EARTHWORKS

A Mining Law Whose Time Has Passed

19th century law kills fish, pollutes special places

The New York Times | Robert M. Hughes and Carol Ann Woody

January 11, 2012
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IN 1872, President Ulysses S. Grant signed a mining law to spur the development of the West by giving hard-rock mining precedence over other uses of federal land. But the law has long since outlived its purpose, and its environmental consequences have been severe.

Mining claims for copper, gold, uranium and other minerals cover millions of those acres, and the law, now 140 years old, makes it nearly impossible to block extraction, no matter how serious the potential consequences. Soaring metal prices are now driving new mine proposals across the West.

Oregon’s Chetco River is one example. The river’s gin-clear waters teem with wild trout and salmon, including giant Chinook salmon tipping scales at more than 60 pounds. In 1988, Congress designated the Chetco a national wild and scenic river “to be protected for the benefit of present and future generations.”

But the river is now threatened by proposals to mine gold along almost half of its approximately 55-mile length. Suction dredges would vacuum up the river bottom searching for gold, muddying water and disrupting clean gravel that salmon need to spawn. Despite the Chetco’s rich fishery and status as a wild and scenic river, the United States Forest Service is virtually powerless to stop the mining because of the 1872 law.

As Michael P. Dombeck, a former chief of the Forest Service, explained to a Senate committee in 2008, “it is nearly impossible to prohibit mining under the current framework of the 1872 mining law, no matter how serious the impacts might be.”

Under the law, mining companies — not the government — decide whether and where to file their claims on public land. (National parks, monuments and wilderness areas are excluded.) Federal agencies review the plans, but they are approved as a matter of course. Mining companies pledge to protect rivers threatened by their operations. But the industry’s track record hardly inspires confidence.

The Environmental Protection Agency estimates that headwater streams in 40 percent of Western watersheds are polluted by mining. A scientific review in 2006 of 25 modern Western mines by the environmental group Earthworks found that more than three-fourths resulted in water contamination. Over all, the E.P.A. has estimated that it will cost $20 billion to $54 billion to clean up abandoned mine sites.

As fisheries scientists, we are deeply concerned about the impact mining has had on our nation’s dwindling fisheries and the inadequacy of the 1872 law to regulate modern mining. In contrast to the pick-and-shovel operations of a century ago, most modern mines are large-scale operations that use toxic chemicals to extract metals from the ore, and they generate vast amounts of mine waste. After these mines close, treating the polluted water in perpetuity is often necessary.

At Oregon’s Formosa mine, for instance, toxic metal-laden drainage from mines is contaminating 18 miles of prime salmon habitat. In Montana, the Zortman Landusky Mine has polluted a dozen streams with arsenic, selenium and other harmful metals. The acidic runoff will continue for centuries.

Last year, the Kensington mine in Alaska was permitted to dispose of toxic mine waste directly into a freshwater lake, decimating its native fish population. The Rock Creek and Montanore mines are proposing to tunnel under the Cabinet Mountains Wilderness in Montana. Scientists predict that these mines will deplete flows in wilderness streams, including essential habitat for the region’s threatened bull trout.

At the request of members of the Oregon Congressional delegation, the Forest Service proposed to withdraw a portion of the Chetco River temporarily from the jurisdiction of the 1872 mining law while seeking additional protection. This type of stopgap effort highlights the need for a comprehensive overhaul of the archaic law.

In a 2010 paper published in the journal Fisheries, we recommended important mining policy changes. Federal land managers must have discretion to balance mining with other land uses, and say “no” to mine proposals when necessary. No mines should be approved that can result in perpetual water pollution. There should be clear environmental standards, requirements to restore fish and wildlife habitat to pre-mining conditions and sufficient reclamation bonds to cover the full cost of cleanup. A dedicated source of funding should be established to pay for cleanup of the thousands of abandoned mines that continue to pollute our streams.

The mining industry has powerful friends in Washington, however, and nothing has come of our proposals or of other reform efforts. Now Representative Edward J. Markey, Democrat of Massachusetts, is pushing a measure that would require mining companies to pay a royalty equal to what other industries have been paying for decades, provide safeguards for clean water and give communities and agencies a say about where mining is permitted.

The bill merits broad bipartisan support. It is unwise to let this 140-year-old law continue to operate at the expense of clean water, healthy fisheries, public lands and taxpayer dollars. America’s mining law must be brought into the 21st century.

Robert M. Hughes and Carol Ann Woody are fisheries scientists based in Corvallis, Ore., and Anchorage, respectively.

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For more information:

Resources mentioned above:

• Earthworks Comparison of Predicted and Actual Water Quality at Hardrock Mines
• Earthworks Predicting Water Quality Problems at Hardrock Mines—an EARTHWORKS white paper

Tagged with: rock creek mine, public lands, montana, mining, markey, kensington mine, gold mining, fisheries scientists, chetco river, cabinet mountains wilderness, alaska, 1872 mining law