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with Locke but with the holdings of a trilogy of recent Supreme Court decisions.

CONCLUSION

I want to thank you for inviting my participation in today's hearing and I want to assure you of my willingness and availability to pursue these issues with the Committee and its staff in the future.

We find most of our nation's mineral wealth in public lands. To no small extent, this store of wealth is what has

made this an industrial nation. Mining underpins our industrial might. But to remain strong, we must husband these mineral resources carefully, and we must be able to develop these minerals efficiently.

Proponents of the bill charge certain abuses of the mining law and put up this measure as a remedy for those alleged abuses. Adequate remedies for all of the perceived abuses can either be found in existing law, or can be provided by improved enforcement of the existing law. The bill goes far beyond the perceived abuses of the mining law. It is sweeping legislation which will reshape the entire mining industry. There already has been a great deal of discussion of these alleged abuses. The General Accounting Office has issued reports calling for revision. The American Mining Congress has submitted a rebuttal to the GAO report. Accordingly, this statement addresses the bill.

policy.

The bill is a dramatic departure from existing law and The bill would repeal the Mining Law and replace it with an entirely new land tenure system. It is far more sweeping than is necessary to address perceived abuses of existing law. This bill would have an enormous economic and strategic impact. It needs additional study of the economic

impact, and I want to endorse the American Mining Congress in

its request for additional hearings on the bill, especially

field hearings in the public lands states.

Senator BUMPERS. Mr. Alfers, let us hear from Mr. Leshy first. STATEMENT OF JOHN D. LESHY, PROFESSOR OF LAW, ARIZONA STATE UNIVERSITY

Mr. LESHY. Thank you very much, Mr. Chairman, and Senator. In view of the hour I will be very brief.

The mining law-I think we have heard a lot today about how the mining law is an obstacle as far as protecting other values of the federal lands are concerned.

We have heard a little bit, but probably not enough about how the mining law is an obstacle to efficient exploration and development.

The dialogue with Senator McClure that took place a few moments ago, I think, gets at some of that.

There is an awful lot of red tape. I take great issue with Mr. Alfers' characterization of the law that has developed under the mining laws being predictable and certain. I think it is, frankly, anything but that.

And there is a risk here when we talk about reforming the mining law of carrying all of that 117 years of baggage with it into a new reform act.

It comes up in the question of grandfathering existing claims. It also comes up when we talk about a discovery concept, such as in your proposal.

I could not help thinking when Congressman Craig trotted out the 15 foot chart of decision points under the mining law, I am serving on an oil and gas, on-shore oil and gas leasing committee set up by the reform act a couple of years ago for the National Academy of Sciences.

We are working with a flow chart under that law that is about a foot long. Instead of 15 feet I think you could then go, that suggests you could go to an oil and gas type of reform act for the mining law, and save 14 feet of decision points.

I say that only half in jest, because there is always a risk when you tinker with the law. And the mining law has been tinkered with a good deal over the last 117 years. There is always a risk when you tinker with it that you are going to carry into the reforms all of the baggage of the old law, such as discovery which has been litigated probably 5,000 times over the last 117 years, what it

means.

When you incorporate a discovery concept into a new law, you may create some of the same problems and uncertainties and difficulties.

Let me talk briefly about some environmental issues. Mining will never be a clean industry, but the industry's track record, by and large, is improving. I think that, without question, everybody who has looked at a modern, successful, profitable mining operation, the mining industry, by and large, has tended to do a pretty good job from an environmental standpoint, although it is not uniform.

The marginal operations, most local, BLM in force, and people will tell you, the economically marginal operations are the ones that cause the greatest environmental difficulty.

And in that sense it is really silly, I think, for the BLM to have this discretionary bonding policy that has created the problems that we have heard a lot of talk about.

We are now seeing in the West in lots of places, tremendous cleanup costs being incurred from the past mining operations. The Super Fund law, for example, is being used in many places to require the expenditure of millions and millions of dollars to clean up these problems.

The United States government, by the way, runs a substantial risk of being a responsible party under the Super Fund law for unpatented mining claims, because it still holds title to the land. And that, by the way, is one great difficulty I have with Senator McClure's idea about a reversionary clause.

That is, if the government gets the land back, after the mining is complete, I would think the industry would like nothing better than to give the land back to the government if it has got a potential liability problems on up from the standpoint of cleanup.

That is one problem I have with the reversionary idea. The other problem is, I think it is practically impossible to enforce when you have somebody who wants to put the second home subdivision in, or make some other non-mining use of the land.

We have experience with that under the so-called RPP Act, Recreation and Public Purposes Act, which has exactly that kind of reversionary clause.

The United States gives land to local, state and local governments, so long as it is used for certain kinds of public purposes. If it is ever not used for those purposes, the United States gets the land back.

When I worked in the Department of the Interior several years ago, we asked around about whether that had ever been enforced, and the answer was, somebody remembered, possibly once, in 50 years of administering this law, had the United States ever taken land back. Because it had no staff, or no interest in investigating whether or not the land was used for non-mining purposes.

And that gets at one other issue I wanted to address, especially when we are talking, and you have heard a fair amount about abuse of the law, can you put a second home subdivision on a mining claim, or a group of mining claims?

The answer is, of course, no, it is illegal and it has always been illegal. It has been illegal for a 100 years. There are cases going back that far.

The problem is not whether it is legal or not. The problem is, is there a satisfactory process available for policing and for enforcing those existing legal requirements?

And the answer is clearly, of course, that there is not a process for doing that.

The substantial cases we have seen of 30 years of litigation to get somebody to get off a mining claim that they were using for a nonmining purpose. There are plenty of examples of that.

I must say I was a little bit surprised at all the criticism GAO has gotten today. If the GAO report had been an isolated example of somebody taking a look at the mining law and finding some abuse under it, perhaps, I think, the criticism would be justified.

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