Copyright 1999 Federal Document Clearing House, Inc.
Federal Document Clearing House Congressional Testimony
June 15, 1999
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 6635 words
HEADLINE:
TESTIMONY June 15, 1999 ROGER FLYNN SENATE ENERGY & NATURAL
RESOURCES FORESTS AND PUBLIC LANDS MANAGEMENT CROWN JEWEL MINE
BODY:
Before the United States Senate Committee On
Energy and Natural Resources Subcommittee on Forests and Public Land Management
Written Testimony of Roger Flynn, Esq. Executive Director Western Mining Action
Project 1405 Arapahoe Avenue Boulder, Colorado 80302 Concerning Issues Related
to the March 25, 1999, Letter from the Interior and Agriculture Departments
Regarding the Crown Jewel Mine June 15, 1999 Mr. Chairman, and Members of the
Subcommittee on Forests and Public Land Management, the Western Mining Action
Project (WMAP), appreciates the opportunity to submit this written testimony on
issues related to the March 25, 1999, Letter from the Interior and Agriculture
Departments concerning the Crown Jewel Mine in Okanogan County, Washington. WMAP
is a non-profit legal services organization that represents and provides
assistance to citizens groups and Native Americans on mining issues in the West.
WMAP is the attorney for the Okanogan Highlands Alliance and other conservation
organizations working on the Crown Jewel Mine proposal. Roger Flynn, WMAP's
Executive Director and Attorney, will offer supplemental oral testimony before
the Subcommittee on June 15, 1999. This written testimony discusses the scope
and limitations of mining and millsite claims under the 1872
Mining Law. In particular, it focuses on the issues involving mining operations
proposed on invalid mining and millsite claims -- such as the
Crown Jewel Mine. I. INTRODUCTION The General Mining Law of 1872, more commonly
known as the 1872 Mining Law, or just the Mining Law, is the fundamental statute
governing hardrock mineral development on the public lands. It's central tenet,
unchanged in 127 years, is that: "all valuable mineral deposits in lands
belonging to the United States, both surveyed and unsurveyed, shall be free and
open to exploration and purchase, and the lands in which they are found to
occupation and purchase. . . ."I Due to this preference for mineral development
on lands where there are "valuable mineral deposits," the Mining Law has rightly
been called "the Miner's Magna Carta. ,2 The Mining Law, and its immediate
predecessor, the Lode Law of 1866, essentially recognized and codified what was
already happening in the goldfields of the western U. S.3 Upon the discovery of
gold in California in 1848, individuals and groups of miners quickly realized
that some order had to brought out of the chaos of the Gold Rush. Up to that
point, Congress had essentially failed to enact a federal mineral policy for the
public lands. Miners staked and developed mining claims without interference
from federal authorities in the area, mostly the army. In essence, however, the
miners were trespassers on the public lands and usually had no legal right to be
removing the public's minerals, let alone constructing dwellings and other
improvements. With the passage of the 1866 and 1872 Acts, however, Congress
legitimized these existing practices. Along with codifying the existing claims
location and filing systems, however, Congress also recognized existing mineral
development practices. In 1872, mining did not involve the typical low grade
deposit utilized in modem mining operations. Ore processing that was needed was
often done far from the actual mine tunnels in smelters and other refining
facilities. There was little need for lands to conduct on-site processing or to
dispose of waste products at the mine sites.' As noted by the legal study
prepared for the 1970 Public Land Law Review Commission: The typical mine then
was a high-grade lode or vein deposit from which ore was removed by underground
mining. The surface plant was usually relatively small, and the surface of the
mining claims together with the incident mill sites adequately served the needs
of the mines for plant facilities and waste disposal areas. Today, the situation
is frequently different. The high- grade underground mines have, for the most
part, been mined out. Open pit rather than underground mining is, with
increasing frequency, the most economical way to mine the low-grade deposits
which now comprise a major portion of the reserves of many minerals. The mining
industry now relies on mechanization, the handling of large tonnages of
overburden and ores, and the utilization of large surface plants in order to
keep costs down so that these low-grade deposits may be mined and treated at a
profit. Such mining operations require not only substantial areas for plant
facilities, but much larger areas than formerly for the disposal of overburden
and mill tailings. The surface 6 areas of mining claims and mill sites are no
longer adequate for such purposes. This fact, that there was little need for
large tracts of land to handle waste, processing and other non-extraction
activities, was recognized by Congress in the Mining Law when it provided
limited acreage (and placed strict limitations upon the use of such acreage) for
such activities. This is known as the "millsite provision" of
the Law. In that section, Congress allowed non- mineral lands to be claimed, but
only under certain conditions: "Where nonmineral land not contiguous to the vein
or lode is used or occupied by the proprietor of such vein or lode for mining or
milling purposes, such non- adjacent surface ground may be embraced and included
in an application for a patent for such vein or lode.... The statute also
contains the requirement that "no millsite location made on or
after May 10, 1872 of such nonadjacent land shall exceed five acres."
Importantly, the millsite provision limited each
millsite claim to a maximum of five acres, compared to a
maximum of approximately twenty acres for mining claims.' In addition, a
claimant was limited to only one millsite claim for each mining
claim associated with that millsite. As noted in an early
Interior Department decision: "A mill site is required to be used or occupied
distinctly and explicitly for mining or milling purposes in connection with the
lode claim with which it is associated." These limitations, and their
relationship to restrictions on mining claims in the Mining Law, are a primary
focus of this testimony, particularly in relationship to the acreage demands of
modem mining operations. Despite these limitations on both mining and
millsite claims, the Mining Law served its purpose well based
on the needs and priorities of the mining industry during the Law's first
hundred years. As noted in a 1979 study by the Congressional Office of
Technology Assessment: " t hese limitations were probably not too restrictive in
1872 when mining operations were small er and involved high-grade deposits.""
However, modem mineral development bears little resemblance to the type of
mining and processing existing in 1872.12 Today, hardrock mining often utilizes
vast amounts of land, resources, equipment, and capital. The high-grade deposits
have largely been exhausted. Modem gold and copper operations, for example,
involve the excavation of open pits hundreds or thousands of feet deep, covering
hundreds of acres. Most critically, these operations require many more times
that amount of land for the processing or beneficiation of the minerals (usually
in large heap-leach facilities) and the disposal of uneconomic waste rock or
overburden that is removed from the earth to gain access to the ore deposit. It
is not uncommon for a mining project to need vastly more land for these
ancillary facilities than for the actual mine pit. 14 "Even having one 5-acre
mill site for each individual claim (assuming this to be lawful) may still be
insufficient for some modem operations. The ore body itself may be many times
smaller than the area required for disposal of waste material and for other
non-mining uses. In short, today's mining is drastically different, and requires
fundamentally different resources, than what Congress authorized in 1872.
Despite these critical changes in mineral development practices, the Mining Law
has not kept pace with the needs of the modem mining industry. Indeed, the
express limitations on the type, extent, acreage, and scope of the rights
granted by the Mining Law directly conflict with the necessities of modem mining
operations. Almost without exception, a modem hardrock mine on public lands
requires vast amounts of acreage in excess of what is allowed under the Mining
Law. When these operations occur or are proposed on federal lands, mining
operators usually locate a mixture of mining and millsite
claims, or just mining claims, to establish their rights to those properties
under the Mining Law. The claimant's interest is secure against competing claims
and may be transferred, sold, or mortgaged like any other property right. Such
claims, if valid, also establish rights against the federal government. A valid
mining claim is a constitutionally protected property right in the claim that
cannot be taken away without just compensation or be declared invalid except in
accordance with due process. A pressing issue across the West is whether the
mining and millsite claims filed across hundreds or thousands
of acres at individual mine sites are indeed valid. If they are, then current
regulatory mechanisms will likely remain in force. However, if some of these
claims are not valid, then a fundamental re- evaluation of the regulation of
public lands hardrock mining must occur. Recent developments in the field,
especially decisions by the Interior and Agriculture Departments, the BLK the
Interior Board of Land Appeals (IBLA), and the Forest Service, call into
question the status quo. Most notably, in November of 1997, Interior Secretary
Bruce Babbitt issued a concurrence to Interior Solicitor John Leshy's Memorandum
Opinion which severely limits the ability of mineral claimants to patent
millsites.'7 In that decision, Interior Secretary Babbitt and
Interior Solicitor Leshy held that "the Bureau BLM should not approve plans of
operations which rely on a greater number of millsites than the
number of associated claims being developed unless the use of additional lands
is obtained through other means." BLM headquarters subsequently issued an
Instruction Memorandum, or IM, in August of 1998, giving direction on its view
on how to implement the Secretary's directive.'8 In addition to these actions
regarding millsites, the EBLA issued a decision in November of
1998 that calls into question the very nature of the deference given mining
operations by the federal land management agencies. In March of 1999, the
Interior and Agriculture Departments rejected a large open pit mining proposal
based on the claim limitations in the Mining Law. 20 In the Crown JewelMine
Decision, the agencies denied the proposed Plan of Operations for the Crown
Jewel Mine in Washington State "because the Plan does not comply with the
requirements of the Mining Law of 1872...." This testimony discusses these
developments, in addition to an examination of the rights granted under the
Mining Law. II.LIMITATIONS ON N41NING AND MILLSITE CLAIMS A.
Mining Claims Under the 1872 Mining Law Federal mining and mineral entry laws
arose together with other land disposal policies of the second half of the 19th
century. The general land policy of the federal government encouraged westward
expansion, resource extraction, and settlement. All of the major land programs
of the era - the homestead, statehood, and railroad land grants, along with the
General Mining Law of 1872 - fostered a policy of land disposal based upon the
underlying social goals embodied in each program. Whether it was for the small
farmer and irrigator, commerce-expanding railroad companies, public schools for
states, or mineral development, each program was representative of the
manifest-destiny desires of the country. Mining claims on federal land are
"valid against the United States if there has been a discovery of a valuable
mineral within the limits of the claim, if the lands are still mineral, and if
other statutory requirements have been met. "It is a possessory interest in land
that is 'mineral in character' where discovery within the limits of the claim
have been made. The Interior Department is charged with regulatory oversight of
mining claims on federal land. "By general statutory provisions the execution of
the laws regulating the acquisition of rights in the public lands and the
general care of these lands was confided to the land department, as special
tribunal; and the Secretary of the Interior, as the head of the department, is
charged with seeing that this authority is rightly exercised to the end that
valid claims may be recognized, invalid ones eliminated, and the rights of the
public preserved. Against this backdrop, the Department and courts over the
years have been entrusted with the responsibility of resolving disputes between
rival claimants and users of the public lands. In order for an individual to
possess a valid mining claim, the claimant must meet the fundamental requirement
of the Mining Law, that there is the discovery of a valuable mineral deposit.
Discovery means "the actual physical disclosure of a valuable mineral deposit.
45 The Mining Law further states that any such locators of valuable minerals on
the public lands "shall have the exclusive right to the possession and enjoyment
of all the surface included within the lines of their location .... Even if such
rights exist, however, they exist only "so long as they comply with the laws of
the United States, and with State, territorial, and local regulations...... A
mining claim location does not give the presumption of a discovery. As the
Supreme Court has held: " L ocation is the act or series of acts whereby the
boundaries of the claim are marked, etc., but it confers no right in the absence
of discovery, both being essential to a valid claim. As the IBLA recently noted:
"A mining claimant's rights as against the United States are acquired only under
the General Mining Law, 3 0 U.S. C. 21 (1994), and unless and until the claimant
meets the requirements under those laws, no rights can be asserted against the
United States. The IIBLA continued: "It is axiomatic that operations may not
legally proceed on invalid claims. In another recent case, the IBLA stated: This
Board has held that, as against the United States, a mining claimant acquires no
vested rights by location of a mining claim. Even though a claim may be
perfected in all other respects, unless and until a claimant is able to show
that the claim is supported by a discovery of valuable locatable mineral within
the boundaries of the claim, no rights are acquired. In addition, the continuing
authority of the Department to inquire into the validity of claims so long as
legal title remains in the Department has been repeatedly reaffirmed by the
courts. B. Millsite Claims Under the 1872 Mining Law In
addition to affirming the right to enter mineralized federal lands for mineral
exploitation, the 1872 Mining Law granted holders of lode claims the right to
claim non- mineral land that was not contiguous to the vein or lode for use in
association with mining claims. The millsite provision of the
1872 Mining Law grants the holder of a lode claim the right to use or occupy
non- mineral land for mining or milling purposes. "Where norimineral land not
contiguous to the vein or lode is used or occupied by the proprietor of such
vein or lode for mining or milling purposes, such non-adjacent surface ground
may be embraced and included in an application for a patent for such vein or
lode...... The statute also contains the requirement that "no
millsite location made on or after May 10, 1872 of such
nonadjacent land shall exceed five acres. "No mill site entry should be allowed
unless it is shown that the conditions of the law have been complied with. In
1960, the last time it squarely reviewed the millsite acreage
limitations, Congress amended the Mining Law to extend the ability to utilize
and patent millsites in association with placer as well as lode
claim Importantly, Congress specifically rejected the original bill's proposal
to allow a millsite location of "ten acres for each individual
claimant" in connection with a placer claiM.36 The Senate Interior Committee's
Report on the bill stated: T he word "ten" was stricken and the word "five"
inserted in lieu thereof The purpose of this amendment is to restrict the area
of a millsite in conjunction with a placer claim to 5 acres of
land to make it conform with the allowable millsite acreage for
lode claims which has been the statutory requirement since 1872.... T he words
"for each individual claimant" were stricken so as to impose a limit of one
5-acre millsite in any individual case preventing the location
of a series of 5-acre millsites in cases where a single claim
is jointly owned by several persons.... In essence, S. 2033 merely grants to
holders of placer claims the same rights to locate a 5-acre
millsite as has been the case since 1872 in respect to holders
of lode claims, and the committee unanimously urges enactment. "This legislative
history demonstrates that Congress understood both the amendment in 1959 and the
existing Mining Law to permit location of only one five-acre
millsite per mining claim. The Senate Interior Committee
removed the phrase 'for each individual claimant' from the bill for the express
purpose of preventing the aggregation of multiple fove-acre
millsites by a mining claimant, and made it clear that the
Committee understood this to be consistent with the existing law applicable to
millsites associated with lode claims. C. Lode claim to
millsite claim ratio As with lode claims, Congress imposed a
maximum claim size for millsites. Millsites are not to exceed
five acres. In addition, a millsite will be limited to less
than five acres when a claimant requests more land for
millsites than is necessary to support the associated mining
operations. While the Babbitt/Leshy Memorandum notes that the Interior
Department could permit, at a maximum, five acres of millsite
for each associated mining claim, early Department decisions indicate that,
especially where lode claims are grouped together under common ownership, it
does not necessarily follow that the claimant is entitled to one five-acre
millsite for each individual lode claim. "It is not to be
supposed that Congress intended a grant of an equal number of tracts as
rightfully incident to all the lode claims of a compact group held and worked
under common ownership." " I t seems plain that ordinarily one mill site affords
abundant facility for the promotion of mining operations upon a single body of
lode claims. " Today, due to the size of modem open-pit methods, one
millsite generally may not accommodate the needs of the holder
of a group of lode claims. In fact, the mining industry is likely of the opinion
that an allowance of one five-acre mill site per each lode claim is also not
enough. However, a 1979 study by the Congressional Office of Technology
Assessment stated that " t hese limitations were probably not too restrictive in
1872 when mining operations were small er and involved high-grade deposits. The
study states that "the Mining Law does not adequately provide for land needed
for surface facilities and uses," particularly because of the difficulty of
planning in advance caused by the millsite provision's
requirement of present occupancy or use. As noted by the OTA Report: " t here
could be at most as many millsites as there are mining claims,
and each millsite would be at most one-fourth the size of the
typical 20-acre claim, so that the millsites, in the aggregate,
would be one-fourth the size of the ore body encompassed by the claims. " These
limits on the number of millsite claims, and the acreage
allowed, are critical to the management of mining operations in the West. D.
Operations Proposed on Invalid Millsite Claims: The Crown Jewel
Project in Washington State As noted, the millsite provision in
the Mining Law is not extensive, but its provisions present important obstacles
for modem mineral development. These limitations are directly at issue in the
Crown Jewel Mine in Washington State proposed by Battle Mountain Gold
Corporation. The Mine is proposed on a mixture of federal, state, and private
land with the vast majority owned by the Forest Service and BLM. As allowed
under the Record of Decision (ROD) jointly issued for the Project by the Forest
Service and BLK through continuous 24-hour-a-day, 7- days-a-week operations,
including massive blasting and earthmoving, the Crown Jewel Mine will remove
over 105 million tons of rock from the open pit to be blasted and excavated from
Buckhom Mountain over approximately 8 years. Of this, approximately 34,000 tons
of waste rock per day will be generated, totaling over 97 million tons of waste
rock that will be deposited in two massive, unlined dumps at the headwaters of
two important watersheds. The mine pit blasted into the side of Buckhom Mountain
will cover II 6 acres that will not be reclaimed or backfilled and will form a
lake that will be 350 feet deep and projected to violate numerous state water
quality standards. The operation would process approximately 3,000 tons of ore
per day. Out of this 3,000 tons of ore per day, or 1,095,000 tons of ore per
year, gold would be produced over the life of the project through a cyanide
leaching process that will use over 13,000 tons of sodium cyanide. The proposed
mining operation will directly disturb 787 acres of land -- over one whole
square mile. Approximately 60 percent of the disturbance would be on Forest
Service lands. The remaining disturbance will be on lands administrated by the
federal Bureau of Land Management (BLM) (24%), the Washington Department of
Natural Resources (2%), and private land (I 5%). The Crown Jewel Mine proposes
to utilize 117 unpatented millsite claims, while developing
only approximately 15 mining lode claims. The Babbitt/Leshy Memorandum held
that: Because the statute the Mining Law does not support issuing patents for
millsite claims totalling more than five acres per placer or
lode claim, the Department should reject those portions of
millsite patent applications that exceed this acreage
limitation. In addition, the Bureau BLM should not approve plans of operations
which rely on a greater number of millsites than the number of
associated claims being developed unless the use of additional lands is obtained
through other means. The Crown Jewel Mine Decision specifically dealt with these
issues. In that decision, the agencies denied the proposed mine plan of
operations "because the Plan does not comply with the requirements of the Mining
Law of 1872...." The agencies stated: "The Mining Law allows claimants to locate
up to five acres of nonmineral land for mill site use in association with each
valid mining claim. Any mill site acreage in excess of five acres per valid
mining claim is not valid. No rights of any kind attach to invalid mining claims
or mill sites. Under the Mining Law, the applicant may locate a maximum of 75
mill site acres, depending on whether all of the fifteen lode claims in the Plan
are valid. Based on the information in the Plan, the Crown Jewel Mine exceeds
the allowable amount of millsites by at least 490 acres." In a
letter to the Forest Service and BLM sent prior to the Crown Jewel Mine
Decision, Battle Mountain.argued that the millsite limit did
not apply to the Plan decision since the Babbitt/Leshy Memorandum was signed
after the ROD and Final EIS were issued. The fact that the Memorandum was
written after the ROD, though, is irrelevant. The Memorandum simply made clear
the Interior Department's view of the provisions of the Mining Law. It in no way
made no law or created new obligations on mining applicants. Secretary Babbitt
and Solicitor Leshy specifically noted that: A s reflected in treatises and
other commentary, including those by industry lawyers, the limitations of the
millsite provision appear to have been widely, if not
uniformly, appreciated. Therefore, I do not regard immediate application of this
Opinion to pending applications to be unreasonable or to thwart any legitimately
held expectation to the contrary. The agencies correctly rejected the company's
contentions, stating that: "BMG Battle Mountain Gold also stated that, because
BLM and USFS have signed the ROD for the Crown Jewel Mine, the agencies are
barred from applying the mill site limitation. We disagree. Nothing in the ROD
vests any right in BMG. The ROD did not purport to make any determination as to
whether BMG has established valid rights under the Mining Law; it simply
selected a preferred alternative." The agencies also vacated the ROD issued in
January, 1997. "Selection of the preferred alternative in the Crown Jewel Mine
environmental analysis rested on the premise that BMG had had unpatented mining
claims and mill sites that the government could later challenge. The ROD by its
very terms addressed only the selection of an alternative for National
Environmental Policy Act purposes. The ROD is clear that its selection of an
alternative is valid only insofar as the unpatented mining claims and mill sites
are valid. To the extent that BMG has not established rights under the Mining
Law, the ROD did not create rights or exempt BMG from complying with the law."
The ROD and Final EIS were also based on the perceived "limited discretion"
available to federal land managers reviewing operations with valid mining and
millsite claims. For example, the ROD acknowledged that due to
the agencies' assumption that all the project-related mining and
millsite claims were valid, the Mining Law "limits the scope of
decision making discretion available to decision makers." The Final EIS
similarly based the "Purpose and Need" of the operation on the "statutory
rights" of the applicant under the mining laws. In this case, as noted in the
Crown JewelMine Decision, there are no "statutory rights" to operate on invalid
mining or millsite claims. The question remains, though, as to
the proper regulatory framework for operations proposed on invalid claims. The
Babbitt/Leshy Memorandum noted that, in the absence of valid
millsite claims (i.e., a greater number of
millsite claims than associated mining claims being developed),
a project applicant could nonetheless attempt to gain the use of federal land.
The examples discussed by the Memorandum were land exchanges under FLPMA Section
206 and "permits and leases under Title III of FLPMA." The Crown Jewel Mine
Decision outlined the options available to project applicants. For example, the
agencies specifically stated that: "We emphasize that there are ways for BMG to
still proceed with developing the Crown Jewel Mine consistent with the mill site
limitation. On both National Forest and BLM-administered lands, BMG could seek a
land exchange, provided the federal agencies determine that an exchange would be
in the public interest." The Crown Jewel Mine, and the project facilities
proposed on the excess acres, would clearly result in unacceptable environmental
degradation. For example, the State of Washington has expressly acknowledged
that ground and surface water standards are predicted to be violated by the
pollution released by the waste rock dumps. Clearly, project facilities located
on excess millsite acres that will violate water quality
standards present an unacceptable public land use. In addition, a number of
other critical resources will be either destroyed or irreparably injured by the
location of the waste rock, tailings, and other project facilities on the excess
millsite acres. For example, despite the "mitigation" proposed
by the Forest Service and BLM in the FEIS and ROD, the agencies admit that there
are many "unavoidable adverse effects" from the Crown Jewel Mine. According to a
summary list in the FEIS, these unavoidable effects include: "loss of vegetation
and wildlife habitat (short and long-term)"; "permanent alteration of the
topography (long-term)"; "loss of wetlands, springs and seeps and changed
functions and values of wetlands (short and long-term)"; "soil productivity
(long-term) ; "timber production (short and long-term)"; and "loss of sensitive
plants (long-term)". This exhaustive list does not even include additional
resource destruction caused by the mine pit located on the lode claims (e.g.,
projected violations of state water quality standards in the pit lake,
destruction of cultural resources, shift in hydrologic divide between
drainages). The loss of wetland function and value acknowledged in the FEIS is
especially egregious in light of BLM's policy to protect wetland and riparian
resources. In addition, the Environmental Protection Agency has objected on
numerous occasions to the level of destruction proposed by the Project. 54
Overall regarding the limits inherent in the Mining Law, the fact that the
millsite limitation may not comport with modem open pit mining
practices does not excuse the federal government from complying with the law.
"The evolution of the mining industry over the years has increased the need,
with some mining practices, to secure the use of ancillary acreage to support
locatable mining operations. For some kinds of mining, the five- acre limitation
precludes obtaining that acreage." As held by the Supreme Court, " The Secretary
is charged with seeing that this authority is rightly exercised to the end that
valid claims may be recognized, invalid ones eliminated, and the rights of the
public preserved. ,56 In this case, since the Crown Jewel Mine exceeds the
strict limitations of the Mining Law, the agencies correctly informed the
project applicant that such a Plan of Operations could not be approved. III. TBE
FUTURE OF FEDERAL MINE PERMITTING: HARDROCK MINING MEETS MULTIPLE USE In light
of the invalidity of mining and millsite claims at many
hardrock mining operations in the West, the question remains: "What should the
federal land management agencies do when faced with a mine proposed in whole or
in part on invalid claims?" The answer to this question will determine the
future of mine permitting on federal public lands. The answer, in short, is to
treat mining operations that lack valid claims like any other "multiple use" on
the federal lands. This is because a mining operations proposed on invalid
claims do not have statutory "rights" different from any other user of public
lands. The issue was summarized in the American Law of Mining: In addition to
the land on which mining will occur, other areas are usually needed by a mining
operation for such ancillary purposes as adit construction, plant sites, pit
slopes, ore, waste and equipment storage, tailings ponds, water reservoirs, and
town sites. The acquisition of federal lands or interests therein by means other
than the location of mining claims or mill sites is sometimes necessary to
provide the additional ground needed for a planned mining operation. The
restraints on the number and size of mill site claims can limit their usefulness
as a land acquisition method. The use of mining claims for ancillary purposes is
often limited by their use for actual mining and the requirement that there be a
mineral discovery within each claim. The task of the federal land agencies is to
determine whether, and to what extent, it may permit these ancillary facilities.
The following discussion focuses on the statutory and regulatory framework
applicable to the BLM and Forest Service. A. BLM Authority Over Mining
Operations That Lack Valid Claims Use of BLM lands is governed by the Federal
Land Policy And Management Act of 1976 (FLPMA). That law requires that "the
Secretary shall manage the public lands under the principles of multiple use and
sustained yield . . . . This mandate is different when the lands involved are
covered by valid mining and millsite claims. In this latter
case, the BLM is limited to "prevent ing unnecessary or undue degradation" on
the claimed lands. 59 Many mines invoke the first scenario - federal authority
over public lands that are not validly claimed under the mining laws. The FLPMA
defines "multiple use" as "management of the public lands and their various
resource values so that they are utilized in the combination that will best meet
the present and future needs of the American people. The "multiple use" mandate
also requires "management of the various resources without permanent impairment
of the productivity of the land and the quality of the environment with
consideration being given to the relative values of the resources...... In
addition, the FLPMA lists a broad range of resource values to be taken into
consideration, "including, but not limited to, recreation, range, timber,
minerals, watershed, wildlife and fish, and natural scenic, scientific, and
historical values." In Sierra Club v. Butz, the Ninth Circuit held that FLPMA's
multiple use statutory mandate require s that the values in question be
informally and rationally taken into balance. With respect to public lands
management by the BLM, the Interior Board of Land Appeals (EBLA) has expressly
adopted Butz, specifically applying that holding to the FLPMA "multiple use"
mandate. In order to prove that the resource values have been informally and
rationally balanced, "the process must show that BLM has balanced competing
resource values to ensure that the public lands ... are managed in the manner
that will best meet the present and future needs of the American people. ,6'
Further, the legislative history of the FLPMA shows that the long list of
resources to be considered by the BLM in the management of the public lands was
inserted into the Act "to insure that the ... values . . . which are difficult
to quantify and thus to consider, are given equal weight with more quantifiable
resource values in the ... management of the national resource lands. Thus, the
BLM must balance the relative values of the various resources on the public land
giving equal consideration to all such resource values. Federal courts have
granted the BLM discretion in its final decision resulting from a multiple use
analysis, but only after such analysis was properly conducted.66 Although the
BLM has flexibility as to how and when it conducts its multiple use analysis,
this discretion in no way mitigates the BLM's legal obligation to conduct such
analyses prior to permitting the use of the public lands for mining purposes
under 302 of the FLPMA. Therefore, before approving any mining use on the public
lands outside the Mining Law acreage and discovery limitations, the BLM is
required to give equal consideration to the relative values of the various
resources on the public lands in question and make an informed and rational
determination as to whether to allow such mining development. B. Forest Service
Authority Similar to the BLM, the Forest Service is struggling with the question
of mining- related activities on invalid claims. Like the BLM, the Forest
Service regulations covering operations on valid claims, 36 C.F.R. Part 228, is
very different from its multiple use authorization requirements. Forest Service
authority over lands under its administration, including mining operations, is
governed by its Organic Administration Act of 1897. This statute authorized the
agency to promulgate rules and regulations for the national forests in order "to
regulate their occupancy and use and to preserve the forests there on from
destruction. As noted by Clouser v. Espy, the leading Ninth Circuit case on the
Forest Service's authority over mining: "Further, it the Organic Act specifies
that persons entering the national forests for the purpose of exploiting mineral
resources 'must comply with the rules and regulations covering such national
forests."' In 1974 and 198 1, the agency adopted regulations under this
authority "in connection with operations authorized by the United States mining
laws (30 U.S. C. 21-54)...." The Forest Service has a judicially enforceable
duty to prevent destruction of National Forest System lands and to minimize
adverse environmental impacts to National Forest surface resources. In the
district court case in Clouser, the court noted that the Forest Service's
Organic Act, 16 U.S. C. 551, requires that the agency "must ... ensure that its
approval of a plan or project does not result in the 'destruction' and
'degradation' of the public forests." The National Forest Management Act (NFMA)
also requires that all Forest Service projects and activities "shall be
consistent with the land management plans". The Ninth Circuit has held that " p
ursuant to the NFMA, the Forest Service must demonstrate that a site-specific
project would be consistent with the land resource management plan of the entire
forest. The Forest Service must also abide by the multiple use mandates as
defined in federal public land law. As noted by one leading treatise, " t he
definition of multiple use in FLPMA for the BLM public lands is almost identical
to that for the Forest Service . Thus the multiple use analysis discussed above
is generally applicable to both the Forest Service and BLM. Similar to the BLM's
3809 regulations, the Forest Service's mining regulations cover "operations
authorized by the United States mining laws (30 U.S.C. 21-54). Thus, similar to
the above discussion dealing with BLM authority over activities that are not so
authorized, the Forest Service, like the BLM, must look to its multiple use
mandates for the authority to approve activities on non-claimed, or
invalidly-claimed or utilized lands. CONCLUSION The 1872 Mining Law is a
two-edged sword for the hardrock mining industry. On one hand, the "free access"
provision grants a benefit unequaled on the public lands. However, the Law's
limitations on mining and millsite claim validity present real
challenges to low-grade open pit mining proposals. Just as the "free access"
provision cannot be ignored, neither can the claim limitation provisions. Faced
with the reality of the Mining Law, the industry may demand that the "rights"
granted by the Mining Law on valid claims somehow extend onto the public's lands
- lands not authorized by the Mining Law. As the federal courts have stated:
"These companies have now come into court ... and have said, 'This is not enough
land; give us more.' We have no more power to grant their request, of course,
than we have the power to increase congressional appropriations to needy
recipients."77 Certainly, adherence to the claim limitations will result in
substantial on-the- ground changes in mining practiceS.78 It is very possible
that every low-grade, marginally economic mine cannot absorb the additional
costs necessitated by the need to move some ancillary facilities off federal
land. Due to the environmental and social costs of many of these operations,
they should be subject to the multiple use balancing test applicable to all
other uses on the public lands. It is very possible that the proper
interpretation and implementation of the claim limitations will spur
congressional reform of the Mining Law. However, real reform of the claim
provisions must be accompanied by real reform of the "free access" provision. In
other words, comprehensive reform may entail loosening the claim restrictions
while at the same time reducing or eliminating the oft-perceived "statutory
right" to mine valuable minerals -- mining that has occurred despite the
environmental or social costs entailed in extracting the minerals. The end
result will hopefully be a better balancing of the needs of the mining industry
with the needs of the public and the environment across the West.
LOAD-DATE: June 17, 1999 
