News Roundup: Mining law reform?

Plus: Aridification Watch; Tragedy of the Commons; and more

In April 1887, a man named Olaf Arvid Nelson, aka The Mighty Swede, staked a 1,500-foot by 300-foot lode mining claim on public domain land on the slope of Bonita Peak in the mountains of Southwestern Colorado. It was a painless process: He simply put a marker in the ground at the appropriate spot, filed its location at the land office, and paid a paltry fee. Nelson called his claim the Gold King.

Nelson died four years later, so his widow, Luisa, paid a few bucks to the land office to patent the claim—a euphemism for taking ownership of what had been public land (land that was stolen from the Utes). She sold it to East Coast investors for $15,000, who developed the claim, staked several more in the area, and bought out other mining claimants, so that before long they owned most of the mountainside. By the early 1900s, the investors were raking in at least $1 million per year in profit from the Gold King Mine. They never paid a cent in royalties or fees to the federal government. 

Eventually the Gold King faltered, and by the late 1920s, after its owners had turned the mountain’s innards into something resembling Swiss cheese, stripped of most of the ore, it went dark, becoming a sort of zombie mine, the waste rock and mill tailings left out in the open to leach into the streams and the adit left unattended. Finally, in August 2015, the whole story reached a Tang-orange-tinged climax when the Gold King mine blew out, sending 3 million gallons of acidic, heavy-metal-laden water into the Animas River watershed, and leaving the American taxpayers to foot the response and cleanup bill. 

The scenario was repeated tens of thousands of times across the Western U.S., to varying degrees, leaving behind a massive mess. And it was all made possible by one of the largest, most egregious, and long-running corporate welfare schemes in the Western United States, also known as the General Mining Act of 1872. The most stunning part is this: The Act is still in effect, virtually unchanged, even as a new wave of hardrock mining—for minerals used in electric vehicles, batteries, and so forth—is crashing down on the West. Is reform finally on the horizon? 

Today’s copper, lithium, vanadium, or cobalt prospector can stake a claim on public land just as easily as Nelson did (easier, in fact, since they can file online, without having to hoof it down to the land office). And just like the capitalists who purchased the Gold King, they can extract billions of dollars worth of minerals that belong to the American public without paying a cent in royalties. That stands in contrast to the General Mineral Leasing Act of 1920, which requires oil, natural gas, and coal producers to go through a slightly more rigorous process to obtain leases on federal lands and then pay a 12.5 percent royalty on the minerals extracted to the government. 

For decades, conservationists, politicians, and taxpayer-advocates have tried to reform the hardrock mining law and at least bring it in line with the Mineral Leasing Act. Opposition from the mining industry has kept reform at bay, although Congress did put a moratorium on new patent applications in the 1990s, putting a fragile halt to the mass privatization of public lands, and miners are now subject to far more rigorous environmental regulations and bonding outside of the General Mining Law. 

With Democrats in the majority in both houses of Congress, and a relatively green-leaning president in the White House, mining-law reformers may finally have a chance to get something done. Rep. Raul Grijalva, a Democrat from Arizona, is likely to lead the charge. A couple of years ago he introduced a bill that would have replaced the claim system with leases and imposed a royalty on hardrock minerals, the proceeds from which could help clean up the thousands of abandoned and zombie mines that are polluting the nations streams with acid mine drainage. 

If Grivalva were to forward a similar bill now, it would almost certainly pass in the House, but would face stiff resistance from Senate Republicans. But it has one thing going for it: Sen. Joe Manchin, the Democratic Energy and Natural Resources Chairman from West Virginia who tends to tilt toward industry, and who is considered a pivotal swing vote, has expressed support for reform in the past. After all, his state’s known for coal, so it would make sense that he’d want miners of other minerals to abide by similar rules. 

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Efforts to clean up polluting mines seems to work. That’s according to a new study out of the University of California, Santa Cruz, which looked at four mining-degraded watersheds in California, Colorado, Idaho, and Montana, all of which had been designated as Superfund sites. 

The study combines long-term water-quality monitoring work of researchers in the aforementioned states. And in every case, it appears that water quality and stream health had returned to near pre-mining conditions after 10 to 15 years of extensive cleanup work.

In most cases the problem is acid mine drainage—acidic water that is loaded with toxic heavy metals that flows out of mines indefinitely. And in most of these cases, the only effective mitigation is to collect and treat that draining water, in perpetuity, before releasing it into the stream. The Leviathan Mine in California, one of the subjects of the study, has not one but three such treatment systems, which can be expensive and onerous to operate. Treatment is further complicated when dealing with multiple drainage sources scattered across a large area, as is the case with the Bonita Peak Mining District Superfund site, which includes the previously mentioned Gold King Mine. 

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Environmental and public health advocacy groups are cautiously hailing the New Mexico Environment Department’s proposed rules limiting methane and ozone-precursor emissions from oil and gas facilities, released late last week

The draft rules, released last July, had come under attack due to various loopholes and exemptions for “stripper wells,” which are low-production oil and gas wells. The updated proposal eliminates those exemptions and also requires operators to calculate emissions and confirm them with a professional engineer, perform monthly checks for leaks, and fix those leaks within 15 days. 

Methane is a potent greenhouse gas. Later this week the Land Desk will kick off Methane Madness, an occasional series on methane, what it does, where it comes from, and what is being done to deal with it. Stay tuned.

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ARIDIFICATION WATCH: The water outlook continues to look grim in the Colorado River Basin as spring runoff season approaches. Rivers are running below average levels for this time of year and there isn’t a whole heck of a lot of snow left in the high country to bring the typical late May/early June high waters. High winds across the Colorado Plateau have contributed to the dryness, sent dust into the mountains to melt the snow faster, and fanned the flames of wildfires

The water level at Lake Powell is currently 39 feet below the level at this time last year and just six feet above the all-time low level recorded in April 2005. Water inflows to the reservoir for the 2021 water year to date are less than half of the average for this time of year. Not only will this affect water deliveries to water users in the states reliant on Colorado River water, but it is also likely to dim hydroelectricity output from Glen Canyon, Hoover, and other dams around the West.

This illustration from the Central Arizona Project sums up the situation: 

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WHAT WE’RE READING: Michelle Nijhuis has an excellent piece in Aeon about the “Tragedy of the Commons,” a notion forwarded by ecologist and biologist Garret Hardin in a widely-read 1968 essay. Hardin argued that self-interested humans could not be trusted to have nice things, like public spaces or commonly shared resources, and, left to their own devices, would quickly lay waste to them. Better to privatize everything, he argued, so that protection of the resource and self-interest would walk hand-in-hand. 

Clearly, that doesn’t work: Just take a look at the 1872 Mining Law, which was really a massive transfer of “the commons” into private hands, resulting in the ravaging of those lands. 

Nijhuis debunks Hardin’s theory by way of Elinor Ostrom, a political scientist and contemporary of Hardin’s, who found all kinds of examples, worldwide, of people working together to preserve shared resources, while building an economy. Nijhuis writes:

These communities had found ways of both preserving a shared resource – pasture, trees, water – and providing their members with a living. Some had been deftly avoiding the tragedy of the commons for centuries; Ostrom was simply one of the first scientists to pay close attention to their traditions, and analyse how and why they worked.

Nijhuis’ essay draws from her new book, Beloved Beasts: Fighting for Live in an Age of Extinction, which is on our upcoming reading list and should be on yours, as well.

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And, finally, from the realm of the weird: A herd of anti-vaccination and anti-mask activists gathered in Moroni, Utah, last week to burn a giant, wooden syringe—Burning Man-style—to protest what they called medical tyranny. The “Night of Liberty” was attended by, among others, Ammon Bundy—known for leading the armed takeover of a national wildlife refuge—and Utah State Rep. Phil Lyman, who was convicted for leading an ATV-protest down a closed-to-motorized-vehicles trail in Recapture Canyon in 2014. 

Lyman, Bundy, and many others of the Sagebrush Rebel ideology, which advocates for local control over public lands, have shifted their attention to the measures put in place to stem the spread of COVID-19. They have railed against mask mandates, vaccines, and any other related rule or regulation or even suggestion from local, state, or federal officials. Never mind that San Juan County, where Lyman lives, has seen 1,903 COVID-19 cases thus far and 37 deaths—in a county with a population of just over 15,000. 

Watch the video by Eric Moutsos, the event’s organizer, if you dare:

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