SIERRA SIERRA 408 C Street N.E., Washington, D.C. 20002 (202) 547-1141 Senator Jeff Bingaman, Chairman Subcommittee on Mineral Resources Development and Production Washington, DC 20510 Dear Mr. Chairman, We are pleased to respond to your request to provide were sent to the Mineral Policy Center, so to avoid duplication 1) What do you think the most critical challenges are for federal land managers in the reclamation area and in terms of environmental protection and mitigation during the life of a mining operation? At the outset we have to underscore that the most crucial Once the decision is made to allow mining, priority goals for the 2) Should we consider using some of the fees generated by this "When we try to pick out anything by itself, we find it hitched to everything else in the universe." John Muir National Headquarters: 730 Polk Street, San Francisco, California 94109 (415) 776-2211 Yes. Unreclaimed mine pits litter our countryside in historic mining districts, and often result in acid drainage into the watersheds and the release and transportation of heavy metals and other toxics. 3) Do you generally agree with the General Accounting Office's figure of $284 million as the total cost to reclaim 281,581 acres of disturbed land? This figure roughly equals $1000 per acre, which would be a significant help but may be too low in some cases. 4) Please provide information on the effects of using cyanide in heap leaching operations. The short-term problems with cyanide leaching generally center on poisoning wildlife. Over the long-term, such operations can generate significant hazardous waste products which can get into ground waters. 5) The validity of the March 1989 General Accounting Office report of the Mining Law has been questioned. Are the examples of the federal government selling lands for $2.50 or $5.00 per acre that later bring much higher prices unusual? 0 Do you agree with the conclusions of the report? On While the examples used by the GAO are clearly startling, it would be even more unusual to find land that could be sold for only $5.00 an acre or less. The GAO report garnered lots of media attention throughout the country, but the examples given were not effectively discounted or denied. Another means to judge the value of mining claims is the cost to the federal government to buy them back when it is in the public interest to acquire them for national conservation units. Inquiries to the National Park Service would probably reveal considerable detail on this point. We appreciate this opportunity to comment. Sincerely. Michael McCloskey Below you will find the answers to the supplemental list of questions submitted to MEC on June 14, 1989. The response has been prepared by the Minerals Exploration Coalition We thank you for this opportunity. 1. Please describe the current test for determining "discovery" of a • Enclosed please find an article which is our answer to this question. The article is entitled "The la. Is the test applied consistently? • The rigor with which the test was applied in United States v. Pittsburgh Pacific Company, 84 I.D. 282 (1977), contrasted with the liberality with which it was applied in Pacific Coast Molybdenum Co., 90 1.D. 352 (1983), leaves the claimant uncertain about how the rule will be applied in any particular case. It should be noted however, that in Pacific Coast Molybdenum Co. the Department of the Interior was not contesting the claim, but defending its own decision to issue a mineral patent. Thus, the only consistency seems to be that the government almost always wins. 2. How does the uncertainty inherent in the current test for discovery • The miner never knows until after a contest whether he has a valid claim or not. Even if a claim is • Diligent occupancy or "pedis possessio" is required to avoid over staking. There is continued risk of overstaking based on the assertion of lack of discovery. Senator Jeff Bingaman, Chairman Page 2 • Without discovery, a withdrawal, even if "subject to valid existing rights," results in a loss of the claim. • It is impossible to obtain title insurance on an unpatented claim. • Because the miner cannot obtain title insurance, it is impossible to borrow money using the unpatented claim or its mineral deposit as collateral. Money may be borrowed, but loans are made solely on the quality of the borrower. This means that the "small miner" or the junior mining company are generally unable to secure debt financing. 3. What is significance of the Amax v. Mosher decision? • Judge Bruce Thompson, who heard the case, indicated that he considered the case insignificant by declining to publish his opinion. ⚫ The industry walks on thin ice with respect to the validity of unpatented claims. One never knows when the ice will crack. • Contrary to the myth perpetuated by the environmental community, mere staking of a claim does not give the locater a property right enforceable against rival locaters, let alone against the U.S. Government. • Even between rival claimants, discovery is the test of the validity of a claim. • If negotiations fail, only the courts can resolve disputes between rival claimants. • Many claims are located and held as though they had valid discoveries. Only upon judicial review by a court is a miner able to determine if his claim has a valid discovery. Even when judicial review is for the purpose of determining priorities, there is a risk that neither claimant has a valid discovery. 4. How many claims are challenged by private interests, i.e. a competing locater? • Challenges are a relatively common occurrence. Typically in disputes of priority, the right of the senior locater is recognized by the junior locater, regardless of the quality of the discovery. Disputes based on assertion of lack of discovery and, sometimes, assertion of failure to do assessment work are more complex. The burden of negative proof is on the junior locater. The more exploration and/or mining activity in an area, the more likely it is that there will be layers and overlapping of claims in the area. The degree to which claims are challenged depends on the level of interest in an area. Because exploration risk so dominates other risks, there is little effort in most situations to clear an area of conflicts. Usually there is a willingness to "let sleeping dogs lie" until the potential of an area becomes more clear. If good potential for the existence of a valuable deposit can be demonstrated, more effort will be devoted to clearing up title questions. The process typically includes surveying of boundaries, identifying gaps, over laps, and fractional interests. 4a. What are the results of the challenges? • Most challenges are resolved by negotiation. • Title may be cleared by judicial remedies such as quiet title actions. • Where significant values are involved, rival claimants look to the courts for relief. |