Copyright 1999 Federal Document Clearing House, Inc.
Federal Document Clearing House Congressional Testimony
June 15, 1999
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 1789 words
HEADLINE:
TESTIMONY June 15, 1999 JOHN D.LESHY SENATE ENERGY &
NATURAL RESOURCES FORESTS AND PUBLIC LANDS MANAGEMENT CROWN JEWEL MINE
BODY:
Testimony before the Subcommittee on Forests
and Public Land Management Committee on Energy and Natural Resources U.S. Senate
John D. Leshy Solicitor Department of the Interior June 15, 1999 Good afternoon,
Mr. Chairman and Members of the Subcommittee. Thank you for the opportunity to
appear here today to discuss the limit on mill site claims on public lands under
the General Mining Law of 1872, and its specific application to the Crown Jewel
Mine in Washington State. Over the last few months, I have heard some erroneous
characterizations of the Solicitor's Opinion of November 7, 1997, and I
appreciate this opportunity to set the record straight. Misconception # 1: The
mill site limitation of the Mining Law is a recent invention without any support
in the law. The amount of non-mineralized public land that may be claimed under
the 1872 Mining Law for mineral processing and related purposes is found on the
face of the law, which states that "no location made of such ... land for mining
or milling purposes shall exceed five acres." Beginning shortly after passage of
the law, this language has been interpreted to limit claim holders to a maximum
of five acres for mill sites per lode mining claim. For example, in 1884, the
Secretary of the Interior issued a ruling stating that more than one mill site
might be patented with a claim, provided that the total area did not exceed 5
acres. J.B. Hoggi , 2 L.D. 755 (1884). Later decisions followed the same basic
position. A chronology of how this issue has been addressed in cases and
treatises is attached to my testimony. Misconception # 2: Congress has never
acknowledged or approved the limitation. Congress not only understood that this
limit was being enforced by the Executive; Congress itself took pains in 1960 to
reconfirm that limit. Specifically, in that year the Mining Law was amended to
allow mill site claims to accompany placer claims - previously mill sites could
only accompany lode claims. The Eisenhower Administration recommended that the
bill as introduced (which allowed a mill site location of "ten acres for each
individual claimant") be modified to reduce the acreage to five and to make
clear that it would not lead to the aggregation of many acres of mill sites at
one mining site. The Senate predecessor to this Committee agreed, explaining in
its report that the amendment allowed only one mill site per claim, rather than
one mill site per claimant. The Committee emphasized that the provision allowing
mill sites to accompany placer claims "merely grants to holders of placer claims
the same rights to locate a 5- 'II site as has been the case since 1872 in
respect to holder of lode claims...... S. Rep. acre ml No. 904, 86 1h Cong., I"
Sess., at 2 (1959). This clearly shows that Congress understood, and chose not
to change, the one-per-claim limit on mill sites. If mining companies are to be
given the right to additional mill sites on federal land, the Congress must
amend the Mining Law. As this history shows, the mill site limit in the Mining
Law had been consistently interpreted by the Department of the Interior and well
understood by the Congress, the mining industry and its legal representatives
for many years. At the time that the 1872 Mining Law was enacted, five acres was
an adequate size for milling, processing and storing waste rock from the
high-grade ores being mined. In recent years, particularly with the development
of cyanide heap leach technology which allows the processing of gold from very
low grade ores, the areal requirements for some mining operations have vastly
expanded. A modem gold mine using such technology may process a mountain's worth
of rock, and require an enormous area for waste rock dumps, tailings piles, and
leach pads. For example, one proposed mine now before the Department would move
more than seven million ounces of ore and waste rock for every single ounce of
gold produced. Operations of this type and scale were not contemplated in 1872,
and if they need public lands for this purpose, their needs are simply not
accommodated within the mill site provisions of the 1872 law. The problem that
came to a head with the Crown Jewel Mine came about because of these changes in
mining industry technology in recent years. As the attached chronology shows,
industry representatives and observers were well aware of this problem. As best
we can determine, what happened was, without my policy directive from BLM senior
management, and without the benefit of Any legal advice from the Solicitor's
Office, some Bureau of Land Management (BLM) offices closed their eyes to these
well- understood legal limits. BLM's practice of not reviewing the validity of
mining claims when it was evaluating plans of operations for mines may have
contributed to the problem. Misconception #3: BLM and the Forest Service
specifically approved the Crown Jewel mine's use of excessive mill sites, only
to reverse course years later. BLM and the Forest Service approved the Record of
Decision (ROD) on the environmental impact statement (EIS) under NEPA in early
1997 for the proposed Crown Jewel mine without looking at the underlying mill
site issue. In approving the ROD, the agencies did specifically state that their
" a pproval of the Selected Alternative will not now, nor in the future, serve
as a determination of ownership or validity of any mining claim to which it may
relate. . . . " Misconception #4: This Administration seized on the mill site
limitation to promote Mininsz Law reform. When the Secretary first took office
in early 1993, he was astonished to learn that there was no routine careful
legal review of mining law patent applications, even though decisions on these
applications could transfer billions of dollars of public property into private
hands. In March 1993 he instituted a careful review of patenting to make sure
that patents were issued only when all the requirements of the law had been met.
It was through that careful review that career attorneys in the Solicitor's
Office noticed that some applications involved patenting more mill sites than
the law allowed. This led to an examination of BLM's practice, through which it
was discovered that the practice in some offices had changed, without any
considered judgment or review. The results of that examination are described in
the Solicitor's Opinion, which we prepared to end the confusion. I have attached
a copy of that Opinion to this testimony. The Opinion reviews the past
interpretations and practices regarding excess mill sites under the Mining Law.
It acknowledges that there have been some recent occasions when BLM has ignored
the mill site limit, and that the most recent edition of BLM's Handbook for
Mineral Examiners states that there is no limit. There was no legal
justification sought or offered for those recent changes. The law, its history
and interpretation left no room but to conclude that mill sites are limited to
five acres per claim. I cannot emphasize enough that this is not a novel
interpretation of the law - it was not invented to punish the mining industry.
The appended list of interpretations that limited mill site acreage to five
acres per claim plainly refutes such a notion. Misconception #5: The mill site
limit means the end of hardrock mining on public lands. The five-acre limit does
not prevent mining on the public lands, even modem, large-scale heap- leach gold
mines. As both the November 1997 Opinion and the recent letter to the owners of
the Crown Jewel mine noted, other alternatives are available to occupy public
land that may be needed for waste dumps and tailings piles; notably, land
exchanges or permits under FLPMA. In fact, some mining companies have used these
alternatives to secure a more defensible legal position for their mining
operations. (BLM, though not the Forest Service, may issue permits for mining
operations under the Federal Land Policy and Management Act (FLPMA) as well as
the Mining Law, so the Mining Law limit on mill sites would not by itself
prevent the agency from permitting the use of excess mill sites in its
discretion.) Misconception #6: The application of the mill site limitation to
the Crown Jewel 12ro-ject was wholly unexpected. I have also heard criticisms
that our recent action on the Crown Jewel Mine took the company and the mining
industry by surprise. I don't understand how that is possible. The November 1997
Solicitor's Opinion said unequivocally that the BLM "should not approve plans of
operations which rely on a greater number of mill sites than the number of
associated claims being developed unless the use of additional lands is obtained
through other means." (Opinion, p. 2.) The Opinion was publicized in a leading
industry trade publication, the Mine Regulation Reporter, shortly after it was
issued. BLM prepared an instruction memorandum to its field offices in 1998
which gave further guidance on implementation. I discussed the mill site issue
on more than one occasion in 1998 with representatives of the mining industry,
who showed great familiarity with the opinion and expressed to me their desire
to seek legislation to "fix" the problem by amending the Mining Law.
Representatives of the Battle Mountain Gold Company told me in early March of
this year that they were aware of the Solicitor's Opinion shortly after it was
issued. While the Crown Jewel Mine was, to my knowledge, the first mine to have
a plan of operations denied because of excess mill sites, it was not the first
time the mill site limit was applied. Earlier, our review of patent applications
revealed that some applicants were requesting a patent on excess mill sites, and
we asked the applicants to select the appropriate number of mill sites, rather
than denying the entire application. Those patent applications are still in
process. For all these reasons, it could not have been surprising that we would
deny the Crown Jewel application in accordance with the plain terms of the
Solicitor's Opinion issued nearly eighteen months earlier. My Office and the BLM
are, nevertheless, considering taking further steps to ensure that mining
claimants with excess mill sites are given early notice of the limits of their
legal claims, and are given clearer guidance on the extent to which the lands
they need for their mining operations (as described in their proposed plans of
operations) will be considered as covered by the mill site provisions of the
Mining Law or as subject to BLM's discretion under FLPMA. Thank you for this
opportunity for me to clear up a number of misconceptions regarding the mill
site limitations of the 1872 Mining Law. I would be happy to answer any
questions.
LOAD-DATE: June 16, 1999
