Grist Magazine
Novemmber 17, 2005


Mining-law revamp could put millions of public acres up for sale

By Amanda Griscom Little

Greens beamed and GOP leaders bristled last week after language paving
the way for oil drilling in the Arctic National Wildlife Refuge and on
the Outer Continental Shelf was stricken from the House budget
reconciliation bill. But many Democrats and enviros are now sounding
the alarm over another provision in the bill, one that's stirred up
far less of a public ruckus but is "every bit as bad as drilling in
the Arctic," said Dusty Horwitt, senior policy analyst for the
Environmental Working Group.

Things could get prickly for cacti in Joshua Tree National Park if
Pombo has his way.The brainchild of Rep. Richard Pombo (R-Calif.),
chair of the House Resources Committee, and Rep. Jim Gibbons (R-Nev.),
this provision calls for a historic shift in American mining law,
which has remained largely unchanged since the passage of the 1872
Mining Act. Enviros and fiscal conservatives in both major parties
have been calling for mining reform for years, but Pombo's proposal
isn't quite what they had in mind.

It would allow the Interior Department to sell tens of millions of
acres of public lands in the American West -- including more than 2
million acres inside or within a few miles of national parks, wildlife
refuges, and wilderness areas -- to international mining companies,
oil and gas prospectors, real-estate developers, and, well, anyone
else who's interested. The stated aim is to generate an estimated $158
million in revenue over the next five years to help curb the monstrous
federal deficit.

"To our knowledge, it represents the largest land giveaway in modern
American history," said Horwitt. Rep. Nick J. Rahall (D-W.Va.),
ranking member of the House Resources Committee, called Pombo's
proposal "a raid on America's public lands and our natural resources
heritage of almost unparalleled proportions."

Pombo's office did not respond to Muckraker's requests for comment,
nor did the California rep release any public statements on the
provision, which was slipped into the budget bill three weeks ago --
much to the surprise of enviros. According to The Washington Post,
Pombo claimed his proposal would reduce the deficit and encourage
private ownership. "In some states primarily owned by the federal
government, it's important that more of that land become private
property," he told the Post. "These environmental groups want the
federal government to own everything."

Chagrins and Minerals

Up until a decade ago, the General Mining Law of 1872, signed into law
by Ulysses S. Grant, allowed private companies to "patent" (i.e.,
purchase) federal land with proven mineral resources for between $2.50
and $5 an acre -- 19th-century prices that industry has used all of
its lobbying might to hang on to. Then, in 1994, Congress instituted a
moratorium on such sales, saying prospectors could no longer file new
patents that would give them outright ownership of federal lands;
rather, they now pay nominal annual fees for the rights to extract
minerals, but the lands stay in public hands and therefore extraction
projects are subject to environmental reviews.

"The 1994 moratorium has always been seen as an extremely inadequate
placeholder solution," said Dave Alberswerth, senior policy adviser at
The Wilderness Society.

Under Rahall's leadership, a bipartisan coalition of representatives
has been working to draft a total overhaul of the archaic mining
statute that would not only make permanent the moratorium on new
patents, but also force mining companies to pay royalties to the feds
-- just as oil and gas firms and other extractive industries do.

Pombo's provision, by contrast, would rehabilitate the right to buy
land outright, allowing private parties to acquire federal lands for
as little as $1,000 an acre or for the "surface value" of the
property, whichever is greater. Prices wouldn't factor in the value of
the minerals below the surface, nor would buyers have to pay royalties
to the government on the resources they extract. If Pombo were serious
about generating revenue for the treasury, "the provision would at the
very least impose a royalty," said Alberswerth. "Clearly this has
nothing to do with addressing the ballooning federal deficit -- that's
just a pretext to ram this mining-industry agenda through Congress."

In October, Rahall introduced the Federal Mineral Development and Land
Protection Equity Act of 2005, which proposes an 8 percent royalty on
mineral production from mining claims. "That alone would raise $350
million in five years," Alberswerth said -- more than twice what Pombo
expects to generate in the same time period with his plan. (Oil and
coal producers, by comparison, are required to pay royalties of up to
12.5 percent or more when extracting from public lands.)

Critics are even more aghast that Pombo's mining-reform proposal would
not require buyers to prove that mineral resources exist beneath the
property they want to purchase, nor that they use the land for mining.
"As written, purchasing the land need only facilitate 'sustainable
economic development,"" Rahall said earlier this month. "Since the
term is not defined, 'sustainable economic development' could include
condominium construction, ski resorts, gaming casinos, name it." And
since the land would be privately owned and no longer under federal
jurisdiction, it would be immune to environmental reviews under the
National Environmental Policy Act or public input on development

A Crock in the Park

Last week, the Environmental Working Group released a study that
shows, state-by-state, the potential impact of the legislation on
Western lands (though it definitely errs on the high side with
estimates of acres that could be affected). The study's more striking
findings include the vulnerability of national parks and wilderness
areas. As the Pombo provision applies to current and past mining
claims alike, it would encompass some claims that have yet to be acted
upon that are older than particular national parks or protected areas
in which they're located.

Clouds descend over Death Valley National Park -- in more ways than
one."In national parks alone, there are more than 650 unpatented
mining claims that would be subject to sale for [as little as] $1,000
per acre if these provisions become law," said Rahall. An estimated 60
acres within California's Joshua Tree National Park could potentially
be offered for sale, as could roughly 720 acres within Death Valley
National Park, according to Alberswerth. Two hundred acres within five
miles of Grand Canyon National Park could also be on the chopping
block, say enviros. And in Alaska's Tongass National Forest, warns
Rahall, more than 60,000 acres of mining claims could be slated for
development under Pombo's provision.

Dozens of environmental groups have signed a letter [PDF] opposing the
bill. Moderate Republican House members including Thomas Davis III
(Va.) and Christopher Shays (Conn.) have already voiced concern, and
there's been vehement opposition from Senate Democrats including
Dianne Feinstein (Calif.) and Max Baucus (Mont.). (While a budget
resolution already passed by the Senate included a provision to allow
drilling in the Arctic Refuge, it did not include any mining

In a letter to Pombo, Feinstein argued, "This provision could allow
claimants to carve out numerous private enclaves within our public
lands, without even proving that mining deposits lie beneath them ...
it appears that potentially millions of acres of national forests and
BLM lands would now be required to be put up for sale by the interior
secretary merely because they contained 'mineral deposits.""

If the provision were introduced as a standalone bill, Alberswerth
thinks it would have a dewdrop's chance in hell of passing, as it
would stir up considerable opposition from a number of Republican
fiscal conservatives in addition to many Democrats.

Spend Your $.02 Discuss this story in our blog, Gristmill.But as part
of a huge budget reconciliation bill, it may stand a better chance.
The House Rules Committee has refused to remove the provision from the
bill, or allow an amendment that would strike it during the floor
debate, according to Alberswerth. "Basically we're looking at an up or
down vote" on the whole budget package, he said. "This bill is so huge
and controversial that this provision has gotten lost in the heap of
concerns." Though virtually all Democrats are expected to vote against
the bill, it's unlikely that any moderate Republicans would cast a nay
vote in protest of this provision alone, he said.

A House vote on the budget bill is expected as soon as tomorrow. If it
passes, opponents of the mining provision will hope that it's stripped
out during conference-committee negotiations between the House and
Senate. As there's nothing in the Senate version that even resembles
this language, that could be a good bet. But as Congress gets restless
to wrap up its work and break for the holidays, there's no telling
what could happen.


Amanda Griscom Little writes Grist's Muckraker column on environmental
politics and policy and interviews green luminaries for the magazine.
Her articles on energy and the environment have also appeared in
publications ranging from Rolling Stone to The New York Times

Copyright 2005. Grist Magazine, Inc.