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Testimony of

Andy Kerr
Director of Conservation
Oregon Natural Resources Council

18 June 1991

before the

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Subcommittee on Mining & Natural Resources
Committee on Interior and Insular Affairs
US House of Representatives

Washington, DC

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H.R. 918
"Mineral Exploration and Development Act of 1991"

Introduction

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My name is Andy Kerr and I am the Director of Conservation for the Oregon Natural Resources Council

. ONRC is a coalition of over 55 sportsmen, conservation, education, recreation and commercial concerns interested in the wise use of Oregon's lands, waters and natural resources. ONRC also has 6,000 individual members.

I want to thank the Chair for the invitation to testify and want to complement the fine effort of H.R. 918. Reform of the Mining Law of 1872 is long overdue. I want to testify today about four examples in my home state which illustrate the absurdity of this archaic law.

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Rock Mesa in the Three Sisters Wilderness The first story has a happy ending of sorts. Rock Mesa is a huge outcropping of pumice on the Willamette and Deschutes National Forests. The U.S. Pumice Company sought to exercise its rights granted under the Mining Law of 1872 to exploit the commercial grade pumice. Besides being in the Three Sisters Wilderness, the Pacific Crest National Scenic Trail skirts the western edge of Rock Mesa Prime uses of the pumice were expected to be bunion scrapers and bird beak sharpeners.

After many years of negotiations and administrative appeals, the United States spent over $2 million to buy back what it had given through the Mining Law of 1872. Besides the cash, U.S. Pumice took a large tax deduction, which costs the United States as well.

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The Newberry Volcanoes National Monument While conservationists were preoccupied with the Rock Mesa pumice mining claims, 50 miles to the southeast, another concern successfully patented a small holding between East and Paulina Lakes in Newberry Crater. They weren't really seeking to mine pumice; state and county land use regulations would have clearly prevented it in this environmentally sensitive area. Instead, they were really interested in geothermal development, as Newberry Crater is arguably the hottest geothermal resource in the nation, outside of the Yellowstone region.

Even though similar state and county restrictions apply which will prevent geothermal development, the owner is looking to make a killing by selling the land back to the government now that Congress has designated the Newberry National Volcanic Monument

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page 2. Testimony on HR 918 by Anty Kerr. 18 June 1991

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Kalmiopsis Wilderness and Chetco Wild and Scenic River Located in deep, rugged canyons, among thousands of actes of untouched forest, giant trees, rare plants, positively clean and clear water—the Upper Chetco River is a storehouse of the natural beauty and biological diversity of the Siskiyou-Klamath region of south west Oregon. You'd be hard pressed to find a better example of wilderness values worth visiting and protecting, a fact which Congress has recognized by designating the Upper Checco a Wild and Scenic River and the area around it the Kalmiopsis Wilderness.

But there are holes in both the Wild and Scenic Rivers and Wildemess Acts-holes big enough to drive bulldozers, dump trucks, and gravel dredges through. The holes are 2400 acres of mining claims on the Cherco River bottom, filed decades ago before Wildemess designation in 1964 or Wild and Scenic River designation in 1988. Seventeen miles of mining roads have already scarred the area's steep, fragile canyons. Now full-scale gold mines threaten several of the Chetco's virgin gravel bars. The owner of the larger group of claims will soon attempt to patent his claims in order to operate with even less environmental oversight Once the claims are patentert for as litle as $2.50 an acre—the land will become a private inholding in the public's Wilderness.

ONRC and others are urging acquisition of the mining claims perhaps with Land and Water Conservation Fund monies and the nation will have to pay far more than $2.50/acre.

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Oregon Dunes National Recreation Area The North Spit of the Umpqua River, due west of Reedsport, is one of the wildest and most endangered strips of coastal dunes on the Oregon Coast Habitat for many rare and sensitive species of plants and birds, the North Umpqua Spit is now itself threatened by the sale of the heart of the area to a sand mining company. Congress included the threatened area in the Oregon Dunes National Recreation Area in 1974.

In fall and winter, thousands of shorebirds and numerous species of migrating waterfow! including tundra swans rest and feed at the North Spit The western snowy plover, which has been listed as a threatened species in this state by the Oregon Department of Fish and Wildlife (and recenuy found by the US Fish and Wildlife Service to be "warranted, but precluded" from listing under the federal Endangered Species Acl) nests on the beaches here. Bald eagles (federally threatened), peregrine falcons (federally endangered), osprey and northern harriers hunt and fish above the rich, marshy plains of the Umpqua's estuary on the east side of the spil

No less interesting are the rare plants which live here, a group which includes insectivorous sundews; two species of orchids; and clubmoss, a rare and primitive plant Small ponds and deflation plain meadows, including the Threemile Creek area on the extreine north end of the spit (which has been proposed as a Research Natural Area) also hold a variety of wildlife and floral treasures. This diversity persists in part because exotic European beach grasses which cover (and form) the oceanfront dunes have not yet invaded much of the dunes that is dry sand.

In 1979 the North Spit of the Umpqua was recommended for Wildemess protection by the US Forest Service (the managing agency). Unfortunately, Congress failed to act on that recommendation, and much of the North Spit was opened to abusive forms of off-road motorized recreation. But the worst was yet to come. Coosand Corp held an old claim on 780 acres in the middle of the spit, and in the summer of 1989 the company moved to parent the land. Over the objections of Congressman Peter DeFazio and other concerned members of Congress, the BLM (which holds jurisdiction over the mining claim), issued a patent on October 10 which deeds the 780-acre parcel to the Coosand Corp.

The Forest Service is trying to negotiate a land exchange with Coosand Corp. to get the land back. Failing this, Congress will either have to corne up with several million dollars to buy back the land or lose it to Coosand forever. Either way the public loses, but hopefully the North Spit's incredible ecological and recreational values will be protected.

When the Forest Service and the Bureau of Land Management, which administer mineral se sources on national forest lands, proposed to exchange the sensitive claims for some similar sand dunes outside the Oregon Dunes NRA, the agencies failed to withdraw the trade lands from mincral entry—and CooSand filed claims for those sand dunes too!

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page 3. Testimony on H.R. 918 by Andy Kerr, 1: 1991

I would suggest that this foul-up was Je, in part, to the primary land steward having to share concurrent jurisdiction with the Bureau of Land Management.

Cyanide Heap Leach Mining Threatens Much of Southeast Oregon

Until recently, mining has been a relatively minor environmental concern in Oregon. The states mineral deposits are not highly concentrated, and thus not very attractive to miners. But a hugely profitable mining technique called cyanide heap leaching, which permits the extraction of scattered, microscopic amounts of gold from large bodies of ore, has spurred a genuine gold rush in castem Oregon--and will bring tremendous damage to the area's land, water, and wildlife.

In heap leaching of gold, a cyanide solution is sprayed over enormous mounds of orc, collected in extensive holding ponds, and refined. For the highly capitalized, multinational mining corporations that can afford to use it, cyanide heap leaching is extremely lucrative, extracting gold worth $400 an ounce at a cost of only $200 an ounce. At the Grassy Mountain site that is likely to become the first cyanide heap leach mine in Oregon, Adas Metal's profits have been projected at $25 million per year over the seven-year life of the mine. Cyanide heap leaching makes it cost-effective to "process" 50 tons of Earth for each ounce of gold.

But extracting such tremendous amounts of ore has a pretty big impact. Grassy Mountain, three and a half miles north of the Owyhee Reservoir, will be levelled and replaced with a pit 2000 across and 800 to 1000' deep—as wide as wide as the National Mall between Independence and Constitution Avenues and nearly twice as deep as the Washington Monument. Once the ore has been thoroughly soaked with cyanide, these heaps are the toxic waste Superfund “clean up" sites of the future. Over 1,500,000 pickup loads of Earth will be moved to yield one pickup load of gold

It is now feasible to use cyanide heap leaching technology almost anywhere, including the Oregon Cascades. Over 65,000 claims have already been filed in southeastern Oregon. These claims are concentrated in Malheur County.

Federal regulation of mining on federal public lands is essentially non-existent. If Oregon is not going to be ravaged by literally

thousands of open pit mines and cyanide-tainted piles of earth, state regulation that fully protects both the environment and public health and welfare must be enacted and enforced.

But the legality and effectiveness of state regulation is questionable. The Mining Law of 1872 provides an extremely forceful mandate to mine the federal lands. It leaves little effective role for the states. The Oregon Legislature is considering legislation, and the Oregon Department of Environmental Quality has proposed administrative rules to deal with this expected crisis. I am optimistic that Oregon will soon pass the most stringent environmental protection statutes ever chacted in the Westem States to deal with cyanide mining.

The problem is that, while it is theoretically possible to do cyanide heap leach mining "right"— assuming you don't mind details like deadly cyanide being hauled on highways, big holes in the ground, and lots of water and energy being diverted to mining—it has never yet been done correctly. State-of-the-art control technology routinely fails. Barriers and leach pad liners leak when new. Once the gold is gone, little incentive remains to monitor the toxic waste pile for the next century or two.

To maintain the federal shield for mining against state regulation provided by the 1872 law, most mining companies won't be patenting their lands. When they are done, the federal government will simply own some more toxic waste sites.

Specific Comments on H.R.918 1. H.R. 918 is a very positive step forward toward significant mining reform and environmental protection of the public lands. I've spoken today of the costs of patenting public land. H.R. 918 would ensure that expenditures of public funds to buy back what has been given away would no longer be necessary.

page 4, Testimony on H.R. 918 by Andy Kerr, 18 June 1991
2. The citizen suit provision of H.R. 918, to allow the public to enforce the law when the
Forest Service or Bureau of Land Management can not or will not, is most important. If a law is
worth enacting, it's worth enforcing.
3. ONRC is also in support of giving the Forest Service full authority over hardrock mining
on the national forests.
4. To make H.R. 918 the comprehensive mining law reform necessary, the bill should be
strengthened in several ways. Let me give two examples.

a. Refilling the Pits. In Oregon, coal retails for $130/on. Gold retails for approximately $11,520,000/on. I know the costs of production are different, but there must be enough margin to refill the pits, to allow the land to obtain some productive use again.

b. Agency Discretion. The land management agencies should be allowed to determine whether such mining is in the public interest. Such decisions should be based on guidance established in land management plans. Until the agencies have equal jurisdiction over the surface and subsurface, good land management is not possible.

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Conclusion Although, not a subject of this hearing, H.R. 2614, the "Mining Law Reform Act of 1991" contains many features of concem to the environmental community. It is an excellent effort upon which to build. It is companion legislation to S. 433, mining law reform introduced by Senator Bumpers. In my opinion, H.R. 2614 is the best mining law reform legislation yet introduced in Congress. I hope the subcommittee and the full committee will give it the most serious attention.

Thousands upon thousands of mining claims in Wildemess Areas, Wild and Scenic Rivers, National Recreation Areas sit like unexploded time bombs, waiting for the moment when it becomes oconomically feasible to mine them

The 1872 Mining Law also requires that a claimant spend at least $100 a year to maintain a claim. That was a lot of money in 1872, but not today. That claimant would have to spend about $1100 today. If no other reforms were made, making a cost of living adjustment and requiring those who patent to pay fair market value would go far toward eliminating abuses.

Many miners, who actually do want to mine, are choosing not to patent their claims now, because unpatented claims on federal lands are effectively shielded against state mining regulations. As well, the federal govemment requires no royalties or severance taxes. It's a win-win situation for the miners, and a loss-loss for the land and the American people.

The time for comprehensive reform is now. The 1872 Mining Law may have made sense in the latter part of the 19th Century, but it has been an environmental disaster in the 20th Century. Please pass a mining law for the 21st Century.

the th Mr. RAHALL. Mr. Medberry,

6. 2 & X, B

Mr. MEDBERRY. Mr. Chairman, members of the subcommittee, my name is Mike Medberry. I am the public lands director for the Idaho Conservation League. ICL is the only statewide grass roots organization in Idaho dedicated to the preservation of Idaho's wild lands and water quality, and, once again, I am pleased to be here before you. Thank you very much for holding this hearing.

ICL strongly supports reform of the 1872 Mining Law, and we appreciate your leadership and patience in taking on this difficult task. In our opinion, any meaningful reform must do at least three things: first, eliminate patenting; secondly, give Federal Agencies discretion to turn down and to modify mining plans of operation based on environmental factors; and, third, assure that reclamation will return land to its original condition and productivity. H.R. 918, as written, goes much of that distance.

What I would like to offer is a few Idaho examples of why the law begs for reform. On the first point, granting a patent does not assure that the newly privatized land will be used for mineral production. A recent newspaper ad I have enclosed in a packet that you should have just been given is a good example of mining claims being offered as vacation home sites.

In Idaho, there are hundreds of examples of this opportunistic and inappropriate use of mine claim properties. Almost all of the private inholdings within the Frank Church River of No Return Wilderness, including those on the wild and scenic Middle Fork and Main Salmon Rivers, are former mine sites or claims, and for those few parcels of patented land which are used for mining, all that the patent seems to do these days is short-circuit environmental protection and assure that cumulative effects will not be accounted for.

For example, the Stibnite Mine in central Idaho which originally produced antimony, tungsten, and gold during World War II, was reopened by Superior Mining Company in 1981. It now produces somewhere in the neighborhood of 25,000 to 30,000 ounces of gold per year off its cyanide heap leach pads. In 1980, none of the mine area was patented, but by 1990 approximately 350 acres had been patented by the new owner, Pioneer Metals. The patented area is outlined in red on the map that is the second page of that handout.

An EIS was done in 1981 on the original mining proposal, but the actual plans of operations over the past 10 years did not conform to the EIS preferred alternative. What has been done on the ground bears only a passing resemblance to what we had expected, and there were many good ideas that were never implemented. The Forest Service and other Federal Agencies must be given explicit authority to exercise discretion over mining activities.

The Stibnite Mine was recently sold to Minvin, which has proposed extensive exploration on its unpatented claims and submitted a 1991 plan of operations which includes three new pits and new road construction. Two of the three pits will be built on newly privatized land and, consequently, will receive no NEPA analysis. The third pit, by itself, will require an EIS because it is on Forest Service land, but the environmental impacts will probably come from all three mined areas and their access road.

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