Guest editorial: An antiquated law rules mining in the West

Can the U.S. finally vanquish one of the most enduring Lords of Yesterday?

Johnathan Thompson High Country News
Most of the claims on this map were part of the Idarado Mine Colorado Superfund cleanup in the 1990s.
High Country News/The Barry Lawrence Ruderman Map Collection/Stanford University Libraries

In October 2022, Canada-based Atomic Minerals Corporation announced it had “acquired by staking” more than 6,500 acres of public land on Harts Point in southeastern Utah, a sandstone mesa just outside Bears Ears National Monument that’s bordered on one side by Indian Creek, a popular rock-climbing area. The company’s word choice was a bit off: It didn’t actually acquire the land, it merely secured the right to exploit it: to mine it by locating — or staking — 324 lode claims. 

Atomic Minerals didn’t need to get a permit from regulators or inform the public in order to do this. Nor did it have to consult with the tribal nations that had unsuccessfully urged the Obama administration to include Harts Point in Bears Ears. Nope; the uranium mining company’s American subsidiary merely needed to file the locations with the Bureau of Land Management and pay $225 per claim in processing, filing and maintenance fees. The BLM then gave the company the preliminary go-ahead to do exploratory drilling on the land, once again without public notice or rigorous review.

If the corporation decides to go forward with mining, the proposal will become subject to environmental analysis. But once it obtains the relevant permits, Atomic Minerals is free to ravage Harts Point and yank uranium and other minerals belonging to all Americans out of the ground, without paying a cent in royalties.

If this sounds like a scenario right out of the 19th century, that’s because it is. Hardrock mineral exploration on public lands is governed by the General Mining Law of 1872, which makes “all valuable mineral deposits” in public lands “free and open to exploration.” The law hasn’t fundamentally changed in 151 years, making it one of the most persistent of what the late scholar Charles Wilkinson dubbed the “Lords of Yesterday,” the old and obsolete laws governing natural resource use and extraction.

The law hasn’t fundamentally changed in 151 years, making it one of the most persistent of what the late scholar Charles Wilkinson dubbed the “Lords of Yesterday.”

Over the past couple of years, companies have staked a slew of new claims on public lands. The current land rush mirrors that of the late 1800s, when corporations used the law to profit from places like the Red Mountain region of Colorado, where the mining legacy lives on in the form of tainted water and torn-up landscapes. Only this time, they’re going after more than gold and silver; they also want the so-called “green metals” — the lithium, cobalt, copper and rare earth elements used in electric vehicles and other clean energy applications. At the same time, a recent push to start building advanced nuclear reactors appears to be rousing the domestic uranium mining industry from its decades-long slumber. 

That, in turn, has sparked a new push from lawmakers, environmentalists and the Biden administration to finally bring federal mining law into the 21st century. But can this Lord of Yesterday really be deposed? Or will corporate greed, profit and political inertia once again use their influence and money to prop up this rusty old framework?

Prospectors flocked to the Red Mountain Mining District in the San Juan Mountains of Colorado in the 1880s and 1890s, staking claims on the iron-rich red-orange slopes that give the place its name.

The only thing a claimant needed was evidence that some minerals were present and the willingness to do $100 worth of work annually. Today, claimants merely have to pay an annual maintenance fee of $165 per claim in order to keep it active.

Most of these were 10-acre lode claims that follow a mineral vein. A few larger placer claims can also be seen on this map; they were usually staked along riverbeds for extracting minerals from gravel or sand. Scattered amid the chaos are also smaller mill sites, which are claims on non-mineral lands used to build mills or dispose of tailings.

The typical claimant back then was an individual, like Olaf Arvid Nelson, who staked the Gold King claim over the hill from here in 1887. (It was the site of a notorious disaster in 2015.) Claimants then usually leased or sold their claims to corporations or investors with resources to develop the mine.

Then, as now, corporations could pull unlimited quantities of minerals from their claims without paying a cent of royalties to the minerals’ actual owner — the American public. This amounts to a subsidy of hundreds of millions of dollars per year, mostly to multinational corporations. No one knows exactly how much, because no one keeps track of mineral production from federal lands.

The 1872 General Mining Law allows claimants to patent, or acquire, clear title to their claims, for a paltry fee just five years after staking it. This provision encouraged the privatization of thousands of acres of public lands, resulting in a chaotic land-ownership pattern — and headaches for local officials — in former mining zones like Red Mountain.

Then, in 1994, Congress put a moratorium on all new land patents. But it did so without changing the law itself, meaning that lawmakers must renew the moratorium on a yearly basis. Meanwhile, companies continue to stake and mine un-patented claims under the 151-year-old law.

The General Mining Law of 1872 contains no environmental provisions and no reclamation requirements, so corporations can simply walk away from their mines once they’re no longer profitable. Hundreds of thousands of legacy mining sites now dot the Western U.S.; many of them have never been cleaned up and continue to spew acid mine drainage into streams.

Mining law by the numbers

11.36 million
Acres of public land staked with active mining claims at the end of the 2022 fiscal year. This is a 932,000-acre increase from the previous year. 

Number of active mining claims covering nearly 6 million acres of federal land in Nevada at the end of FY 2021.

Number of active mining claims on federal land in Nevada as of June 12, 2023, an increase of nearly 40,000 in just 18 months.

Minimum number of active mining claims staked within Bears Ears National Monument since 2016. These claims were located either in the months just before the national monument was established, or after it had been shrunk by then-President Donald Trump but before President Joe Biden restored the boundaries. National monument status bars new mining claims, but does not affect existing ones like these.

$34.4 billion
Value of non-fuel mineral production in 2019 on all lands in 12 Western states.

Amount of that mineral production extracted from federal lands. The number is unknown because federal agencies do not track production. Earthworks, a mining watchdog group, has estimated that $2 billion to $3 billion worth of minerals is extracted from public lands annually.

12.5% to 18.75%
Royalty rate on oil, natural gas and coal extracted from public lands.

$14.8 billion
Royalties paid on oil and gas production from federal lands in 2022.

Royalties paid on hardrock minerals extracted from mining claims on public land, including copper, gold, silver, lithium, uranium and various “green metals,” between 1872 and 2023.

SOURCES: Bureau of Land Management, Government Accountability Office, Congressional Research Service, Earthworks, Center for American Progress

Jonathan Thompson is a contributing editor at High Country News and the author of Sagebrush Empire: How a Remote Utah County Became the Battlefront of American Public Lands. This article is republished with permission from High Country News.


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