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The Mining Law has Been Amended


“The Mining Act of 1872, 30 U.S.C. §§ 22-54 1/6/2009

All Credit for this page goes to "Equal Access to Justice, Inc." at below link

Since the Clinton Administration, both political parties have proposed major revisions to the Mining Law of 1872, as Amended. We say “as Amended” because that is how the Mining Law is usually referenced and because it has, in fact, been amended since 1872.

We surmise that some say that, “the Mining Law has not been amended since 1872”, to support their view that their proposed major revision is in order. These same proponents also imply that the Mining Law does not afford any protection, what to speak of sufficient protection, of the environment. Neither representation is true by any stretch of the imagination. One should be very wary of anyone who finds it so necessary to blatantly misrepresent the truth to gain support for their view.

Congress did not micro manage mining. Instead of constantly revising the Mining Law, they bestowed their power to manage mining unto the Secretaries of Agriculture and Interior. For the National Forests, effectively, the Mining Law of 1872 was first amended in 1897. (16 U.S.C. §§ 478 and 551.) Then, Congress delegated to the Secretary of Agriculture the authority to regulate mining in the National Forests.

“The Mining Act of 1872, 30 U.S.C. §§ 22-54, is still the basic law governing mining activities today. That Act consolidated existing laws, and promoted prospecting on public lands. About 25 years later, Congress made it clear that mining was allowed in the National Forests, and delegated to the Secretary of Agriculture the authority to prescribe ‘rules and regulations’ that would govern mining activity. 16 U.S.C. § 478.” (Baker v. USDA (Dist. Idaho, 1996) 928 F. Supp. 1513, 1519.)

Under that authority, the Secretary of Agriculture has regulated and continues to regulate mining to protect the environment.

“Since then, the Department of Agriculture's Forest Service has promulgated regulations governing mining activity. Specifically, the Forest Service has promulgated regulations requiring the mining in National Forests ‘be conducted so as to minimize adverse environmental impacts on National Forest System surface resources.’ 36 C.F.R. § 228.1 (1993).” (Baker, 928 F. Supp. at 1519.)

For all Federal lands, the Mining Law of 1872 was, actually, amended in 1970 by adding Section 21a. (30 U.S.C. § 21a.) Congress declared its policy concerning mining and made the Secretary of the Interior responsible for carrying out that policy. The Secretary has construed this Amendment to require mining regulations that ensure protection of the environment.

“While the original Mining Act of 1872 contained no environmental protections, Congress later revised the Act to declare that it was the ‘policy of the Federal Government ... to promote the wise ... use of our natural ... mineral resources ... and to lessen any adverse impact of mineral extraction and processing upon the physical environment....’ 30 U.S.C. § 21a.” (Baker, 928 F. Supp. at 1519.)

For all Federal lands, the Mining Law of 1872 was supplemented in 1976. (43 U.S.C. §§ 1701-1784.)

“On October 21, 1976, Congress passed the Federal Land Policy and Management Act (FLPMA) §§ 101-707, as codified at 43 U.S.C. §§ 1701-1784. This legislation supplemented the earlier mining laws popularly known as the ‘General Mining Act of 1872,’ established further policies and guidelines for managing public lands, and, relevant to this case, policy and guidelines for the management of potential wilderness areas located on the public lands.” (In re Reeves (2002) 54 Fed. Cl. 652, 653.)

There is no doubt that mining is regulated and, regulated to protect the environment.

“While mining ‘has been accorded a special place in our laws relating to public lands,’ Weiss, 642 F.2d at 299, there is no doubt that mining activities are subject to regulation to protect the environment. California Coastal Comm'n v. Granite Rock, 480 U.S. 572, 94 L. Ed. 2d 577, 107 S. Ct. 1419 (1987). There is no inherent conflict between mining and environmental interests indeed, they ‘were intended to and can coexist.’ Weiss, 642 F.2d at 299.” (Baker, 928 F. Supp. at 1519.)

Without exception, the courts, including the Supreme Court, have concluded that mining is over regulated.

“The variety and complexity of regulations governing miners in National Forests is certainly bewildering. In typical understatement, Supreme Court Justice Lewis Powell described the legislation as an ‘almost impenetrable maze....’ Granite Rock, 480 U.S. at 606. Amidst this confusion, it comes as no surprise that some regulations may overlap or conflict.” (Baker, 928 F. Supp. at 1519.)

We agree with all the courts mining is not under-regulated, as some advocates of major revisions to the Mining Law would imply but, rather, it is over-regulated. If the Mining Law is to be revised, it should be to make one set of regulations a set that is not conflicting, within itself, and is in conformity with the constitution and other law. Whilst making out our wish list this Christmas we would like Congress to provide a citizen suit provision that, effectively, would retract a newspaper’s adjudication right for making such blatant misrepresentations, as we mentioned here. One can only hope!

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