and cinders may be sold from the public lands by the cubic yard or ton; but again, the government may say whether and how a deposit may be mined, and the public retains ownership of the land.

For all the so-called “hard-rock" minerals-gold, silver, copper, uranium, iron, aluminum, nickel, lead, vanadium, molybdenum, tungsten and others whose technological importance was undreamed of in 1872the archaic law remains basically intact. As the President's Council on Environmental Quality has pointed out, it is still a give-away law. "In fact," CEQ said in a 1977 report. "miners have free access" to hundreds of millions of acres of public lands-an area about as large as seven Californias.

"For purposes of public policy and analysis," CEQ continued, "the key word here is free. That is, the miner

It cannot be denied that mining has changed: modern open-pit mines can be miles across, and high-technology exploration equipment probes thousands of feet into the earth. A legal concept such as "access" meant a crude pack trail in 1872; now it means a bulldozed road.

can go onto these lands and drill or dig for copper, zinc, gold, uranium or any other hard-rock mineral, and no permit, license or fee is required of him by the owners' agent-the federal government. If the miner locates a 'marketable' ore body which is unclaimed, he can stake a claim to it. The claim also gives him free use of the land above and adjoining the deposit. Then the miner is free to dig the ore and sell it. He pays no royalty to the owners. The miner can also use surface resources on the claim, such as timber and water, free of charge for mining purposes. On the land, the miner is free to build any structure, a mill, an office, a shed or whatever, as long as it relates directly to the mining operation. No rent is paid the owners."

As the CEQ report noted, the fact is that most mining claims are never mined but are held, instead, for speculative purposes. Individual miners and small mining companies can hang on to claims for years, hoping that a large company will someday do a thorough assessment of the mineral potential there and offer to buy them out. The 1872 law made it so easy to stake a claim (until recently one had only to file a location notice at the nearest county courthouse and post a copy of it at the site) that the temptation to speculate was great.

If the miner applies for a patent from the Department of the Interior, he can seek outright ownership of his mining claim. Once that patent is granted, the land becomes his own. The public loses the land, receiving in return either $2.50 per acre (for a placer deposit) or $5 an acre (for a lode deposit)-a remarkable real estate bargain for the miner.

On private lands miners enjoy no such privileges. In

order to explore on private property they must first get permission from the owner. A fee is often required. And should a mineral deposit be discovered, the miner must then lease the mineral rights, paying a production royalty and probably rent. Or he must buy the land and mineral rights outright at the going market price.

CEQ has pointed out that one small reform was written into the Bureau of Land Management's Organic Act (officially known as the Federal Land Policy and Management Act) in 1976. Section 314 of that law requires that all mining claims be recorded with BLM's local district office within three years or the claim will be forfeited. Previously, when claims and statements of annual assessment work were filed only at the local county courthouse, it was understood that nobody knew how many claims were recorded or current. No one knows now. Estimates run into the millions. The BLM or the U.S. Fish and Wildlife Service could find out how many claims exist in a given area only by digging laboriously through county records. We should know by the end of this year (the BLM is scheduled to release its final mining regulations in 1979, draft regulations having been released in December, 1977), but the new requirement is unlikely to reduce the number of claims. If hundreds or thousands are dropped through failure to refile, others can file on the same areas. In fact, there is some indication that a “claim rush" is occurring to meet the 1979 deadline.

The Organic Act also gave BLM new authority to regulate the construction of mine access roads (but not to prevent access) and to require submission of a plan for operations, as did the National Environmental Policy

Act of 1969 for both the BLM and the Forest Service. These peripheral laws do not alter the basic right of hard-rock miners to locate claims, get access to them and, if they can show a potentially profitable mining operation, obtain a patent giving them outright ownership of the surface of the land and its resources as well as the minerals.

Challenging the validity of a mining claim is a long and involved process, and neither the Forest Service (whose mining regulations were adopted in 1974 but apply only to unpatented claims) nor the BLM has undertaken it except on rare occasions. The claimant can appeal to the courts and delay his ouster for years. CEQ reported that in the government's effort to promote oil shale development-which falls under the 1920 Mineral Leasing Act-in Colorado, Utah and Wyoming, the Department of the Interior spent $1.9 million and more than 100 man years between 1968 and 1974 trying to clear titles to mining claims on the shale lands. Some 50,000 claims were identified, and the effort is still bogged down in the courts.

While the Forest Service can require a mining company to file a notice of intent and a plan of operations, and can try to minimize environmental impact by pressing the miner to include particular precautions in that plan, great damage can still result. The Forest Service does not have the right to say no to a mining companybecause that company, under the 1872 Mining Law, has a right to mine its claims. A fundamental dilemma, as

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posited in the CEQ report, is: "Can the Forest Service compel a mining company to change its plan of operations? In the absence of specific court decisions on this issue, the answer is probably not so long as the Mining Law of 1872 is in effect in its present form. Nor do regulations provide any kind of penalties." Unless the 1872 act is superseded, the BLM will have no more clout when its mining regulations are adopted.

While halfhearted attempts at reform have been going on in Washington, certain states have taken strides toward better regulating of mining on public lands. For example, in 1976 Colorado passed the Mined Lands Reclamation Act, which applies certain procedural regulations to mineral extraction in the state. But state regulations, no matter how progressive their intent, are subject to the whim of state legislatures. Thus, funding for programs to monitor and regulate mining activities is in jeopardy every time the legislature meets, and such laws are easily nullified with amendments and are generally difficult to enforce. While these state efforts are commendable as an interim measure, they are no substitute for federal reform. Plagued by insufficient funds and greatly restricted in their scope, state regulations are at this point more talk than action."

Even more basic to the problem of reclamation regu

lations is the absence of substantive data on reclamation possibilities. The long-term effects of mining are still somewhat mysterious. Damage to our lands and waters by mining by-products (principally tailing toxins) may not appear for decades. But we have learned enough to know that it is not solely the initial mining activity but also its aftermath which casts the specter on our environment.

Unpatented claims are a cloud on the title of public lands in Alaska and throughout the West. Every new public land action or law-even creation of a new national park-has to contain the caveat: "Subject to existing private rights." A mining claim is a private right. It is a cloud that inhibits other uses and often prevents development of needed minerals, as legitimate mining companies find themselves unable to pay the tribute demanded by speculators who got there first with their claims.

One of the arguments certain to be used by the Neanderthal segment of the mining industry this year is that reform would be inflationary. Considering the amount of taxpayers' money and the man hours wasted in trying to cope with the present unmanageable system-and the deterrent effect that system has on production-the precise opposite is true.

The persistent rash of unpatented claims is bad enough, but the pox of patented claims abandoned or used for purposes other than mining is worse. Throughout the West, mining-patent inholdings, many never used seriously for mining, are the sites of homes, summer cottages, ski resorts, restaurants and other commercial enterprises- even junk yards. Many hunting and fishing camps have been established on patented claims, interestingly, at locations controlling access to choice game lands or fishing streams.

In 1974 the Comptroller General of the United States, in a General Accounting Office report to Congress on the 1872 Mining Law, related how one claimant had acquired a patented mill site in Kern County, California, and created a 40-acre junk yard on the site and adjacent mining claims. In another case detailed by the Comptroller General: "A claimant began occupying mining claims on federal lands near Baker, California, in 1944 on which he established the Zzyzx Mineral Springs complex (comprising 12,000 acres).... Over the years, the claimant has operated a health resort, a taping studio for radio broadcasts, a church, and a health food manufacturing plant on this land."

The GAO staff visited 240 randomly selected mining claims in 10 counties in Arizona, Colorado and Wyoming, where some 200,000 claims had been recorded between 1948 and 1972. The findings:

"Of the 240 claims, 239 were not being mined at the time of our visits, and there was no evidence that any mineral extraction had ever taken place on 237 of the claims. Also we found no evidence of mineral exploration work, such as pits, shafts, or cuts on the land, for 146 of the 240 claims. On the basis of our sample results, we estimate that no minerals had ever been extracted on 197,000 of the estimated 200,000 claims."

It hardly makes sense to continue leaving massive areas of public land open to mineral exploration. Comprehensive information concerning mineral availability is already in hand. At present the siting of desirable mineral development is determined as much by international markets, price fluctuations and technological innovations as it is by geological factors. Much of our present mineral production involves developing deposits discovered long ago, but only recently rendered economical by market conditions or technology.

The premise that mineral development is the most valuable use of the public lands is no longer acceptable. Many mineral discoveries today are of lower grade and at lower depths than earlier discoveries, meaning both greater expense and greater environmental degradation. Moreover, non-mineral commodity values and aesthetic and recreational values are much more highly prized today. Not to develop has an increasingly recognized value in the sense that it preserves an important option-a resource for the future.

Unregulated prospecting and mining under the 1872 law have already damaged some of America's finest wilderness areas and threaten others. Here are a few examples among many cited in a study, published last year by the Natural Resources Council of America:

The Union Carbide Company operates a tungsten

A giant tailings pond at the Climax mine. Underground mining began in 1918, open-pit operations six years ago.

mine and mill on Pine Creek seven miles inside the John Muir Wilderness in California's Sierra Nevada. Besides the scar, the operation pollutes Pine Creek.

AMAX owns 1,200 acres in Shoshone National Forest, Wyoming, adjacent to and surrounded on three sides by the Washakie Wilderness. Here the company proposes to operate an open-pit, low grade copper mine with associated road and slurry pipeline across 20 miles of roadless mountain ridges.

The heart of Emigrant Basin, just over the Sierra crest from Yosemite National Park, was left out of the Emigrant Wilderness because of roads serving tungsten mines now shut down because of clean water law violations.

The U.S. Borax and Chemical Company holds 876 mining claims in the unspoiled and extraordinarily beautiful Misty Fjords area of southeast Alaska, an area that President Carter has asked Congress to add to the National Wilderness Preservation System. (In December the President proclaimed a 2.3-million-acre portion a national monument.)

Reform legislation recommended by the Carter administration would repeal the 1872 law and replace it with the permit/lease system that has worked so well

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over the past 60 years for the oil and coal industries and that is also in effect for hard-rock minerals on the acquired lands (lands acquired from private owners or repurchased from states) of the Eastern national forests. Under the administration bill, the Secretary of the Interior could issue an exclusive permit or license to a qualified person or company to explore for hard-rock minerals on leasable federal lands, by competitive bidding if desirable.

A license holder would have a preferred right to a subsequent lease in the same area, but no company would be allowed to control exploration licenses to more than 5,120 acres in any one state. A license would run for five years, and could be extended for another five. (Present claims can be extended indefinitely.) Cost would be $5 per acre per year. A lease would require diligent development and continued operations by the miner. The operator would pay annual rental of not less than $15 a year, plus a royalty of not less than two percent of the gross value of the mine output, or a comparable sum under optional systems of payment. The lessee could use as much of the surface of the land as he reasonably needs for his extraction and processing facilities, but he wouldn't wind up owning the land. There are provisions to help the small miner, the sacred cow always invoked by lobbyists for the big companies, who couldn't care less about the little fellow.

And the Secretary could apply tougher regulations to require that both prospecting and mining be done in such a way as to minimize or prevent erosion, flooding, air and water pollution, damage to fish and wildlife, or threats to public health and safety. If the environmental or social costs of mining appeared likely to outweigh the benefits, the Secretary could simply refuse to lease in a given area-a power he has now in the case of minerals governed by the Mineral Leasing Act of 1920.

HERE ARE four incontrovertible reasons why the

Tobsolete law should be replaced. First, it permits

mining in the wrong places-in areas where wilderness, scenic, recreational or other resource values are more important. Second, it allows unnecessary damage to the public lands even where mining is appropriate. Third, it is unjust to the American people who own the public lands and the minerals within them. There should be a fair return to the federal treasury as in the case of fossil fuels. Finally, it makes proper management of the public lands difficult and costly-even impossible in some areas. CEQ in its 1977 analysis made still other arguments. The old law, it said, fails to provide adequate incentives for expeditious exploration and development. It makes environmental safeguards impossible. It permits disposal of the public lands contrary to the policy of Congress as spelled out in the Federal Land Policy and Management Act, and it discourages competition in the hard-rock mining industry by fostering monopolistic practices, price-fixing and oligopolies

Logic is all on the side of reform. Logic is necessary for editorial writers, who believe in it, and for that substantial segment of the public which thinks the making

of public policy ought to be a rational process. Unfortunately, logic is seldom the basis of congressional action unless it is the singular logic of pressure politics.

For decades, conservationists and thoughtful political scientists have been advocating reform of the 1872 Mining Law. Reform measures have been introduced and referred, always, to the House Committee on Interior and Insular Affairs and to the corresponding Senate panel, now called the Committee on Energy and Natural Resources. These committees, which handle public land matters, are traditionally dominated by legislators from the Western states, where the mining industry is strong. So the bills have gone nowhere because of pressures brought to bear on committee members. In the 95th Congress, the Ruppe Bill (H.R. 5831), which was marked up in the Mines and Mining Subcommittee but not in the full Interior Committee, was actually drafted by the American Mining Congress. To have sanctioned this by calling it "reform" would have been far worse than passing no bill at all.

What kinds of pressures are exerted on politicians? The answer is the ubiquitous personal approaches that are the stock in trade of professional lobbyists and letters and telegrams received from claim-holder and mine workers (who are persuaded that a change in the law will close the mines and destroy their jobs). Threats of campaign contributions to opponents in the next election and fear of reprisals at the polls are additional aspects of the political muscle the mining interests have exercised in Congress. The chairman of the House Interior Committee. Representative Morris K. Udall (D-Arizona), whose sympathies have always been on the side of minerals policy reform, has been subjected to just such pressures, including even a recall attempt.

Such pressure tactics can be offset only by citizens who are willing to speak up for good government and for sound public land management in the public interest. We are no longer an infant nation with vast tracts of land and measureless resources to dole out profligately. It is up to an educated national constituency to make all members of Congress aware that the time to establish a defensible minerals policy for the United States is disgracefully overdue.

Charles H. Callison, one of the nation's most prominent environmentalists, now heads the Public Lands Institute in Denver. He is a past chairman of the Natural Resources Coun cil of America and former executive vice president of the National Audubon Society.

Further reading:

Hard Rock Mining: Cases and Recommendations, by Ted Hudson (Natural Resources Council of America, Box 20, Tracys Landing, Md. 20869, 1978).

Hard Rock Mining on the Public Land, by David Sheridan (Council on Environmental Quality, 722 Jackson Place, N.W., Washington, D.C. 20006, 1977).

Hard Rock Minerals Policy: Recommendations for Replac ing the General Mining Law of 1872 (Northern Plains Resource Council, 419 Stapleton Building, Billings, Mont. 59101, 1978).