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It’s a federal law that has been on the books for nearly 150 years.
Critics point to EPA data showing 40% of the watersheds in Western states have been polluted by abandoned mines and other reports that estimate American taxpayers have had to pay billions of dollars to remediate roughly a half-million abandoned mining sites and that the federal government is missing out on billions in royalties under an antiquated law.
Yet, the General Mining Act of 1872 remains on the books without much modification since it was signed into law during the first term of President Ulysses S. Grant.
“Our mining laws are ancient. They need to be updated,” said Anna Hansen, the Santa Fe County Commissioner behind a resolution unanimously approved last week in support of federal legislation that aims to reform the mining law.
The law, enacted after the California Gold Rush, opened up land in the public domain to prospecting and mining for such minerals as gold, silver, copper and platinum, and other “valuable mineral deposits,” to individuals and corporations.
American citizens 18 and older got the right to make mining claims of hardrock or gravel on lands within the “public domain.” That includes land managed by the U.S. Forest Service and Bureau of Land Management, but excludes national parks, wilderness areas and wildlife refuges.
The proposed Comexico drilling operation near Tererro straddling the Santa Fe-San Miguel County line is located in the Santa Fe National Forest, but Hansen said her resolution wasn’t offered with that in mind.
“You know me, I’m an environmentalist, and I care about the water, earth and sky,” said Hansen, who helped establish the Green Fire Times, a monthly publication with a focus on environmental and sustainability issues. “Mining is one of the most toxic industries and protecting our rivers in New Mexico is extremely important to me. I see this as an opportunity to protect our rivers, and this (resolution) is a way of doing it without going after one person or mining company.”
An email seeking comment from Mike Haynes, the managing director and CEO of New World Cobalt, the Australia-based company of which Comexico is a subsidiary, was not returned this week. But Haynes cited in a phone interview last August the 1872 mining law as justification for his company to apply for permits to drill exploratory holes in the national forest about 10 miles north of the village of Pecos and not far from the Pecos River.
Residents of the area have been up in arms over the proposal. Many remember the damage done in the 1990s when tailings from long-shuttered mining operations were captured by runoff from a heavy snowmelt and flowed into the river. It cost $28 million to clean it up.
In 2014, throngs of people turned out for a County Commission meeting to protest a proposed 50-acre gravel mining operation on La Bajada Mesa, which led to the county imposing a one-year moratorium on mining.
Those proposals aside, Commissioner Hansen said she had other reasons for introducing the resolution. She said the resolution complements amendments made to the county’s Sustainable Land Development Code last year that adopted new mining rules and was meant to update out-of-date sections of provisions developed 20 years earlier.
She also did it for sentimental reasons. She points out that 2020 marks the 50th anniversary of the first Earth Day celebration. And she says that part of her did it out of respect for Sen. Tom Udall, who has championed changing the old mining law and is retiring at the end of the current election cycle.
The mining industry is opposed to changing the law governing prospecting and mining for economic reasons, saying it would be a job killer.
“All the recent efforts we have seen to ‘reform’ mining law – including this bill – have been nothing more than a collection of punitive royalty rates, tax increases and overreaching land withdrawals,” Ashley Burke, senior vice-president for communications for the National Mining Association, said in an email of current legislation in Congress. “Pursuing this path will only drive investment and jobs away from the U.S. at a time when our import dependence is exposing our supply chain to increasing risk. If anything, lawmakers should be looking at ways to encourage – not discourage – domestic minerals production.”
The New Mexico Mining Association, which met in Santa Fe last week, referred questions to the national organization.
There have been several efforts to reform the old mining law in recent years, and New Mexicans played prominent roles.
Former U.S. Rep. Steve Pearce, now chairman of the Republican Party of New Mexico, helped put a stop to a proposed change in the law in 2006, siding with the mining industry.
“Why would a nation want to send our metals and uranium mining offshore, then wind up reliant on foreign countries for the raw materials we need for our industries and new power plants?” said Pearce at a time when he was the ranking Republican on the House minerals subcommittee.
A year later, the House did pass the Hardrock Mining and Reclamation Act of 2007, which would have imposed royalty payments from mining operations, but it died later in the Senate.
In 2009, Sen. Jeff Bingaman of New Mexico introduced a similar bill, but it wasn’t acted upon before Congress adjourned in 2011.
Sen. Udall has introduced hardrock mining legislation three times, including last year.
Last May, Udall and U.S. Rep. Raúl Grijalva, a fellow Democrat from Arizona, held a press conference to introduce new legislation to update hardrock mining laws. It requires companies to pay royalties, which would be used to clean up abandoned mines. It came in response to the 2015 Gold King mining disaster that sent 3 million gallons of toxic wastewater down New Mexico’s Animas and San Juan rivers.
“If mining companies want to profit from the American people’s public land, then they need to pay their fair share and clean up the mess they leave behind,” Udall said. “But since 1872 – for 147 years – the hardrock mining industry has enjoyed an outrageous sweetheart deal, unlike any other industry, where the miners get the gold and the taxpayer gets the shaft.”
Just a few months later, the Tererro proposal came up and Udall called it “the poster child” for how foreign corporations can exploit our country’s antiquated mining laws.
“We have an Australian company proposing to come in and mine U.S. public land in a treasured outdoor recreation area without paying any royalties, while taxpayers are still wrestling with the legacy of toxic waste piles left behind by the previous mining operation that contaminated the Pecos River, killed thousands of fish, buried a creek, led officials to declare the area a Superfund site and hurt the area’s tourism economy,” Udall said.
The bill Udall introduced is a companion bill to Grijalva’s House bill. He has requested a hearing in the Energy and Natural Resources Committee in the Senate.
“The royalties and permitting requirements in the bill would apply to commercial mines, while excluding ‘casual’ use – or the recreational collection of rocks, soils, minerals that have a negligible impact on federal land or resources,” Udall’s office said in a statement to the Journal. “Mining on public lands would otherwise largely continue as it does today – just with royalties and reclamation fees to pay for cleanup and to make sure companies are paying their fair share to use the American people’s public land.”
The NMA’s Burke says the mining industry in the U.S. already pays between 40% to 50% of earnings in federal, state and local royalties, taxes and other fees to benefit the local communities where mining operations take place and to the U.S. federal government. She said that in 2017, domestic mining activity generated an estimated $17 billion in federal, state and local taxes that supported direct, indirect and induced taxes of $42 billion.
“Adding additional punitive federal royalties will push the U.S. beyond the upper limit of the range in effect in other countries, significantly impairing our global competitiveness and making investments in the U.S. far less attractive,” she said, adding that the domestic supply chain provides minerals for consumer and industrial goods, as well as national defense. “Inevitably, such measures would increase our reliance on foreign sources of minerals, which is already alarming, creating additional supply chain vulnerabilities for the U.S. manufacturing, energy, infrastructure and defense industrial sectors.”
Burke agrees that mining is not appropriate on all federal lands, such as national parks and recreational areas already protected from mining.
“In fact, new mining operations are already either restricted or banned on more than half of all federally owned public lands,” she said. “Unnecessarily restricting access to additional federal lands is unwarranted given that existing laws, including environmental requirements and land use planning, and historic and cultural preservation processes, effectively protect special areas.”
It’s also important to note that the royalties would be implemented on a “prospective basis,” meaning they would apply to mines that begin operation after enactment of the act. But the reclamation fee would apply to both existing and future mines.
Grijalva’s bill is already set to be voted on in the House in April.
It requires royalties to be paid on the gross income resulting from mining on federal land, creates a Hardrock Minerals Reclamation Fund to be funded by royalties, ends the public lands giveaway and encourages local autonomy over mining, according to a news release.
New Mexico Rep. Deb Haaland (D) is a co-sponsor of the bill.
“It is long past time to reform our outdated mining laws,” she said at the same May 2019 news conference announcing the legislation. “This bill will ensure taxpayers don’t have to foot the bill to clean up pollution caused by mining companies, require meaningful tribal consultation, and update existing laws to preserve sacred spaces and protect public health and the environment.”
The resolution passed by the County Commission calls on Congress to pass Grijalva’s House bill and resolves that “reforming the 1872 Mining Law would help protect our public lands, water resources, wildlife and fish populations, and recreational activities that support our local economies from mining activity and pollution; and includes robust stipulations for consulting with local governments in the planning process of hardrock mineral leasing and extraction.”
Skopos Labs, a New York AI platform that predicts the impacts of policy-making on companies and markets, gives Grijalva’s bill a 3% chance of passing.