration had delayed an open-pit gold mine proposal by a Canadian corporation in Imperial County, Calif., because it was located in a delicate environmental site that was also a center of religious, cultural and historical resources for the Quechan tribe. The Bush administration reversed that finding.
Tracey Schmitt, a western regional spokesperson for candidate Bush, says, "President Bush opposes John Kerry's job-killing tax on America's mining industry. Kerry's policy would have a devastating impact on Nevada's economy and is one more reason he is wrong for the state."