WESTERN SKIES - October 27, 2005

*** POTENTIAL CHANGES TO THE 1872 MINING LAW ***

ERIC WHITNEY: The law that allows mining companies to stake claims on National Forests and other public lands, and then privatize those claims for five dollars an acre could be changed by the end of the year. Environmentalists have long complained that the so-called "1872 mining law" makes it far too easy for mining companies to essentially seize public land, and then develop it into huge mines that pay no royalties back to the government on their profits.

Efforts to reform the law stalled under President Clinton, but now California Congressman Richard Pombo has attached a re-write of the mining law to a larger appropriations bill that could pass by the end of the year. We'll get to the specifics of that bill, and hear about an alternative bill, in just a moment.

But first, we'll go over what the one hundred and thirty-three year-old law that's still in effect allows, by visiting with activists who are trying to use it to prevent mining.

[sound of footsteps crunching on the forest floor]

WHITNEY: On a beautiful, sunny, Indian summer day, Amy Jiron takes a little walk in the mountains just west of Denver.

WHITNEY: So, is that Mount Evans right over there?

AMY JIRON: I think that's Bierstadt, actually, yeah. That's I think Bierstadt, and then if we come over here a little bit, we can see Mount Evans [fade under]

WHITNEY: This beautiful meadow, on National Forest land about thirty miles from Denver, is popular with hunters, hikers and ATV riders. Jiron works for the Lyons-based mining watchdog group INFORM. She says many of the people who like to come here may not be aware that much of the forest is subject to privatization and development by mining companies.

JIRON: It's our land, Forest Service land is our land, because we're the taxpayers, and the people of the United States. And that our government allows that land to be utilized in such a way, is wrong, it needs to be fixed.

WHITNEY: Jiron is talking about the 1872 mining law, which allows anyone to lay claim to huge chunks of American public lands, announce plans to mine them, and then buy them outright for five dollars an acre, the same price Congress established back in 1872. Jiron calls that ludicrous.

JIRON: The 1872 mining law really was meant to promote people with pick-axes, on foot who were going to dig small tunnels, and not big, huge mines that are going to have big piles of toxic chemicals and things like that.

WHITNEY: Environmentalists, especially those in western states with lots of public lands, have been trying to change the 1872 mining law for decades. But since they've had no success, activists in six states have now decided to stake some mining claims themselves.

WHITNEY: So what are you doing?

JIRON: This is the southwest corner of one of our claims, which is claim number four [fade under]

WHITNEY: Staking a claim is pretty easy. First, identify on a map a twenty-acre parcel that hasn't already been claimed. Then go out on the land and plant stakes at its corners. File a little paperwork and a hundred and sixty-five dollar fee, and you now have exclusive rights to mine the land. Or, in the case of the environmental groups, to keep anyone else from mining it.

JIRON: To protect twenty acres from being mined for a hundred and sixty-five dollars? It's quite a bit cheaper than what it would cost to buy the land [laughs].

WHITNEY: Actually, according to the law, the green groups could buy all the claims they've staked for only five dollars an acre. But simply filing the claims keeps anyone else from mining the land, so there's really no need to buy it. There's also been a moratorium on the five dollar sales since 1995, when Congress agreed that the law needs to be revised.

Carol Raulston, a spokesperson for the National Mining Association, the industry's trade group, agrees that taxpayers deserve more compensation for lands privatized under the law.

CAROL RAULSTON: I think our view was, it was only fair that that ought to reflect current market values. And also, we'd like to see a lot of that money go to clean up mines that were built before you had mining laws, before you had environmental laws, and there are no existing owners, so they're referred to as abandoned mines. We'd like to see some of that money go to clean up of those sites as well.

WHITNEY: Raulston says the industry is open to a number of ideas about how to more fairly compensate taxpayers for privatizing public lands for mining. California Congressman Richard Pombo, the Republican chair of the House resources committee, just introduced a bill that would charge mining companies a thousand dollars per acre, instead of the current five.

ROGER FLYNN: But in most areas of the west, that is still a paltry amount. Because it doesn't take into account the value of the minerals.

WHITNEY: Roger Flynn is an attorney who runs the Western Mining Action Project, which does legal work for conservation groups, citizens and Native American tribes. He says that beyond paying more for the acreage they privatize, mining companies also need to start paying royalties on the minerals they extract, just like coal and oil and gas companies do.

FLYNN: Billions of dollars have been taken out of the public lands in recent years, by particularly the gold and copper industries. And they've never paid a royalty on that. And of course, the current bill has no royalty provisions whatsoever as well.

WHITNEY: Environmentalists and some tax watchdogs have been lobbying for mining companies to pay royalties for years. The fact that Congressman Pombo's bill does not require royalties is somewhat surprising. Ten years ago, the last time it looked like mining law changes might pass Congress, the mining industry itself agreed to start paying a five percent royalty. That bill never passed.

An alternative mining law reform bill was introduced this month by Democratic Congressman Nick Rahall of West Virginia. It proposes an eight percent royalty. Mining industry spokeswoman Carol Raulston says that would be too much.

RAULSTON: The value of the mineral is set daily on the world market, so no matter where you mine it, you're going to get the same price for it. So if our cost of producing it gets far above our competitors' internationally, then you're going to see the United States becoming much more reliant on international sources for these whole range of metals that have broad application throughout our economy.

WHITNEY: But for environmentalists, all the talk about royalties and a fair price for privatizing public lands for mining, needs to come after a more fundamental reform: that of giving federal land managers the same power to evaluate and then approve or deny mining that they have for other industry proposals, like logging and the extraction of gas and oil. Right now, only the mining industry has the power to privatize, or "patent" public lands where they find resources. Roger Flynn.

FLYNN: If a patent is being applied for, the land transfer, the land sale, there's no environmental requirements, no public review whatsoever. In fact the federal courts have said that citizens can't even challenge a patent. So all a company has to do is file a mining claim, show they have valuable minerals there, pay five dollars an acre, and the land is theirs. So there's no environmental or public requirements at all for purchase of the land.

WHITNEY: Flynn says that Congressman Pombo's bill would make the current law even worse, by removing the requirement that mining companies have to prove that there are valuable minerals on their claims. He says that leaves the patenting process even more open to abuse.

FLYNN: And here in Colorado for example, there are many examples of ski resorts, condominium developments, resort developments occurring on recently patented, in the last couple of decades, patented lands under the 1872 mining law. So there were no environmental reviews or public reviews regarding that land transfer, so the mining companies had the patent, they got the patent from the federal government, they own the land, and then they sold it for real estate development. No public review whatsoever.

WHITNEY: Flynn is also suspicious of Congressman Pombo's tactic of attaching his proposed changes to the mining law to an appropriations bill, which means that Congress wouldn't have to hold hearings on the topic. Mining industry spokeswoman Carol Raulston says she's not familiar with the specifics of Congressman Pombo's bill; but, she says, there have been hearings in western communities affected by mining laws in recent years. And she thinks Pombo's bill is based on what the public said then.

RAULSTON: What they're trying to do is respond to the community concerns that they heard when they held the field hearings. And find a way to provide fair market value to the government for the use of the lands. And then use the patenting process so that mining companies can work with local communities to see that those sites weave more directly into the economic future of the community.

WHITNEY: Congressman Pombo's proposed changes to the 1872 mining law are currently before the House resources committee, which he chairs. Congressman Rahall's alternative bill was introduced October eighth. It's being co-sponsored by Republican Chris Shays of Connecticut; but, given that Pombo has tremendous influence over whether the Rahall bill will even be heard, its chances of passing Congress anytime soon are very slim.