A Legalized Assault on Public Lands

An antiquated law signed by President Grant in 1872 still gives mining companies power over federally administered lands while leaving waste cleanup to taxpayers

• Roger Di Silvestro
• Apr 01, 2008

PERU CREEK, a mountain stream in Summit County, Colorado, flows into the Snake River, which in turns flows into Dillon Reservoir, a principal source of Denver's drinking water. Mining began around Peru Creek in 1879 and continued into the 1940s, taking out silver, gold, copper, zinc and lead. Although 80 percent of the Peru Creek basin lies within White River National Forest, says local conservationist Sharon Lance, the creek is "basically a dead stream" that ran milky white last autumn. Because of the mining pollution, fish no longer live there. The state stocks game fish, but they never survive more than three weeks, says Lance, who is leading the Snake River Watershed Foundation, a citizen project seeking to assume legal responsibility for cleaning up the site. "It'll be a landmark project," she says, the nation's first mining cleanup run by volunteers. The foundation is working with 20 state agencies as well as the federal Environmental Protection Agency (EPA) to develop a method for cleaning up Peru Creek.

Meanwhile, in western Idaho's Boise National Forest, a similar situation turns up along Mores Creek, the last undammed tributary of the Boise River. The creek is home to bull trout and other native fish species and is stocked with fish by the Idaho Fish and Game Department. Nevertheless, says Pam Smolczynski, a local conservation activist, "Nobody goes up there to fish. What's hurting the fishing is mining, and it's a shame."

In the 1950s, a mining company dredged the creek in quest of gold. As a result, the streambed was overturned, and the stream banks became piles of mine tailings, or waste rock. Fishing in Mores Creek is all but impossible without natural stream structures, such as pools. But because the waste is not toxic, Mores Creek does not qualify as a Superfund site requiring EPA cleanup. The mining company that operated the mine is not accountable either, half a century and more after the dredging. Cleanup depends on a joint effort, led by Smolczynski in partnership with various conservation groups and with various state agencies, to plant vegetation, create pools and restore more natural conditions. Restoration is critical to the nearby town of Idaho City, which depends economically on recreational activities such as fishing. "They'll stand to gain when we fix this," Smolczynski says.

Few commercial activities are as deadly to fish and their habitat as is mining. "The heart of the problem is the federal law that sets the standard for mining on public land," says John Gale, NWF's Rocky Mountains regional representative. "The law is hopelessly out of date."

The Mining Act dates to 1872, when Ulysses S. Grant was president and the federal government was creating incentives for people to settle the West. A lot has changed in the West since then, but not mining on public land nor the law that governs it.

The 1872 law mandates that mining be given precedence over all other uses on federal public land. As a result, land managers cannot balance mining with, for example, wildlife needs. Under the act, when a company or individual wants to stake a claim on federally administered public land, the government must grant the claim, for a fee not to exceed $5 per acre, the rate set by the law 136 years ago. Once the land is patented--formally claimed or registered--the patent holder can resell it for any price. If the land is mined, the miner pays only $100 a year to the federal government. This arrangement stands in sharp contrast with the 12.5 percent royalty that oil companies pay for drilling on public land. If hardrock miners paid the same royalty, they would have shelled out more than $40 billion dollars to the U.S. Treasury by now just for silver, gold and copper, to say nothing of royalties on other minerals, such as molybdenum and uranium. Lack of a royalty on public land minerals means that tax dollars will have to be used to fund cleanup.

Hardrock mining often imperils fish and fish habitat because in many parts of the West, mineral ores are rich in sulfides. When mining puts the ore into contact with water, the result is acid runoff that pollutes streams. Moreover, some types of mining treat ore with toxic chemicals, like cyanide, to leach out minerals such as gold and silver, creating massive amounts of toxic waste, which can leak out of containment areas.

The worst cyanide spill in U.S. history occurred at the Summitville Mine in south-central Colorado. First opened in 1870, the mine was run in the 1980s by Summitville Consolidated Mining Company, Inc., a subsidiary of Galactic Resources Ltd. Between 1984 and 1991, the operation built up a 160-million-gallon pool of liquid toxic waste. After the mine was abandoned in the early 1990s, waste leakage reached about 3,000 gallons a minute, killing all aquatic life in a 17-mile-stretch of the Alamosa River. Galactic Resources declared bankruptcy in December 1992 and turned Summitville over to the EPA for a $155 million cleanup. Galactic paid only $30 million of cleanup costs.

Such mine sites and the cost of their clean up represent a miniscule part of a huge problem. During the first quarter of 2007, mining claims covered more than 7.2 million acres of federally administered public land. Some 500,000 abandoned mines lie scattered across the nation. EPA figures indicate that mining in western watersheds has polluted 40 percent of streams near headwaters, requiring a cleanup that will cost as much as $50 billion.

"We do have a chance to make the 1872 law a more modern instrument for protecting land and for establishing funds for cleanup," Gale says. Last fall, the U.S. House of Representatives passed a new mining bill that requires hardrock miners to pay a gross royalty of 4 percent on existing mines and 8 percent on future mines on public land. It also provides protections for wildlife and streams and allows the secretary of the Interior to turn down proposed mines that would irreparably damage natural resources.

The future of mining reform is now in the hands of the Senate. A mining executive, Patrick Garver, said on a mining-industry website that of the many efforts at mining reform during the past 15 years, "none of them have ultimately succeeded." He added that members of the industry "at this point in time, are not all that anxious" that the Senate will update the law.

However, hunters and anglers are stepping up to the plate to help with the current attempt at reform. NWF, the Theodore Roosevelt Conservation Partnership and Trout Unlimited have formed a partnership, Sportsmen United for Sensible Mining, to help guide outdoor sports enthusiasts in the effort to reform the law. Only time will tell how successful such measures will prove. "I think there is a good chance that the Senate will enact mining reform this year," Gale says. "It will depend on whether senators hear mainly from the mining companies, which want to protect the status quo, or from constituents who want changes that protect natural resources and our investment in future generations."

Roger Di Silvestro is a National Wildlife senior editor.



You Can Help

For more information on mining reform activities and related issues, visit www.sensiblemining.org, the website of Sportsmen United for Sensible Mining, a coalition formed by NWF, the Theodore Roosevelt Conservation Partnership and Trout Unlimited.