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June 15, 1999

Interior Department Mining Ruling "Clever Rewrite of Existing Law"

Washington -- A recent Department of Interior mining legal opinion is a "cleverly packaged rewrite of existing law," a National Mining Association witness today told a Senate subcommittee.

"The subcommittee should appreciate that the opinion is not an objective legal analysis. It is advocacy and it reflects a selective presentation of facts and misleading and incomplete characterizations of legal authorities," Patrick Garver, president, Barrick Resources (USA) Inc., executive vice president and general counsel, Barrick Gold Corp., and testifying for the NMA, told the Senate Energy and Natural Resources Subcommittee on Forests and Public Land Management. Garver told the panel that Interior's "millsite" legal opinion was offered to support a restrictive new policy regarding the use of public lands for mineral development.

At issue is an Interior Department solicitor's legal ruling based on the proposition that mining law only allows a miner one five acre millsite claim per mining claim planned to be developed. Millsite claims are employed to secure the right to use ground for purposes ancillary to mining, such as milling and the storage of necessary equipment. The proposition, upon which the Interior Department based its opinion, is not now, nor has it ever been, the law in the United States.

If allowed to stand, the Interior Department's ruling will render the Mining Law virtually meaningless and shut down hard rock mining operations and projects representing thousands of jobs and billions of dollars of investment throughout the West.

"To the extent that the millsite opinion is presented to the subcommittee as a fair and complete characterization of either the law or historic agency practice regarding the use of 'multiple millsites,' it is wrong," Garver told senators.

The witness explained the Interior solicitor implies in his millsite opinion that the practice of locating, using and patenting "multiple millsites" is something of an "aberration," which has recently evolved and only recently has been discovered by the solicitor during this administration's review of patent applications.

"That impression is misleading. The U.S. mining industry has utilized multiple millsites throughout the history of the General Mining Law and most large U.S. metals mines currently utilize multiple millsites," Garver stressed.

He added that the Bureau of Land Management (BLM) has consistently endorsed this interpretation of law, as reflected in both the BLM Manual and the BLM Mineral Examiners Handbook. "Indeed, mining law 'reform' advocates have been aware of the BLM's interpretation of the law for decades."

Garver pointed out that the Congress has directed the Interior Department to provide it with data that will illustrate the number of patents and plans of operations that involve multiple millsites. Once that information has been provided, it will confirm that the Department has long had a consistent interpretation, that multiple millsites may be located, used and patented consistent with the General Mining Law.

In closing, Garver told subcommittee members that since the date of the opinion, the number of substantial new mines permitted is none, because it is virtually impossible to satisfy the solicitor's new requirements at any substantial mine located on public land.

"The millsite opinion then is a 'train wreck' of sorts for the domestic mining industry. It is the kind of 'unworkable' interpretation of existing law, or 'crisis,' that the solicitor postulated one might need to create in order to force the mining industry to accept mining law changes on terms acceptable to the administration," Garver concluded.

- NMA -