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Copyright 1999 Federal Document Clearing House, Inc.  
Federal Document Clearing House Congressional Testimony

June 15, 1999


LENGTH: 1789 words


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

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