The Definition of a Special Interest Giveaway

Imagine that you own a commercial building in a city that has very peculiar ideas about how you should manage the property.

The local code requires the following: You must rent your space to all comers. But you can’t charge rent. And tenants must be given ownership of the rented space for a nominal fee of $5 if they want it.

Not a good business model. In fact, any local government that tried to enforce such an ordinance would face an insurrection, not to mention a swift defeat in court.

Not to worry. The scenario is so ridiculous that it’s safe to say that no city council, board of selectmen, or township commission anywhere in America would approve such an absurdity.

Of course, Congress is an entirely different story. The 1872 Mining Law, an antique as obsolete as hoop skirts and starched collars, remains on the federal statute books. The law is an affront to property rights on a mass scale, since all of us own the public lands subject to the law’s remit.

Unearthing a Better Mining Law Every so often, Congress takes a stab at modernizing this relic. The latest is HR 2262, the Hardrock Mining and Reclamation Act. The bill would require payment of mineral royalties, end privatization of mining claims, and set environmental standards for mine operations and post-mining cleanup, including financial assurance for maintaining water pollution treatment systems that may need tending for generations.

The legislation is headed for a vote on the House floor this week, but its fate is uncertain. Harry Reid, friendly to the mining industry, runs the Senate. Confused Republicans who conflate special interest giveaways with conservative public policy are fighting the legislation.

How bad is the 1872 Mining Law? Pretty bad.

The law gives mining of hardrock minerals -- gold, silver, copper, and the like -- first call on 350 million acres of the federal estate. Drinking water, wildlife, hunting, fishing, and ranching play second fiddle. The city of Boise, Idaho, for example, is worried about a proposed cyanide leach gold mine near the headwaters of the Boise River, source of 20% of the city’s drinking water.

Unlike oil, gas, and coal, hardrock minerals can be taken from public lands without payment of royalty. About $1 billion worth of such minerals are taken each year from public lands. The total value of minerals mined from the federal estate since the law’s enactment totals nearly a quarter trillion dollars.

But Wait! There's More Mining claims on public lands can be transferred to private ownership, or “patented,” for the princely sums of $2.50 to $5 per acre. Since the law was enacted, about 3.7 million acres -- an area about the size of Connecticut -- have been patented.

The law says nothing about protecting the environment or cleaning up mine sites. While mines are subject to the Clean Water Act, other federal environmental statutes, and cleanup financial assurance requirements, there are questions about the adequacy of such assurances.

Mining can result in acid mine drainage that is highly toxic, and can be devilishly hard and expensive to clean up. A 2004 EPA Inspector General’s report said that water treatment systems to control acid mine drainage from big mine sites will, in some cases, have to be maintained in perpetuity. "We question the ability of business to sustain efforts for such lengths of time," the report notes.

Mining is a critical industry. As a mining bumper sticker likes to say, if it can’t be grown, it has to be mined. Still, indispensability does not excuse any industry for taking responsibility for its impacts and paying its own way.

The clock needs to run out on the 1872 Mining Law, and at the very least, it’s time for mines on the federal estate to start paying rent to the landlords.