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way, I believe, there wouldn't be a lot of uncertainty that we could avoid and costly delays that have hampered the mining industry under the current regime. This is the premise of the planning pro visions in the pending bill, yet, at the same time, you and others on

1337 this panel have expressed a great deal of concern with this very same planning section.

Do any of you have any other means that you can suggest by which we can achieve this goal, that of providing industry with a greater up front understanding of what some of the rules of the game will be rather than waiting until it is too late or until the plan of operations progresses and then find that the industry is

tu faced with a lot more than it ever imagined?

Mr. GRANDEY. I might respond in this way, that the information that either we deal with or our competitors deal with or certainly that the agencies and the public deal with is dynamic, that it changes, and the notion that was mentioned earlier that, after all of these years, we have got the GS and the BLM and the Bureau of Mines, don't they know where the minerals are? Aren't they aware of how they occur and the economic value? Well, nothing could be farther from the truth. Yes, we know where historic mining areas are, but every day there is a different theory, there is a different way of approaching it, there is different metallurgy that is developed, different techniques for recovery that may make an area that was once thought to be barren a highly valuable lease source.

Likewise, you may identify today or in the future an environmental value, a particular species that heretofore was unknown. So information changes that we all have to deal with, and if you try to lockstep or link the two processes the evaluation o mining as well as the development of land use plans then it seems to me that you put them into sort of a box where it becomes almost impossible for that certainty to be developed

I think it is very true that the two ought to proceed in parallel we ought to get as smart as we can on the land use planning side, and we ought to go through the process and go through the amendment process that you go through once you discover new facts, but it ought not retard or slow down the ability of the mining industry to explore and develop in light of the basis of knowledge that we have at the time that you are asking them to go forward. Mr. RAHALL. Does anybody else wish to comment?

Mr. LIVERMORE. I would just like to mention the compensation which could result from the right to say no is something that hasn't been discussed here today, and that is of great importance. The law is a little unclear on that, and, in any working out of any procedure, that should be thought through because there have been cases where, for example, a single drill hole has proved the potential for a very high mineral value, and if that occurs after some event where the operation is subject to the right to say no, that can be compensable and should be thought about.

Mr. RAHALL. Your association, Mr. Livermore, has been the chief advocate of eliminating the concepts of pedis possessio and discov. ery. However, as you stated, the vast and overwhelming majority in the mining industry support the retention of these concepts.

Frankly, I share your belief that a more straightforward system that says, "Stake your claim, pay your rental, make your annual Foi that simple.


filing, and the claim is yours safe from challenge, so long as you are diligently pursuing its development provides greater security of tenure," in my opinion, especially for the little guy, and that is what my basic goals and tenets in this effort have been. It is just

Yet, over 166 witnesses later, I have to say that few agree with that position. So what I am indicating is that I am just about, I guess, ready to walk away from the provisions of the bill that eliminate pedis possessio and discovery. This is really not a public

interest matter that I can see, and if industry wants to live with 1272 them, then so be it that the industry live with them.

Mr. LIVERMORE. Sure. Mr. Chairman, our group still feels exactly the same on that. I think that even in the testimony so far today it is noticeable that everybody has talked about discovery and they

haven't a lot of people have talked about discovery and they i haven't broken the problem down into discovery before patent and

after patent, number one, and against third parties and the Government, and I think, despite the string of witnesses you heard supporting discovery, a lot of them are thinking about discovery on patent--that is sort of their Bible and our group does support discovery for a patent.

But if you really get experienced mining people, particularly in the exploration field, and ask them what they think of the doctrine of pedis possessio, you may get a different answer from what you do at the hearings, and I would suggest in that connection, Mr. Chairman, you read our treatise drawn up by Ken Lee which tells you the horror of this doctrine, which is not a Federal statute. It is just a State grown, you know, hodge podge in different States and requires that every miner has to be in continuous possession of every claim. That might have been fine in the gold rush days when you had one claim. Now, you have got to have at least 10 or 20. So it is not a good doctrine, and we think that you have made a lot of good efforts to protect tenure, and we hope we don't change it.

Mr. RAHALL. Dennis, do you wish to comment on that?
Mr. WHEELER. I don't think so, Mr. Chairman.
Mr. RAHALL. Paul. Jerry.

Mr. GRANDEY. At the risk of a little bit of a hearsay, I think change is always difficult, Mr. Chairman, and, particularly for this industry, change is something that, you know, we have fought from time to time, I guess. But your efforts to revise, through title I, and eliminate some of those concepts I think have gone a long way to making it a better bill, one with more predictable tenure and more predictable title.

As I say, title I is not perfect in our estimation. I think that in. volving the Bureau of Land Management or the Forest Service in adjudicating private disputes is a mistake. But, if we can get into that some corrections that make it clear that private parties can resolve their own disputes in the State court systems or the Federal court system, not involving sort of the endless bureaucratic delays in administrative procedures, then I think a redesigned system with certainty is better than what we have been living with.

Mr. RAHALL. Well, perhaps I will start walking back in the other direction then. (Laughter.)

I have no further questions. The gentleman from Wyoming, Mr

Mr. THOMAS. No, Mr. Chairman. Thank you.
Mr. RAHALL. The gentleman from Indiana. No?

Gentlemen, thank you very much, and, again, I express my deep 义 appreciation for the very constructive manner in which you have worked with me and with the staff of this subcommittee.

Our next panel, No. 5, is composed of Andy Kerr, the director of Conservation, Oregon Natural Resources Council, Portland, Oregon; Michael Medberry, public lands director, the Idaho Conser vation League, Ketchum, Idaho; Louisa Willcox, program director, Greater Yellowstone Coalition, Bozeman, Montana, who gave me a very kind introduction when I spoke to the GYC; David Kim Wilson, Montana Environmental Information Center, Helena, Montana; and Mr. Bill Martin, vice president, The Cabinet Resource Group, Trout Creek, Montana.

Lady and gentlemen, we welcome you to the subcommittee, and
you may proceed in the order which I called you.

Mr. KERR. Thank you.

My name is Andy Kerr. I am with the Oregon Natural Resources Council. We are a coalition of conservation, sportsmen, recreation, and commercial concerns, and we also have 6,000 individual members. I want to thank the Chair for the opportunity to testify today and compliment the Chair on the fine effort of H.R. 918. Reforming the Mining Law of 1872 is long overdue, and my writ

nony recites four examples in my home State of, I would argue, the abuses of patenting, where lands of high public value have been patented and, in some cases such as Rock Mesa and the Three Sisters Wilderness, the Government turned around and im mediately spent $2 million to get back what it had just given away under the Mining Law of 1872, and I cite some other examples in there of ongoing situations where patenting is ongoing and it is probably going to result in funds being appropriated under the Land and Water Conservation Fund, or something like that, to buy back lands given away by this archaic law.

I would like to address the concern earlier that environmental. ists are being accused of saying, "Mining free by 1993." I have not heard that. I think it has gotten confused over the years, and the phrase actually probably was, "Mine free by 1873," and that is 1873, and that was probably the slogan of the mining industry 120some years ago, and they were successful in that. So I think the slogan is left over from an earlier era.

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The examples in my testimony show that they are in national recreation areas, they are in wilderness areas, they are in wild and scenic rivers, areas that Congress has recognized as having important public values and has sought to protect. The previous claims that were in there, now they are to be patented, and it is going to cost us a lot of money to get those lands back.

In Oregon, we were blessed with poor mineralization, but recent technological advances have changed that, particularly cyanide heap leach mining, and so we face a gold rush in southeast Oregon of something that the State is not well prepared to deal with.

The first mine being talked about at Grassy Mountain would be as wide as the National Mall between Independence and Constitution Avenues and twice as deep as the Washington Monument, a hole that big. Over 1.5 million pickup loads of earth would be moved to yield one pickup load of gold. There are a lot of environmental impacts associated with that, something not anticipated, I think, in 1872

In Oregon, there are efforts in the State legislature to address this issue, partly in the absence of effective Federal regulation on the public lands. I think, though, that the mining industry, want. ing to leave reclamation to the States, I find that admirable, and I hope they support the law that probably will pass in Oregon this year that will be the most stringent environmental protection statutes for cyanide mining anywhere in the Western States. We will see if their allegiance to States' rights hold when they see that final bill, because it is a pretty tough bill.

H.R. 918 is a very significant step forward in terms of mining reform and environmental protection on the public lands, and my testimony deals mainly with patenting, but we are supportive of the other reforms in that as well.

I would like to mention a bit about citizens' suits. Our experience with the Federal land management agencies is, they occasionally have to be sued to get them to obey or to enforce the laws that Congress passes, and so if a law is worth enacting by Congress, it is worth enforcing by the agency, and sometimes the only enforcement mechanism to make the agency behave is a citizen's suit. You might be able to get at them by calling them up on the Hill and embarrassing them or yelling at them, trying to cut off their funds, but often a lawsuit can force the agency to obey the laws that are on the books, so we think that is a very important provision.

We would also advocate, and we are advocating in the State legislation now under consideration in Oregon, to require refilling the pit. In Oregon, I checked the price of coal, and it retails for $130 a ton. Gold retails for about $11.5 million a ton. Now I know the costs of production are different here, but there must be enough margin in there to refill the pits. If you can do it for coal, you ought to be able to do it for gold.

In terms of giving the agency authority over its own lands, the Oregon dunes situation is one where I think, because there was split jurisdiction, with the Bureau of Land Management holding the authority over the subsurface, that the Government dropped the ball. The Government was looking for a land exchange, and the lands they were proposing for exchange they do not do an emergency withdrawal. That is a rather cumbersome process in the first place, and, as a result, the mining company went out and claimed those lands as well. So they claimed the very lands the Goversment was proposing to exchange.

In terms of how to decide what is the proper role of the agency in determining whether mining is appropriate in certain areas, I think we can look at a somewhat parallel situation with timber Yes, the trees are on the surface and you can pretty much teil what you have there, and that is not always the case with hardrock minerals, but there are two parts to suitability determination that the Forest Service goes through or the Bureau of Land Manage ment goes through. They first determine what is out there the timber-and that is easy to do with timber, and I yield that its not easy to do with hardrock minerals. But after that, they determine whether irreparable damage would occur if that logging goes forward, and so they make a determination on suitability, and so we could do a similar determination in terms of mining. If irrevers ible environmental impacts and unacceptable environmental effects were to occur, the agencies could say that is a place inappropriate for mining.

Now this is somewhat linked with the amount of reclamation or restoration that goes on. If we are talking not ever returning that site to a productive use again, whether it is wildlife habitat or timber production or what have you, then I think that balancing test needs to weigh those long-term effects. But if you have a high reclamation standard that can return that land to a productive use, then you get into the question of environmental impacts per haps being more temporal in nature as opposed to being permenent. So I think there are ways to analyze the suitability of public lands for whether they should be open for mining or not.

In conclusion, I would like to note that Congressman De Fazios bill recently introduced, H.R. 2614, we think is a very good bill, and we hope that the subcommittee and the full committee will give that full attention as well. We think there are some very good concepts in there that deserve the attention of this committee.

So, in conclusion, what we have out there is lots of time bombs in wild and scenic rivers and wilderness areas that are subject to patenting, and the public has expressed its interest in protecting those lands, and the Congress has responded to that, and so we need to diffuse a lot of those time bombs by getting rid of the abuses of patenting

So I would hope that the subcommittee undertakes comprehensive reform now. I think the Mining Law of 1872 may have made sense in the latter part of the nineteenth century, but it has been an environmental disaster in the twentieth century, and we need a law that makes sense for the twenty-first century.

Thank you.
[Prepared statement of Mr. Kerr follows:

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