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About mineral withdrawals and 1872 Mining Law

Quick Summary

A mineral withdrawal removes specific areas of public lands from the application of the General Mining Law of 1872. The archaic law allows mining interests to develop mines and remove minerals—including gold, silver, copper and nickel—on any public land open to its operation for free.

A mineral withdrawal will prevent the location of new mining claims and largely halt new mining exploration, drilling, and mine development. Other activities, including forest restoration, grazing and recreational access, are not affected.

Both Congress and the Secretary of the Interior have the authority to establish a mineral withdrawal. The former permanently through legislation. The latter through an extensive public process, and for no longer than 20 years—unless the same purpose remains, an extension is requested and the same public process is followed. Withdrawals are subject to valid existing rights.

The antiquated law that still rules the West

Written when miners rode burros and used picks and shovels, the 1872 Mining Law still governs mining on most National Forest and BLM managed lands across the West. It allows citizens, including foreign owned corporations, to explore for minerals, mine them and purchase the land. 

Giving away public lands and valuable minerals

Under the 1872 Mining Law, valuable minerals are given away for free, priceless National Forest and BLM land is sold for as little as $2.50 per acre, and mining is allowed to take precedent over all other uses of our public trust lands.

Compounding mining’s stranglehold, the Forest Service and BLM’s position is that unless the public’s lands are withdrawn, the agencies do not have the authority to say “no” to a mine, even when it would pollute and change the land forever.[1] 

 

Rough and Ready Creek
Rough and Ready Creek is one of those “too special to mine” places. A new proposal to mine it was submitted to the Forest Service in 2011. Lawsuits are ongoing.

What is the purpose of a mineral withdrawal?

A mineral withdrawal is a management tool for withholding an area of federal public land, in our particular case, from the location of new mining claim, purchase and from mining activities such as exploration and mine development. 43 U.S.C. § 1702(j); 43 C.F.R. § 2300-0-5(h).

Withdrawals are made for the purpose of limiting mining activities on the withdrawn lands in order to maintain other public values in the area, or for reserving the area for a particular public purpose or program. These values and purposes may include protecting the quality of scientific, scenic, historical, ecological, environmental, air, water, or archaeological resources, or for other special purposes. See Forest Service Manual (FSM) 2760 (June 1, 1990) (supplemented Jan. 24, 1995).

How does a mineral withdrawal work?

A mineral withdrawal removes a specific area of public land from operation (purview) of the 1872 Mining Law.  It prohibits new mining claims and requires that mining activities on existing claims cannot be approved without the claimant showing that they have a “valid existing right” to mine at the time of the withdrawal.

Mineral withdrawals are also referred to as land withdrawals or just plain “withdrawal.” The formal language most commonly used is that the lands are “withdrawn from location and entry under the United States mining laws (30 U.S.C. Ch. 2).” It’s important to note that withdrawals, including those proposed in southwest Oregon, are subject to valid existing rights. This savings clause, protects the rights of existing claim holders (see below).

Mining claims, which exist prior to the date of withdrawal, can be mined if the claim holder can demonstrate that the claims were valid on the date of withdrawal and comply with the laws of the United States, including the 1872 Mining Law.

If existing claims can be mined, how does a withdrawal protect special areas from mining?

First only those existing claims, which have been found to have valid existing rights, can be mined in a withdrawn area. The benefits of a withdrawal can be seen in the withdrawal of the Smith River watershed in California.

There were over 5,000 existing mining claims in the Smith River National Recreation Area when the 300,000 acres of National Forest land was withdrawn in 1990.[2] Today, few claims area left. None have been mined and none have been found valid.” However, in the Grand Canyon Watershed Withdrawal, some of the existing uranium claims have been found valid and are being mined. See the U.S. Forest Service’s discussion of the Canyon Mine.

While withdrawals are imperfect at protecting valuable publics lands where there are existing claims, until Congress reforms the 1872 Mining Law, withdrawals are the only option the public has to protect places that are too special to mine.

What effect does a withdrawal have on other uses like recreation?

A withdrawal removes a special area of public lands from one particular use—mining. Closing an area to mining benefits all other users of public lands because it is no longer the dominant use.

What is a valid mining claim?

A “valid” mining claim is one that’s been subject to a formal process to determine if there’s been a “discovery of a valuable mineral deposit” and if the claim meets all other requirements of the law.

For a full discussion of what constitutes a valid mining claim read BLM’s discussion of “valid and existing rights determinations.” See also Walter B. Freeman v. U.S. Department of Interior, Memorandum Opinion, April 16, 2014, especially pages 4-6.

Closing public lands to mining protects communities. Rough and Ready Creek/Nicore Mine hearing in 1997.

How is it determined if there’s a “discovery of a valuable mineral deposit?”

The term “discovery of a valuable mineral deposit” has a precise meaning when applied to mining claim validity determinations in withdrawn areas. “Discovery” is also used when determining whether a mining claim is a constitutionally protected property right in takings lawsuits.

A valuable mineral deposit is one where a person of ordinary prudence would invest their money and labor, with reasonable expectations of developing a valuable mine. This is known as the “prudent person test.”

The Supreme Court added another dimension to the definition of a valuable mineral deposit—economics. Known as the “marketability test,” it requires a reasonable possibility that the minerals mined can be sold at a profit.

Equally important, there has to be the actual physical exposure (discovery) of a valuable mineral deposit on the date of withdrawal for a mining claim in a withdrawn area to be valid and for there to be a right to mine.

See BLM’s discussion of what constitutes discovery of a valuable mineral deposit.

Constitutional rights are dependent on mining claim validity.

Kalmiopsis Rivers

The “subject to valid existing rights” clause that accompanies withdrawals protects a miner’s constitutional rights.[3] If an existing claim in a withdrawn area is found to be valid, it can be mined.

The District Court of the District of Columbia issued and opinion explaining that until it’s been determined that there’s been a discovery of a “valuable mineral deposit,” a claimant has only has a “gratuity” from the United States.[3] In other words, an unpatented mining claim without a validity determination is not property protected by the Constitution.

See the USDI’s explanation of valid existing rights in this press release for the withdrawal of National Forest and BLM lands around the Grand Canyon.

When is a valid existing rights determination required in a withdrawn area?

Determining a mining claim’s validity is a complicated and expensive process and can take years. However, a validity determination is only required when an individual or mining company with existing mining claims submits a mining plan of operations to conduct mining activities in a withdrawn area.

The authority to withdraw National Forest and BLM-managed lands

Congress has the authority to withdraw federal public lands from the 1872 Mining Law. This can happen through specific straightforward legislation such as the North Fork Watershed Protection Act, which was signed into law in December of 2014, to protect part of the Flathead River in Montana, or in more fully protective legislation, which automatically withdraws designated areas from mining.

Congress also granted the Secretary of Interior authority to temporarily withdraw public lands under the Federal Land Policy and Act of 1976 (FLPMA). A withdrawal under FLPMA is known as a secretarial withdrawal. It can be for no longer than 20 years but can be extended. Seventeen miles of the Wild and Scenic Chetco River were temporarily withdrawn under the FLPMA withdrawal authority in 2013.

Finally, the President can withdraw federal lands under the Antiquities Act.

Mineral withdrawals under Federal Land Policy and Management Act

Because the BLM manages the minerals found on National Forests and BLM lands, withdrawals by the Secretary of Interior (under FLPMA) are processed by the BLM under the agency’s withdrawal regulations at 43 CFR subpart 2310.

BLM’s bare bones definition of a mineral withdrawal can be found here and an explanation of the types of withdrawals here—including withdrawals that close areas to mining. Under FLPMA, withdrawals are broadly defined as:

Withholding an area of Federal land from settlement, sale, location, or entry, under some or all of the general land laws, for the purpose of limiting activities under those laws in order to maintain other public values in the area or reserving the area for a particular public purpose or program. USC , vol. 48, section, 1702(j).

Testifying before the Del Norte County Board of Supervisors in opposition to the Cleopatra Mine Project in the Oregon half of the North Fork Smith watershed.

The process for a secretarial withdrawal begins when one or more federal land managing agencies submit an application to the BLM to withdraw an area.

If the application is accepted, a notice is published in the Federal Register for the proposed withdrawal. The notice temporarily closes the area to mining for two years while the analysis is completed and paperwork for the withdrawal is submitted to the Secretary of Interior for approval or disapproval.

Opportunities for public participation

The Federal Register Notice announcing a proposed withdrawal begins the public’s opportunity for comment. There’s also opportunity for public participation during the environmental analysis phase required by the National Environmental Policy Act.

Background | the 1872 Mining Law giveaway

Under the 1872 Mining Law the valuable minerals found on National Forest and BLM-managed land are given away, whether to individuals or multinational corporations. And under the patenting provision of the 1872 Mining Law the lands is given away too.  These are huge subsidies to the mining industry.  According to Earthworks:

“Federal public lands open to mining and acquisition under the General Mining Act of 1872 constitutes more than 15% of all the land in the United States, or two thirds of the lands the federal government holds in trust for all Americans (emphasis added).”

But that’s not the end of the subsidies. Many mines become Superfund sites, with the taxpayer footing the bill for cleanup.

 Notes 

[1] According to the Rogue River-Siskiyou National Forest in the Preliminary Decision Memo for the RF-38 Test Drill for the Red Flat Nickel Corporation at Red Flat in the headwaters of Hunter Creek:

Under [the General Mining Law of 1872] and related case law, the United States Department of Agriculture (USDA) Forest Service has no authority to prohibit an otherwise reasonable plan of operations for such mining (i.e., one that can be characterized as the logical next step in the orderly development of a mine).

[2] See preamble to Surface Mining Regulations for the Smith River National Recreation Area.

[3] An explanation of what constitutes a valid mining claim—one that’s a property right against the United States and is protected by the 5th Amendment of the Constitution—is found in Walter B. Freeman v. U.S. Department of Interior, Memorandum Opinion, April 17, 2014, pages 4-6.

The case concerns BLM’s findings that the Rough and Ready Creek/Nicore mining claims were not valid in 1994 and 2000. In short the District Court of the District of Columbia found that a mining claim that has not been subject to a validity determination is only a “potential property interest.” Citing Supreme Court rulings, the District of Columbia, District Court found that:

An unpatented mining claim is valid against the United States only when both a discovery of valuable mineral deposit within the limits of the claim has been made, and the claimant has complied with all statutory and regulatory requirements relating to the location, recordation, and filing of claims.

If an existing mining claim in a withdrawn area is valid, then the claimant’s right to mine is unaffected. Therefore, any potential constitutional rights an existing claim holder may have are protected.

Update 5/12/2016 – The District of Columbia Court of Appeals upheld all of the the District Court’s findings on April 29, 2016. The opinion is unpublished but can be accessed through PACER. To request a copy use our contact form.

Additional reading on the 1872 Mining Law